ARE DOWNLOADERS FREELOADERS?
Stone once stated, "Before there was Jewel, there
was Janis Ian." In 1966, at the age of 15, Ian's career
exploded with the release of her controversial tale of teenage
interracial love, "Society's Child." The self-penned
song topped the charts and created a storm of controversy that
featured Ian on The Tonight Show and in Life, Time
and Newsweek. Her debut album, 1967's Janis Ian,
earned Ian the first of nine Grammy nominations.
Ian soared to new heights in the 1970s with her trio of masterpiece
albums: Stars, Between the Lines, and Aftertones.
Stars included the hit song "Jesse," which
Roberta Flack made a pop standard. Between the Lines
propelled Ian to superstardom with "At Seventeen."
The single sold more than a million copies, and Ian was nominated
for a then-unprecedented five Grammy awards, winning two. Aftertones
proved to be one of the most critically acclaimed albums of
its day, garnering Ian her first Japanese hit, "Love Is
Blind," which stayed at #1 for an astonishing six months.
and other articles can be found on Janis
NARAS (home of Grammy Awards) people told me downloads were
destroying sales, ruining the music industry, and costing you
pretend to be an expert on intellectual property law, but I
do know one thing. If music industry executives claim I should
agree with their agenda because it will make me more money,
I put my hand on my wallet . . . and check it after they leave,
just to make sure nothing's missing.
I suspicious of all this hysteria? You bet. Do I think the issue
has been badly handled? Absolutely. Am I concerned about losing
friends, opportunities, my 10th Grammy nomination by publishing
this article? Yeah. I am. But sometimes things are just wrong,
and when they're that wrong, they have to be addressed.
premise of all this ballyhoo is that the industry (and its artists)
are being harmed by free downloading.
Let's take it from my personal experience. My site (www.janisian.com
) gets an average of 75,000 hits a year. Not bad for someone
whose last hit record was in 1975. When Napster was running
full-tilt, we received about 100 hits a month from people who'd
downloaded "Society's Child" or "At Seventeen"
for free, then decided they wanted more information. Of those
100 people (and these are only the ones who let us know how
they'd found the site), 15 bought CDs. Not huge sales, right?
No record company is interested in 180 extra sales a year. But
. . . that translates into $2700, which is a lot of money in
my book. And that doesn't include the ones who bought the CDs
in stores, or who came to my shows.
take author Mercedes Lackey, who occupies entire shelves in
stores and libraries. As she said herself: "For the past
ten years, my three "Arrows" books, which were published
by DAW about 15 years ago, have been generating a nice, steady
royalty check per pay-period each. A reasonable amount for fifteen-year-old
books. However, I just got the first half of my DAW royalties,
and suddenly, out of nowhere, each Arrows book has paid me three
times the normal amount! And because those books have never
been out of print, and have always been promoted along with
the rest of the backlist, the only significant change during
that pay-period was something that happened over at Baen, one
of my other publishers. That was when I had my co-author Eric
Flint put the first of my Baen books on the Baen Free Library
site. Because I have significantly more books with DAW than
with Baen, the increases showed up at DAW first. There's an
increase in all of the books on that statement, actually, and
what it looks like is what I'd expect to happen if a steady
line of people who'd never read my stuff encountered it on the
Free Library - a certain percentage of them liked it, and started
to work through my backlist, beginning with the earliest books
published. The really interesting thing is, of course, that
these aren't Baen books, they're DAW - another publisher - so
it's 'name loyalty' rather than 'brand loyalty.' I'll tell you
what, I'm sold. Free works."
found that to be true myself; every time we make a few songs
available on my website, sales of all the CDs go up. A lot.
I don't know about you, but as an artist with an in-print record
catalogue that dates back to 1965, I'd be thrilled to see sales
on my old catalogue rise.
RIAA (Recording Industry Association of America) and NARAS,
as well as most of the entrenched music industry, are arguing
that free downloads hurt sales. (More than hurt - they're saying
it's destroying the industry.)
the music industry needs no outside help to destroy itself.
We're doing a very adequate job of that on our own, thank you.
are a few statements from the RIAA's website:
report that just one of the many peer-to-peer systems in operation
is responsible for over 1.8 billion unauthorized downloads
per month". (Hilary B. Rosen, head of RIAA, letter to
the Honorable Rick Boucher, Congressman, February 28, 2002)
2. "Sales of blank CD-R discs have . . . grown nearly
2 ½ times in the last two years . . . if just half
the blank discs sold in 2001 were used to copy music, the
number of burned CDs worldwide is about the same as the number
of CDs sold at retail." (Hilary B. Rosen letter to the
Honorable Rick Boucher, Congressman, February 28, 2002)
3. "Music sales are already suffering from the impact
. . . in the United States, sales decreased by more than 10%
in 2001."(Hilary B. Rosen letter to the Honorable Rick
Boucher, Congressman, February 28, 2002)
4. "In a recent survey of music consumers, 23% . . .
said they are not buying more music because they are downloading
or copying their music for free."(Hilary B. Rosen letter
to the Honorable Rick Boucher, Congressman, February 28, 2002)
Let's take these points one by one, but before that, let me remind
you of something: the music industry had exactly the same response
to the advent of reel-to-reel home tape recorders, cassettes,
DATs, minidiscs, VHS, BETA, music videos, MTV and a host of other
technological advances designed to make the consumer's life easier
and better. I know because I was there.
only reason they didn't react that way publicly to the advent
of CDs was because they believed CD's were uncopyable. I was
told this personally by a former head of Sony marketing, when
they asked me to license Between the Lines in CD format
at a reduced royalty rate. ("Because it's a brand new technology.")
1. Who's to say
that any of those people would have bought the CD's if the
songs weren't available for free? I can't find a single study
on this, one where a reputable surveyor such as Gallup actually
asks people that question. I think no one's run one because
everyone is afraid of the truth -- most of the downloads are
people who want to try an artist out, or who can't find the
music in print.
And if a percentage of that 1.8 billion is because people
are downloading a current hit by Britney or In Sync, who's
to say it really hurt their sales? Soft statistics are easily
manipulated. How many of those people went out and bought
an album that had been over-played at radio for months, just
because they downloaded a portion of it?
2. Sales of blank
CDs have grown? You bet. I bought a new Vaio in December (ironically
enough, made by Sony), and now back up all my files onto CD.
I go through 7-15 CD's a week that way, or about 500 a year.
Most new PC's come with XP, which makes backing up to CD painless;
how many people are doing what I'm doing? Additionally, when
I buy a new CD, I make a copy for my car, a copy for upstairs,
and a copy for my partner. That's three blank discs per CD.
So I alone account for around 750 blank CDs yearly.
3. I'm sure the
sales decrease had nothing to do with the economy's decrease,
or a steady downward spiral in the music industry, or the
garbage being pushed by record companies. Aren't you? There
were 32,000 new titles released in this country in 2001, and
that's not including re-issues, DIY's, or smaller labels that
don't report to SoundScan. Our "Unreleased" series,
which we haven't bothered Sound-Scanning, sold 6,000+ copies
last year. A conservative estimate would place the number
of ‘newly available’ CD's per year at 100,000.
That's an awful lot of releases for an industry that's being
destroyed. And to make matters worse, we hear music everywhere,
whether we want to or not: stores, amusement parks, highway
rest stops. The original concept of Muzak (to be played in
elevators so quietly that its soothing effect would be subliminal)
has run amok. Why buy records when you can learn the entire
Top 40 just by going shopping for groceries?
4. Which music
consumers? College kids who can't afford to buy 10 new CDs
a month, but want to hear their favorite groups? When I bought
my nephews a new Backstreet Boys CD, I asked why they hadn't
downloaded it instead. They patiently explained to their senile
aunt that the download wouldn't give them the cool artwork,
and more important, the video they could see only on the CD.
Realistically, why do most people download music? To hear new
music, or records that have been deleted and are no longer available
for purchase. Not to avoid paying $5 at the local used CD store,
or taping it off the radio, but to hear music they can't find
anywhere else. Face it -- most people can't afford to spend $15.99
to experiment. That's why listening booths (which labels fought
against, too) are such a success.
can't hear new music on radio these days. I live in Nashville,
Music City USA, and we have exactly one station willing to play
a non-top-40 format. On a clear day, I can even tune it in.
The situation's not much better in Los Angeles or New York.
College stations are sometimes bolder, but their wattage is
so low that most of us can't get them.
other major point: in the hysteria of the moment, everyone is
forgetting the main way an artist becomes successful - exposure.
Without exposure, no one comes to shows, no one buys CDs, no
one enables you to earn a living doing what you love. Again,
from personal experience: in 37 years as a recording artist,
I've created 25+ albums for major labels, and I've never once
received a royalty check that didn't show I owed them money.
So I make the bulk of my living from live touring, playing for
80-1500 people a night, doing my own show. I spend hours each
week doing press, writing articles, making sure my website tour
information is up to date. Why? Because all of that gives me
exposure to an audience that might not come otherwise. So when
someone writes and tells me they came to my show because they'd
downloaded a song and gotten curious, I am thrilled!
gets hurt by free downloads? Save a handful of super-successes
like Celine Dion -- none of us. We only get helped.
not to hear Congress tell it. Senator Fritz Hollings, chairman
of the Senate Commerce Committee studying this, said, "When
Congress sits idly by in the face of these [file-sharing] activities,
we essentially sanction the Internet as a haven for thievery,"
then went on to charge "over 10 million people" with
stealing. [Steven Levy, Newsweek 3/11/02]. That's what we think
of consumers -- they're thieves, out to get something for nothing.
Most consumers have no problem paying for entertainment. One
has only to look at the success of Fictionwise.com and the few
other websites offering books and music at reasonable prices
to understand that. If the music industry had a shred of sense,
they'd have addressed this problem seven years ago, when people
like Michael Camp were trying to obtain legitimate licenses
for music online. Instead, the industry-wide attitude was "It'll
go away." That's the same attitude CBS Records had about
rock 'n' roll when Mitch Miller was head of A&R. (And you
wondered why they passed on The Beatles and The Rolling Stones.)
blame the RIAA for Holling's attitude. They are, after all,
the Recording Industry Association of America, formed so the
labels would have a lobbying group in Washington. (In other
words, they're permitted to make contributions to politicians
and their parties.) But given that our industry's success is
based on communication, the industry response to the Internet
has been abysmal. Statements like the one above do nothing to
help the cause.
course, communication has always been the artist's job, not
the executives. That's why it's so scary when people like current
NARAS president Michael Greene begin using shows like the Grammy
Awards to drive their point home.
not going to go into the Los Angeles Times' Pulitzer
Prize-winning series on Greene and NARAS, where they pointed
out that MusiCares has spent less than 10% of its revenue on
disbursing emergency funds for people in the music industry
(its primary purpose), or that Greene recorded his own album,
pitched it to record executives while discussing Grammy business,
then negotiated a $250,000 contract with Mercury Records for
it (later withdrawn after the public flap). Or that NARAS quietly
paid out at least $650,000 to settle a sexual harassment suit
against him, a portion of which the non-profit Academy paid.
Or that he's paid two million dollars a year, along with "perks"
like his million-dollar country club membership and Mercedes.
(Though it does make one wonder when he last entered a record
store and bought something with his own hard-earned money.)
just note that in his speech he told the viewing audience that
NARAS and RIAA were, in large part, taking their stance to protect
artists. He hired three teenagers to spend a couple of days
doing nothing but downloading, and they managed to download
6,000 songs. Come on. For free ‘front-row seats’
at the Grammys and an appearance on national TV, I'd download
twice that amount! But who's got time to download that many
songs? Does Greene really think people out there are spending
twelve hours a day downloading our music? If they are, they
must be starving to death, because they're not making a living
or going to school. How many of us can afford a T-1 line?
sort of thing is indicative of the way statistics and information
are being tossed around. It's dreadful to think that consumers
are being asked to take responsibility for the industry's problems,
which have been around far longer than the Internet. It's even
worse to think that consumers are being told they are charged
with protecting us, the artists, when our own industry squanders
the dollars we earn on waste and personal vendettas.
went on to say that "Many of the nominees here tonight,
especially the new, less-established artists, are in immediate
danger of being marginalized out of our business." Right.
Any new artist who manages to make the Grammys has millions
of dollars in record company money behind them. The real new
artists aren't people you're going to see on national TV, or
hear on most radio. They're people you'll hear because someone
gave you a disc, or they opened at a show you attended, or were
lucky enough to be featured on NPR or another program still
open to playing records that aren't already hits.
to artists being "marginalized out of our business,"
the only people being marginalized out are the employees of
our Enron-minded record companies, who are being fired in droves
because the higher-ups are incompetent.
it's difficult to convince an educated audience that artists
and record labels are about to go down the drain because they,
the consumer, are downloading music. Particularly when they're
paying $50-$125 apiece for concert tickets, and $15.99 for a
new CD they know costs less than a couple of dollars to manufacture
Greene thinks of downloaders as the equivalent of an old-style
television drug dealer, lurking next to playgrounds, wearing
a big coat and whipping it open for wide-eyed children who then
purchase black market CDs at generous prices.
the new industry byword? Encryption. They're going to make sure
no one can copy CDs, even for themselves, or download them for
free. Brilliant, except that it flouts previous court decisions
about blank cassettes, blank videotapes etc. And it pisses people
many of you know that many car makers are now manufacturing
all their CD players to also play DVDs? or that part of the
encryption record companies are using doesn't allow your store-bought
CD to be played on a DVD player, because that's the same technology
as your computer? And if you've had trouble playing your own
self-recorded copy of O Brother Where Art Thou in the
car, it's because of this lunacy.
industry's answer is to put on the label: "This audio CD
is protected against unauthorized copying. It is designed to
play in standard audio CD players and computers running Windows
O/S; however, playback problems may be experienced. If you experience
such problems, return this disc for a refund."
I ask you. After three or four experiences like that, schlepping
to the store to buy it, then schlepping back to return
it (and you still don't have your music), who's going to bother
industry has been complaining for years about the stranglehold
the middle-man has on their dollars, yet they wish to do nothing
to offend those middlemen. (BMG has a strict policy for artists
buying their own CDs to sell at concerts - $11 per CD. They
know very well that most of us lose money if we have to pay
that much; the point is to keep the big record stores happy
by ensuring sales go to them. What actually happens is no sales
to us or the stores.) NARAS and RIAA are moaning about the little
mom & pop stores being shoved out of business; no one worked
harder to shove them out than our own industry, which greeted
every new Tower or mega-music store with glee, and offered steep
discounts to Target and Wal-Mart et al for stocking
CDs. The Internet has zero to do with store closings and lowered
for those of us with major label contracts who want some of
our music available for free downloading . . . well, the record
companies own our masters, our outtakes, even our demos, and
they won't allow it. Furthermore, they own our voices for the
duration of the contract, so we can't even post a live track
you think about it, the music industry should be rejoicing at
this new technological advance! Here's a fool-proof way to deliver
music to millions who might otherwise never purchase a CD in
a store. The cross-marketing opportunities are unbelievable.
It's instantaneous, costs are minimal, shipping non-existent
. . . a staggering vehicle for higher earnings and lower costs.
Instead, they're running around like chickens with their heads
cut off, bleeding on everyone and making no sense. As an alternative
to encrypting everything, and tying up money for years (potentially
decades) fighting consumer suits demanding their first amendment
rights be protected (which have always gone to the consumer,
as witness the availability of blank and unencrypted VHS tapes
and cassettes), why not take a tip from book publishers and
Free Library is one success story. SFWA is another. The SFWA
site is one of the best out there for hands-on advice to writers,
featuring in depth articles about everything from agent and
publisher scams, to a continuously updated series of reports
on various intellectual property issues. More important, many
of the science fiction writers it represents have been heavily
involved in the Internet since its inception. Each year, when
the science fiction community votes for the Hugo and Nebula
Awards (their equivalent of the Grammys), most of the works
nominated are put on the site in their entirety, allowing voters
and non-voters the opportunity to peruse them. Free. If you
are a member or associate (at a nominal fee), you have access
to even more works. The site is also full of links to members'
own web pages and on-line stories, even when they aren't nominated
for anything. Reading this material, again for free, allows
browsers to figure out which writers they want to find more
of -- and buy their books. Wouldn't it be nice if all the records
nominated for awards each year were available for free downloading,
even if it were only the winners? People who hadn't bought the
albums might actually listen to the singles, then go out and
purchase the records.
no objection to Greene et al trying to protect the
record labels, who are the ones fomenting this hysteria. RIAA
is funded by them. NARAS is supported by them. However, I
object vehemently to the pretence that they are in any way doing
this for our benefit. If they really wanted to do something
for the great majority of artists, who eke out a living against
all odds, they could tackle some of the real issues facing us:
· The normal
industry contract is for seven albums, with no end date, which
would be considered at best indentured servitude (and at worst
slavery) in any other business. In fact, it would be illegal.
A label can shelve your project, then extend your contract
by one more album because what you turned in was "commercially
or artistically unacceptable." They alone determine that
Singer-songwriters have to accept the "Controlled Composition
Clause" (which dictates that they'll be paid only 75%
of the rates set by Congress in publishing royalties) for
any major or subsidiary label recording contract, or lose
the contract. Simply put, the clause demanded by the labels
provides that (a) if you write your own songs, you will only
be paid 3/4 of what Congress has told the record companies
they must pay you, and (b) if you co-write, you will use your
”best efforts" to ensure that other songwriters
accept the 75% rate as well. If they refuse, you must agree
to make up the difference out of your share.
Congressionally set writer/publisher royalties have risen
from their 1960s’ high (2 cents per side) to a munificent
Many of us began in the 50s and 60s; our records are still
in release, and we're still being paid royalty rates of 2%
(if anything) on them.
If we're not songwriters, and not hugely successful commercially
(as in platinum-plus), we don't make a dime off our recordings.
Recording industry accounting procedures are right up there
Worse yet, when records go out-of-print, we don't get them
back! We can't even take them to another company. Careers
have been deliberately killed in this manner, with the record
company refusing to release product or allow the artist to
take it somewhere else.
And because a record label "owns" your voice for
the duration of the contract, you can't go somewhere else
and re-record those same songs they turned down.
And because of the re-record provision, even after your contract
is over, you can't record those songs for someone else for
years, and sometimes decades.
Last but not least, America is the only country I am aware
of that pays no live performance royalties to songwriters.
In Europe, Japan, Australia, when you finish a show, you turn
your set list in to the promoter, who files it with the appropriate
organization, and then pays a small royalty per song to the
writer. It costs the singer nothing, the rates are based on
venue size, and it ensures that writers whose songs no longer
get airplay, but are still performed widely, can continue
receiving the benefit from those songs.
Additionally, we should be speaking up, and Congress should be
listening. At this point they're only hearing from multi-platinum
acts. What about someone like Ani Difranco, one of the most trusted
voices in college entertainment today? What about those of us
who live most of our lives outside the big corporate system, and
who might have very different views on the subject?
is zero evidence that material available for free online downloading
is financially harming anyone. In fact, most of the hard evidence
is to the contrary.
and the RIAA are correct in one thing -- these are times of
great change in our industry. But at a time when there are arguably
only four record labels left in America (Sony, AOL/Time/Warner,
Universal, BMG -- and where is the RICO act when we need it?)
. . . when entire genres are glorifying the gangster mentality
and losing their biggest voices to violence . . . when executives
change positions as often as Zsa Zsa Gabor changed clothes,
and “A&R” has become a euphemism for "Absent
& Redundant" . . . well, we have other things to worry
absurd for us, as artists, to sanction -- or countenance --
the shutting down of something like this. It's sheer stupidity
to rejoice at the Napster decision. Short-sighted, and ignorant.
exposure is practically a thing of the past for entertainers.
Getting your record played at radio costs more money than most
of us dream of ever earning.
downloading gives a chance to every do-it-yourselfer out there.
Every act that can't get signed to a major, for whatever reason,
can reach literally millions of new listeners, enticing them
to buy the CD and come to the concerts. Where else can a new
act, or one that doesn't have a label deal, get that kind of
note that I am not advocating indiscriminate downloading without
the artist's permission. I am not saying copyrights are meaningless.
I am objecting to the RIAA spin that they are doing this “to
protect the artists," and make us more money. I am annoyed
that so many records I once owned are out of print, and the
only place I could find them was Napster. Most of all, I'd like
to see an end to the hysteria that causes a group like RIAA
to spend over 45 million dollars in 2001 lobbying "on our
behalf," when every record company out there is complaining
that they have no money.
artists, we have the ear of the masses. We have the trust of
the masses. By speaking out in our concerts and in the press,
we can do a great deal to damp this hysteria, and put the blame
for the sad state of our industry right back where it belongs
-- in the laps of record companies, radio programmers, and our
own apparent inability to organize ourselves in order to better
our own lives -- and those of our fans. If we don't take the
reins, no one will.