July 12, 2003

Re-Opening the Copyright Can of Worms

It's pretty clear to me that people who make this sort of anti-copyright argument have never been within sneering distance of an actual recording budget. At least, that's what I always think when I hear people toss out phrases like "the low costs of production" when it comes to rock records.

Stepping off from a couple of Volokh Conspiracy posts (here and here) on the ethics of unauthorized copying, Steve from Begging to Differ dismisses the ethical question entirely and focuses only on the utilitarian argument, which he still finds wanting. Record companies are middlemen, not creators, he writes; and the notion that undercutting the profitability of intellectual property creates a disincentive for artists to continue to produce is a "fallacy." The RIAA is entirely and uniquely to blame for propagating this idea, and they are lying. "The law," he concludes (referring to copyright law itself) "is an ass."

Certainly, record companies are not creators. But they are providers of capital to fund the creation of means to communicate the work of creators. They may misbehave, but the reason it matters when they misbehave is that they play a non-trivial role in the process of creating and releasing recorded music. Or am I an ass?

But let's assume Steve is right: we abolish copyrights, and not a single writer, musician or creator is deterred or prevented from continuing to write material. We have the exact same number of songs we would have had otherwise. Songwriters bequeath their work to the world, out of philanthropy or sheer egomania, and figure out other ways to make use of it other than selling it or licensing it to others to sell in exchange for royalties. All we have done is pulled the rug out from under the corrupt, archaic industry that manufactures the little pieces of plastic, which aren't needed anyway. The consumer is free from the rapacious antics of the archaic Industry; the artist is free from the r. a. o. t. a. I.; music is Free (from the r. a. o. t. a. I.)

Sounds great. What I still can't figure out, though, as I've said time and again, is: if nobody has to buy anything, where do you get the money to make the recordings? It's hell of expensive. As it stands, you get it from a record company, which advances you the money in the expectation that it can be recouped by exploiting the resulting product; or you do it small-scale by yourself and or with friends, not calling it a company perhaps, but still stuck with the reality that every dollar you spend has to come from somewhere. But we're declaring this method, this entire model, illegitimate, a fallacy, an "ass".

What are we supposed to do, have a PBS-style pledge drive or something? Let me know if you really have figured out a way to record an album for free, because it would really help me out right now.

UPDATE: Steve has responded. "None of the hating or complaining or wistful wishing will deter the Grim Reaper as he comes knock-knock-knocking on the record industry's door." Oh well, it was worth a shot!

Sadly, Steve doesn't have (or is disinclined to share) the secret of how to record an album without a budget. Apparently though, Ani de Franco and some other folks I've never heard of do it all the time. Kind of a desktop publishing type of deal where you use your parents' iMac and some pro tools, and end up sounding like Jeff Beck. Or something like that. I've got to get with it.

Posted by Dr. Frank at July 12, 2003 07:48 PM | TrackBack

Am I missing something? What possible difference does it make that that "record companies are not creators?" Song writers are creators and, because of the copyright laws, they have certain exclusive rights to exploit the songs they create. Some musicians sell their exclusive rights in their songs to record companies for money. The fact that copyrights are alienable increases their value, and therefore increases their utlility as an incentive to create. How does the fact that record companies are not themselves creating the songs change this analysis? Safeway doesn't grow apples, but that doesn't mean the law against stealing apples from Safeway "is an ass." I agree that the RIAA does not always act in the interests of musicians, and that certain of its recent actions in connection with file sharing are misguided, but none of that implicates the fundamental principles of IP law.

Posted by: Aaron at July 12, 2003 08:26 PM

I'm sensing that you are pretty frustrated with the whole "business" end of the recording process. I know that in the past you have made come pretty harsh comments regarding Lawrence Livermore and Lookout. I also know that you've been with lookout since day one and probably feel some form of loyalty to them. How much have you considered jumping ship? This may be nothing more that just a logical connection, but have you considered maybe talking with Billy Joe Armstrong about working out a deal to be with his label, Adeline? I don't know if you were ever friends with him or not, but I do know that Green Day used to open up for you guys and you both probably have talked within the lookout circle before. I know there are tons of other labels out there that are owned by guys you probably know, like Fat Mike's Fat Wreck-Chords etc... Anyway, was just wondering because a lot of us who only buy and listen to the music are not privy to the business end of it and I for one find it intriguing.

Posted by: Channon at July 12, 2003 08:52 PM

Ever notice that people who do this type of grandstanding never have a comments or discussion section? Is it because they are so convinced they are right that they think the only comment we would have is "Wow, you are so brilliant and so right!" and they don't have the time to read our out pouring of support? Or, is it that they know damn well they are full of crap and they don't wanted pointed out over and over? Anyway, our fair author really would like to us to think he has built some great philosophical argument, but just comes of sounding like a windbag. I am so annoyed with his use of the word fallacy I don't know where to start. Grrrr.......

Posted by: che at July 12, 2003 09:14 PM

I kinda agree with Frank's comments in the sense that I agree that abolishing copyright doesn't make any sense (holy crap barry bonds just hit a long home run). I took a cyberspace law class last semester and I think the problem isn't the idea of copyright. The problem that exists is two fold: First, the government has tried to fit new technology into existing copyright law and all it ends up doing is just making everything very contradictory and confusing and impossible to reconcile and enforce with any consistency. For instance did you know that under wiretap law the gov't needs a warrant to go to your isp and find out who you are but a private entity like a record company could go and get it without a warrant. Further even if the gov't didn't get a warrant anything they get isn't subject to suppression because there's no expectation of privacy. Make sense...of course it doesn't. This is the type of thing that happens when you jam things into areas where they don't belong.
Problem 2 is the record companies themselves along with clear channel. Has anyone seen how much the chain music stores are charging for a cd lately? It's ridiculous. I walked into one about a month ago and it was like $19. On top of that clear channel owns the airwaves so only about 20 bands get any exposure at any given point in time. My brother sent me this website with all the bands that clear channel promotions books and how much it is to book one of their acts. It was interesting to see how much these people actually get paid to play and to see that they pretty much control booking for every major artist. When they control who is on the radio and who is playing on tour it forces people to seek alternative means to find new good music. I'm not saying it justifies fucking the artist out of money but there's a definite cause and effect happening. I'm done now

Posted by: Justin at July 12, 2003 10:06 PM

If copyright restrictions aren't enforced because music is a nonrival good, then music becomes a nonexcludable good. Generally goods falling under this classification won't be produced privately. That's just microecon 101.

yeah, a comments thing would be nice...

Posted by: spacetoast at July 13, 2003 12:57 AM

Very interesting discussion!

Sorry about the lack of comments at Begging To Differ, folks! I swear we're not trying to stifle dissent - we're very new to the blogging world and we simply decided to start off without comments. We've talked about it, and we may open up comments at some point - I don't know. We're definitely not against comments per se - these comments here are fascinating, for example.

My response to Dr. Frank is here:


Like Dr. Frank, I state things in strong terms for the purpose of entertainment and to provoke thought. I certainly do not think I know all the answers, and I'm perfectly willing to have my mind changed on this issue or any other.

Best to you all.


Posted by: Steve at July 13, 2003 03:04 AM


I'm not going to speak to Steve's "grandstanding." He can do that for himself (and he has). I do not really share his view of copyright laws.

But I did want to address your issue about why we don't have comments on our blog. I've blogged about this issue myself before (here: http://www.beggingtodiffer.com/archives/2003_06.html#000131). It's *not* that any of us at Begging to Differ are so convinced that we are right that no one could have anything to add. Rather, we debated the topic back and forth and determined that, for the time being, we would rather not a) risk people posting offensive or harassing comments on our blog; or b) police our comments to avoid publishing offensive or harassing comments. We may someday decide that comments would be a good idea. We're still a young blog, and I'm sure somethings will change. But I don't think your characterizations are anywhere close to our reasons for not having comments.

We do post our email addresses and a link for letters. So far, no one has used it. If and when we do get email, we'll respond on the blog.

If you really just want to disagree with Steve, then feel free. I know I enjoy it, and I'm pretty sure Steve does too.

Posted by: Greg at July 13, 2003 04:00 AM

OK, Steve, it still seems to me that you don't understand the economics of recorded music all that well; but maybe I'm just not attuned to your vision of the future, where everyone makes their own records on their home computers and it doesn't cost anyone anything. (One question: how do you do drums like that? I only ask because it could save me several thousand dollars if we didn't have to bother setting Jym up in the studio.)

As Aaron says, though, that doesn't touch on the copyright issue in any way. And it doesn't touch the ethical issue either.

Posted by: Dr. Frank at July 13, 2003 04:10 AM

Not to put words in Frank's mouth, Steve, but I don't think he was talking about bands on major labels. I live in a city with a thriving independent music scene. I know lots of people who are signed to *indie* labels. They sign to these labels because they can not afford to produce their own records or pay out of pocket to tour.

Let me add that producing music on your home computer is extremely artificial and I don't know of any band who would want to make music that way. It also doesn't take into consideration the cost of touring and marketing your product.

Also, Ani DiFranco created her own label by touring non stop and SELLING records. This is, after all, what we're talking about. Ani has a lot of bands signed to her label and she has to front the cash so those bands can make records. If no one buys those records, Ani doesn't have a label anymore. Have you been to one of her shows lately? Her ticket prices are astronomical!

Steve, maybe you should educate yourself before you make any more comments...


Posted by: Lynn at July 13, 2003 05:19 AM

Of course his argument has nothing to do with the copyright issue. It's all about the way he feels the recording industry *should* be. But even that is based on misinformation about how it already *is.* For example, his assertion that the cost of recording declines every day. It's simply not true. As Frank pointed out, recording on a G4 in your apartment is an impossiblity if you have a real drummer (maybe in the new business model we'd all be using drum machines...). If your apartment is an in urban area, I guess you just record the outside ambient noise when putting down tracks (vocals would be a blast). Even if it isn't, I suppose you just wait out the kids upstairs running back and forth. And of course, there would be no problems with the neighbors or the landlord - they'd be happy to listen to you playing your guitar lead a hundred times or so over a few days. Time is money, but I guess in the *new* model we'd all have unlimited time as well, and during that time, we'd have an idyllic set-up where mikes and amps in our apartment/studio would never have to be moved to make way for normal living space. But until this fantasy world becomes a reality, those of us who are working as musicians are dealing with ever rising costs of producing records. In 1979 when I started buying records regularly they cost $4.00 for a new release. Even at a high list of $17.99 (Frank's releases don't list as high as that, by the way), record prices don't even come close to reflecting the increase in cost that has occurred in every aspect of recording (uh, except, I assume, the whole Mac recording thing). As it stands, I have no interest in hearing only that music that can be recorded properly on a Mac, for what I truly hope are obvious reasons. Talentless goofs armed with Casios, drum machines and practice amps recording their self-indulgent crap in their bedrooms is hardly a new concept, it's simply a justly-ignored one. As to those who *do* have talent and can indeed record everything on a Mac, that's great. I guess the idea is that since some *can* do it, we all *should*. Who knows, maybe in this guy's world, drums and amps are simply part of the crippled, dying business model. Either way, it's clear that recording engineers and producers are part of that dying busienss model and should be discarded. Musicians should be recording engineers - we'd have to be to go the aparently free Mac route (by the way, I missed the free G4/recording software/recording hardware handouts - where is that again?).

Bizarrely, this guy even suggests that people like Frank are *happy* with the current business model, as if the vast majority of working musicians like Frank are handed virtually limitless sums of money with which they can then dick around in overpriced studios to their heart's content. I'm fairly confident that I speak for Frank when I say if you have any ideas for a better way, he'd love to hear them. So would I and a hell of a lot of other working musicians. As it stands, the assertion that recording equipment that once filled an entire studio now fits inside a Mac G4 is, to repeat, simply not true (unless the studio was an exceptionally crappy one set up by some guy in his bedroom). Besides which, G4's don't come standard with any recording gear. It still costs money and we're still all waiting to hear where the money comes from if not from record sales. I heard the same arguments about recording cheaply when ADATs became popular and every pinhead with 10K was opening a studio. Where are they now? Oh yeah, the technology sucked, the "engineers" couldn't handle anything that wasn't covered in their ADAT operating manuals and nobody wanted to pay even *cheap* prices for the use of sub-standard gear set up in lousy-sounding rooms. Right.

Then again, this is a guy who says that if musicians only make music out of philanthropy and egomania that such a scenario "sounds about right."

Last, I take issue with the argumentative assertion that Frank claimed that musicians need record companies to front "large recording budgets." "Large" is subjective anyway, but even if it weren't, Frank never said or even implied anything like that. It sounds like a good thing to argue against - the only problem is, nobody made the argument to begin with. What Frank has been saying all along is simply that if people who own your record haven't paid for it, you can't make more records. It has nothing to do with necessarily large or small budgets, it has to do with budgets that reflect an artist's ability to earn back the advance and still turn a profit for the label. If a band can't sell enough records to be entrusted with a budget because people aren't interested in their music, tough luck, that's capitalism. But if they can't sell enough records because people *are* interested in the music but choose to steal it instead of paying for it, that is a problem not with the business model, but with people who steal. It's easy to blame record companies, but only because they're easy to scapegoat. As big, bad and evil as "the record companies" - because of course, they're all the same - may be, they're not responsible for Timmy downloading the latest MTX record, Timmy is. Even if Timmy thinks the record is too expensive and Timmy really dislikes "the record companies" and Timmy wants musicians to record on computers and, I dunno, play for gas money at his birthday party. Really, the devil made me do it still isn't a valid excuse.

Anyway, I disgaree about the whole comments thing. One of the many reasons I don't have comments (aside from not having a clue how to add them) is to prevent bloggers out to make a name for themselves from doing so by arguing out of obstinance rather than conviction and then posting links to their deliberately obtuse ramblings.

Posted by: Ben at July 13, 2003 05:24 AM

Dr. Frank - I'm not saying recording won't cost anyone anything. I'm saying people will continue to do it for the same reason people participate in every other expensive hobby - because it's fun.

Lots of people play basketball, but only 0.0001% make any money at it. The same is already true (and always has been true) for music, and it will continue to be so. Only a tiny minority of musicians ever set foot in a studio, and only a tiny percentage of those make a living at it.

I'm not sure you and I disagree that much, and I'm sure there is a lot we agree about - but I reject the argument that music will disappear (or its quality will be diminished in the aggregate) when it's no longer profitable to sell CDs.

Musicians will make music for its own sake. Very, very few will make any money at it. I expect to see a premium on live performances, since those are necessarily "rival" products which cannot be distributed online. Merchandising, endorsements, online sale of songs (maybe $0.99 each - something reasonably related to the cost of production).

"Music" is not dying - only the business is changing. I don't mean to be flippant about your livelihood or anyone else's - and I admit my rhetoric on this issue is a bit over the top. I mean no disrespect. I love the discourse, and I'm glad we've got one going.

I'm pretty sure we don't know each other, so I'm surprised you've twice now made assumptions about my knowledge of the business. As far as I can tell, my experience in the business is less than yours, but more than you think.

Why don't we get down to brass tacks?

How much do you think it costs to produce a 12-song album with a 4-5 man band? I'll even give you live drums!

Posted by: Steve at July 13, 2003 05:37 AM

Lynn - you're absolutely right about Ani Difranco. Good point.

Ben - I think it's entirely possible that musical instruments used in contemporary music (drums, amps, mics, guitars) will not be used forever. Just as modern musicians do not play the sackbut, or the lute, or the pipe organ. Valved brass instruments came along hundreds of years ago and changed music. The electric guitar came along in the 20th century. Turntables came along. The computer came along. These things happen.

Posted by: Steve at July 13, 2003 05:47 AM


How many of the CDs you currently have in heavy rotation were produced by 15 year olds imitating Beck? Because that might be the root cause for your condition. ;-)

Posted by: spacetoast at July 13, 2003 06:03 AM

Spacetoast-- you slay me.

Steve, I'm sure you're quite a knowledgeable fellow, but I'm only going by what you wrote. Your first post leaves the impression that you believe that the only role of the Record Company in the production of recorded music is in the manufacture and sale of physical media. That's wrong. Your follow-up indicates that you believe that semi-professional home recording equipment means that studio time, engineers, producers, etc. are no longer needed to produce recordings. That's wrong also. Your general point seems to be that copyright law is invalid simply because the Recording Industry's lobbying group is in favor of enforcing copyright law, yet has no legitimate standing to weigh in on the issue (being middlemen.) Whether you like the RIAA (and who does?) that's wrong, too. Licensers have a legitimate interest in preserving the integrity and protecting the value of the property they license, no less than those from whom they have licensed the work. But even if we discount the arguments of "middlemen," it doesn't touch the copyright issue. Finally, you seem to think that because the big, bad RIAA's arguments in re copyrights are unpersuasive or offered without standing, it somehow follows that writers ought to forfeit the right to control their compositions, and that forfeiting this right will have no negative impact on the writers. That's wrong, and, forgive me, also sounds a little crazy. Everything has an impact, and trust me: when writers don't get paid, it makes it kind of difficult for them to continue to be writers. That's negative, my friend. Seems like you're fishing for a rationale for a conclusion you'd like to see borne out.

Your question ("how much do you think it costs to record a 12 song album with a 4-5 man band") isn't very meaningful. It depends on how it's recorded, where it's recorded, and above all how much time is spent. It can range from free (set up some mics in the garage) to millions. Some great rock albums have been recorded for a few thousand dollars; some great albums have been recorded for a few hundred. In general, though, I'd wager that most of the albums in your record collection would not have materialized without a considerable capital investment. (And even Beck needs to spend a bit of money to sound like Beck.)

In my world, a moderately-priced, decently-equipped studio costs around $500 - 600 a day, plus engineer, plus producer, plus tape/media. It adds up. The going rate for a relatively decent-sounding, no-frills punk rock album (a la Fat Wreck Chords) is, if I'm not mistaken, around $20,000. (That's strictly for recording, not mastering, marketing, manufacturing, heroin, hookers, or anything else.) You can do it for less, of course. (And I'd drool over a $20,000 budget myself.) Some do it for a lot less. Some have the luxury of being able to spend much, much more.

Posted by: Dr. Frank at July 13, 2003 02:49 PM

It occurs to me that my problem isn't really with copyright law... it's with the reluctance of the RIAA to embrace the new technology and adapt a new business model.

Even assuming I am right and someday recorded music will be "free" (more accurately, very cheap), that doesn't mean it's OK to steal the expensive recorded music that exists today.

My real complaint is that instead of dreaming up ways to sue customers and destroy their computers, the RIAA should have been working on an economically viable way of delivering music over the internet. I do understand that protecting copyrights is part of that...

I'm coming around. You (and your readers) are penetrating my thick libertarian skull. Let me cogitate on it some more and then I'll eat some crow on my blog. I write about a broad array of subjects, with real expertise only in a couple. I need the advice of experts - that's what the internet is for.

Posted by: Steve at July 13, 2003 04:46 PM

Dr. Frank-

I'm trying to associate that going-rate figure with a specific "tier" of band/label...is that a wrong way of thinking about it or...like, what's the deal with that? I'd certainly expect a greater variation in recording budgets at a label like Lookout than at a label like Fat Wreck Chords, but your drooling comment surprises me a little. Were, examples, Love is Dead or Revenge is Sweet really recorded for significantly less than 20k? I mean, I really don't know anything about this stuff, but that sounds almost humorously shitty to me.

Posted by: spacetoast at July 13, 2003 07:36 PM

Frank, I personally think you are being a bit naive here. Ok, yes the record label gives you money, and yes you pay that money to a studio, and yes you get a record that you then sell, and make money that you then pay off the record company and hopefully get to keep some of. Now, it seems to me you are focus is to narrow. It is on this whole money thing, and you never give a thought to an alternative. Being the forward thinking person I am, I am going to offer this suggestion. I will give you 4 cans of kidney beans for a copy of "Eight Little Songs". Since you are from northern California, I will even go the extra mile and make sure they are organic and low sodium. Then when you get enough cans of kidney beans, or whatever, you can trade them for studio time, and web space. Finally, you can release your next album online, and when people send you cans of kidney beans, or whatever, they can download the album. No record industry needed. That's right, me, you and the kidney beans are going to take down the Man.

Posted by: che at July 13, 2003 07:56 PM

As you say, Steve, your argument never really had anything to do with copyrights or copyright law. It was, rather, a misdirected expression of frustration with the positions and tactics of a particular lobbying group.

I agree that the RIAA often has the wrong approach, and is misguided in many ways. They don't represent me or Ben or our interests as independent recording artists. That doesn't mean that everything they say is wrong. More pointedly, it doesn't resolve or eliminate the real issues and problems they are attempting to address, as we've discovered in this discussion. And the problem of how (not whether) to embrace and utilize digital distribution in a way that is fair and viable is really not as easy to solve as a lot of people assume.

I've explained my views on this here and there on the blog when the subject has come up. To repeat: some method of digital distribution which pays the costs associated with producing recorded music *will* emerge. Operating at a loss won't work; subsidizing it with revenue from CD sales will only work as long as CDs make up enough of the market to offset the "free" stuff (and that's the model whose demise we're cheering on, remember?); and you can only get so far by attempting to balance this budget by demanding that bands use cheaper studios in order to make up the difference.

The costs will be paid, and will be passed on to the consumer. It will probably be contrived so that it "feels" free, or mostly free. But, of course, when it comes to a good that costs something to produce, "free" doesn't really mean "free." It means "with costs disguised." Like TV, which is paid for by means of advertising along with fees for services or "distribution" channels like cable or satellite. When it comes to financing recordings, this won't eliminate the "middle man;" rather, it will add a whole gaggle of new middlemen (e.g., advertising men and the service providers who love them) to the A&R process. I'm pretty sure this will make it more rather than less difficult for offbeat, quirky, independent, unproven, unconventional, or unfamiliar types of artists to gain access to the capital-providers. Just as it is with radio. (You're saying, I think, that technology alone has eliminated, or will soon eliminate, the need for large amounts of capital to fund recordings-- I remain dubious about this. Certain aspects of the recording process *are* cheaper these days, but the main cost is, and will always be, time. Pro-tools is great and speeds up certain things. But is it a net time-saver? Usually not, I'd wager.)

While the LP/CD method of getting recordings to the public may be flawed (and will never be what it was before there was any competition) it did have the salient benefit of tying the dollars spent to the specific product (song/album/recording) purchased. If digital distribution follows the radio model (which seems likely) and songs are merely conceived as a generic part of the "programming" you get when you subscribe to a certain service and listen to their advertisers, the remuneration for songs will be indirect. Anyone who has ever seen a BMI or ASCAP statement of broadcast royalties knows that the number of "performances" listed isn't literally accurate. It's a statistical extrapolation based on a sample of broadcast logs. That is, you don't get paid for the song. If you get paid at all, it's for a share of the use of Music (the aggregate of which your song is a part) in selling something else; and the song's value to you is determined by its usefulness to those who are selling this other stuff. If they use it a lot, it turns up in a lot of the logs and you get a bigger share of the revenue. (And to get to this level, you generally need to be able to spend a huge amount of promotional money, far beyond the means of even moderately successful artists; there have been exceptions, spontaneous "hits" that happen accidentally, but they're rare. Increasingly rare.) But below a certain level of broadcast "success," this money is pretty much random; nice to get, but unconnected to the value or use of your individual songs by any real measure.

I've been criticized when I've called this "market distortion" in the past, and I suppose that's valid; it's just replacing the retail market with another, an advertiser's/programmer's market. However, in the past and currently, it has been possible for a little band like mine to ignore the radio end of things pretty much completely and build a small-scale recording career based on the fact that we (or our little label) could sell at least enough records to cover what it cost to produce them. The retail sales model of the big players could be scaled down and used by a kind of cottage industry that could sustain itself. Will the digital distribution model we're talking about be downward scalable like this? Not if it follows the pattern of radio or any other advertising-driven commercial model.

Here's where you send me the "poor baby stop whining and get a real job and play music for fun" emails. OK, send 'em in. I can take it. I don't have the solution to this problem. But I'm certain that trashing the right of songwriters to control their own work does not address it, and is not in any way fair or smart.

Posted by: Dr. Frank at July 13, 2003 08:14 PM

Hey now - in fairness, I never sent you a "poor baby" email and I never will. Since the rest of your post seemed to be directed to me, I think we should clarify that last line was not.

I agree at least 95% with what you've just said - possibly 100% but I'll have to read it a few times to know for sure. At the end of the day, I'm calling for a new business model. Here's an important distinction: while some say music should be "free" as a philosophical matter, I say music is becoming "very cheap" due to economic pressures resulting from technology. Of course it's all in a state of flux, but even if you're not impressed with the recording capability of my Macintosh G4, you may very well be impressed with the Macintosh G14 that comes out in ten years.

If it's the RIAA holding back the development of the new model, then the RIAA is an ass. If it's the law, then the law is an ass. Neither one of us has articulated a vision for this model.

You say it's important for creative people to be able to reap the rewards of their creation, which I agree with. I say technology is making music very cheap, which you appear to agree with to at least some extent. How's it going to happen?

My personal favorite theory is that in the future, musicians will make most of their money from live performances and merchandise. The recordings will act essentially as marketing for the shows. See, e.g., Phish and most of the jam band scene. What do you think?

Posted by: Steve at July 13, 2003 09:06 PM


I think Frank just spent quite a bit of time disagreeing with you that producing recorded music is, or is likely to become, "very cheap." Moreover, Frank has marshaled quite a bit of evidence in support of his position. You have only hypothesized a rosy future where the yet to be invented Mac G14 somehow solves the problem of your upstairs neighbors complaining about the fact that your are recording live drums in your living room at 3 a.m.

As for your alternate business models argument, the problem (as Frank has also expressed in this thread and elsewhere) is that reorienting the music biz's profit center away from recordings and towards other revenue streams (e.g., merch or live performances or, more likely, advertising) is likely to reward bands that are good at those things as opposed to bands that are good at making records. It is already the case that bands that make good advertising spokesmodels get a disproportionate share of the world's resources compared to bands that merely write and record good music. Anything that increases this tendency is, all else being equal, a bad thing. Finally, any argument that depends on holding up Phish as an example of a bright, new future is seriously flawed in my opinion.

That said, I agree with you that the “industry” has been very slow in realizing the potential of the new technology and looking for ways to take advantage of it. The entertainment industry's reaction to new technology always seems to be shoot first and ask questions later. You'd think the battles over the VCR would have taught them something -- new and cheap ways of distributing product are good, and are likely to make money in the long run. I'm pretty confident it will all get figured out in the reasonably near future, and I doubt that it will require any major reworking of the copyright laws.

Posted by: Aaron at July 13, 2003 09:37 PM

OK, all right, y'all are making some excellent points.

I acknowledge it here:


Thanks for an invigorating conversation. I hold this blog and its readers in the highest possible regard. I still disagree with some of you about some things - but I sincerely appreciate your passion and your smarts. Those of you who emailed me were gracious and open-minded, and I am grateful for that.

Posted by: Steve at July 13, 2003 11:01 PM


I think the maxim "you get what you pay for" generally holds with most things, recorded music being one of them.

While technology increases in sophistication and decreases in relative price, it also requires a greater production skillset than before. You're asking musicians and songwriters to not only master their instruments and songcraft, but also production techniques: in effect to become engineers and producers. What this does, in effect, it to exclude from the talent pool all those unable (or unwilling) to wear all the hats required.

Also, the advancement of technology is not the end-all/be-all solution for the issue of quality music production.

The G4 is fine for making great music - IF you know what you're doing, IF you have free access to appropriate space, IF you have a selection of great mikes, IF you have a mixer, and most importantly, IF you have the temperament to lead and manage a recording session (what may be the biggest 'if' -- hanging around musicians clues you in to this aspect very quickly :) I sincerely doubt G14 is going to provide those things for you. It may let you have the ability to record and process nearly infinite tracks, in nearly infinite ways, but all that guarantees is the potential for infinite permutations of crap.

Basically, you're cutting excellence out of the equation. Technology democratizes, but it also mediocratizes (how's that for a neologism?)

Posted by: JB at July 14, 2003 07:16 AM

Steve, I mentioned the "poor baby" letters because I always get a few every time I write anything about the music biz.

But here's my question to you (and I ask with no ill will or any intention of goading you but rather out of genuine, gentle curiosity): why is it that so many people who discuss this matter seem to be so keen on the idea that musicians make their money and fund their operations solely from shows, T-shirts, souvenir items, pogs, etc. rather than from records? This is mentioned all time: it seems like recordings, for some, are the only music-related thing they feel they shouldn't have to pay for, which is strange because they're the most costly music-related thing. Isn't it kind of logical to imagine that recordings ought to be paid for by revenue from sales of recordings, and a bit less logical (kind of off the wall, really) to recommend that they be financed from the sale of other items, e.g. hoodies, back end points from a Slim's show, etc.? Shouldn't it be like, the hoodies pay for the hoodies, the pogs pay for the pogs, the CDs pay for the CDs?

And why does it seem so satisfying to certain music fans to dream of a future world where albums are not works of art in themselves, but rather mere commercials for the live show w/concession stand, which is the main attraction? Why the eagerness to usher in and celebrate the end of the era of the recording artist? Or is it just a "jam band" kind of thing?

Posted by: Dr. Frank at July 14, 2003 07:21 AM


The problem with the "People's Sponsorship" model you suggest is one of entry. Sure, you might be able to get enough people who want to hear another album by a cool underground icon like Dr. Frank/MTX. But how do you get the next Dr. Frank? You're suggesting the audience find the artist before the artist finds the audience. Frankly, I don't think the audience is so motivated as to do ALL of these things in sequence: go out and find a jewel out of the heaps of trashola on mp3.com, let's say, lay out cash for an album that they might not even get for months or years, and then get a product they might not even like! The irony here is, you accuse Frank of being naive, yet this process requires a rather blind faith in humanity. What happens when fans lay out cash for product they don't like, and sour on the process once and for all? What happens when the inevitable first "I spent donor money on drugs and hookers" scandal hits?

This may work in individual cases, but it's unlikely to work as a sustainable model for the music industry. It requires a maintenance of faith in the abstract notion that, even though I have donated money, and I don't really like the result, I will keep doing so because I believe sticking it to Da Man is so important. (And I'll preempt any comparisons with Linux, e.g. by pointing out the inherent immediate gratification programmers have in working on code, and the substantive difference between spending time doing what you're like and opening your pocketbook.)

I could be wrong, but I don't see this working realistically.

Posted by: JB at July 14, 2003 08:01 AM

Frank, I think I can answer the question, "[W]hy is it that so many people who discuss this matter seem to be so keen on the idea that musicians make their money and fund their operations solely from shows, T-shirts, souvenir items, pogs, etc. rather than from records?"

It's because we've all seen too many Behind the Music episodes, or read too many rock/jazz/blues/punk histories, or (worse yet) have seen our friends get signed to big-ass labels and only make money from t-shirts ... even when they sell a respectable (to me) number of records.

Obviously I'm not speaking for everyone, but I think it's safe to say most people who are passionate about music no longer believe laying down $17 at Tower significantly helps the band/artist's checkbook. (That's why I tend to buy CDs from the merch table when I'm at a show.) Those of us who spend too much time on the Internet know a CD costs about a buck to produce in bulk (1,000+), and that if we buy it off the band's web site the band will see about 10x the money than if we bought it through the old channels. (And the role publishing royalties play in many artists' lives just isn't appreciated by people who think music should be magical and free.)

This isn't an original thought, but those selling music should really try to make records a visual/physical art form again. (And, hopefully, the bands will get a much bigger chunk of the cake by selling directly off their web sites.) When I was a kid, I would record all the songs I liked off the radio, onto my Sears tape recorder. And when I had enough money from the paper route, I'd go buy the album and it would be like Jesus came to my house. It was big. It had foldout art. It was a weird mystery. Even when I was in high school I remember buying the Rolling Stones' Emotional Rescue and being floored by the packaging. A six-foot-tall poster! Weirdo x-ray photos! I put that sucker on my bedroom door, where it would be scary. (Around that time, Congress was considering a ban on cassette recorders.)

People -- even teen-agers! -- haven't quit wanting some fine stuff. For the indie artist, make it personal and fun, as you've done for Eight Little Songs. For the huge-o artist, make it fancy. Hell, it only costs an extra dollar per copy to make some big-ass glossy 4-color folder with a poster and a sticker and such stuff. Bootlegging has always been an issue with everything from records to fashion, but having the authentic product is still worth some cool points, based on all the kids I see flashing their designer labels.

Also, people seems to have a lot more morals about music when they care about the music ... when the music is good. Wilco gave away its last record (and, more recently, its last EP) off the web site. And when Yankee Hotel Foxtrot was released, it quickly became the best-selling Wilco record of all time. People wanted the physical thing, proof of their love for the music. Same when Eminem's last one got pirated on the Web. It sold like crazy. Kids wanted that artifact.

Make records more fun as a package -- or at least as fun as they used to be -- and people will buy them and be happy about it. Let people know the band will actually see some of that money, and they'll be much happier about it. The USA is supposed to be the country where everybody buys things they don't even want. The music-industry crisis isn't really about file sharing. It's about people who don't know how to sell music.

(That copyright thing has nothing to do with this, far as I can tell. I don't see any other industry where people are demanding the content be provided for free ... well, maybe Internet journalism. I mean, where are authors going to make their money if the books are free? With a tip jar at the book signings?)

Posted by: Ken Layne at July 14, 2003 08:45 AM


I'm not sure I'm as optimistic as your assessment. Some artists ARE doing interesting things with "extras" (although in a non-traditional way -- e.g. included DVDs of behind-the-scenes/studio happenings/music videos, special access to free downloadable content, etc.) Perhaps more will follow suit, and even more creatively. But, realistically, though, a certain segment of the populace, especially teens, has simply come to view recorded music as an entitlement, and are unwilling to change their thinking on the subject.

Posted by: JB at July 14, 2003 09:23 AM

Dr. Frank - the reason I mentioned shows and T-shirts is because I figure those things will still be profitable in 10 years, whereas the prospect for records is more dicey. In other words, I'm not saying band should make money on those items because it's a good thing for the world - I'm saying bands WILL make money on those items because it will be possible to do so. Regardless of how you feel about jam bands musically, they seem to be on the leading edge of revamping the business model - permitting tapers at shows, extensive merchandising/branding (not just T-shirts), free online downloads, festival shows, etc.

I am intrigued by Ken Layne's suggestion about adding value to the CD with artwork - making them "artifacts." It makes sense to me - essentially making the packaging of the CD a rival good. On the other hand, soon it won't be necessary to have a physical object (such as a CD) to play music - maybe if you download the songs online (for a fee) you could get a T-shirt in the mail?

Bands are getting creative - something will click.

Posted by: Steve at July 14, 2003 03:14 PM

Ken, you've got the right idea about the advisability of figuring out new, creative ways to make purchasing seem attractive. That Wilco thing is impressive, of course. But would it work if every band did that?

I'm looking at it from the standpoint of a guy who is trying to figure out a way to record Pet Sounds on a gas money budget. I've got budgets on the brain right now, which might be a little perspective-inhibiting.

You know, though, the common trope that the band "doesn't see a dime" when you buy a CD at list price isn't really true. (I know you know it, Ken, but a lot of people don't.) Well, it's true that sometimes the band is in debt from a non-recouped recording advance (there I go again) and the money goes to the debt rather than their bank accounts. Quite often this debt includes other advances on top of the recording advance, like if you talk your label into fronting the money for a van, or something like that. Sometimes these budgets are unnecessarily bloated and padded in the major label world, of course. Even in the indie world, though, it is quite often the case that the record sales don't cover the advance and the band never has a positive balance on their statements. (Because, by default or design, we never spend very much, my band actually stands a chance of getting royalties even on modestly-selling albums-- some of my friends who have put out records in other genres of rock music express astonishment that my label even bothers to send out royalty statements.)

Under the typical deal, the band gets a percentage of the list price, and the writers get mechanicals for the songs.) Give or take, it means a couple of bucks per unit. If you buy one of my records at a store, essentially, my band's debt gets reduced by a couple of bucks. If you buy one from me personally, I get a ten dollar bill. But part of this debt that I'm paying off is from my having purchased the CD I just sold you (wholesale to bands is around $6-7 in my case) so in my overall budgetary world, the gain from that is an extra dollar. The fact that I then turn around and spend the ten bucks on beer rather than pay off my debts is a sad, unavoidable fact of my sad unavoidable life. Of course it's cheaper to you, and better for me, and/or worse for my health, perhaps, to buy directly. I don't know why CDs are so expensive in stores, but it has nothing to do with how much or little the band gets paid. That remains the same.

Like I said, I've got budgets on the brain these days. If I'm going to spend $20,000 recording Love is Dead II, somewhere in the process somebody has to buy $20,000 worth of Love is Dead II. (Speaking of which, Spacetoast, the budget for Love is Dead was 10K, though we went a bit over. Revenge was higher. But we've never had a 20K budget.)

Anyway, as a fan and as an "artist" I see an album as an artistic statement in and of itself. I like it that way. You know: the Village Green Preservation Society LP comes out and you buy it because you want to hear what a genius and a great rock and roll band have come up with in the studio, not to get a taste of what it's gonna be like when you go to see the Kinks play. (I never saw the Kinks back then, but I'd bet they didn't sound anything like that, in fact.)

Like I said, I like it that way. But a lot of people really don't seem to see the charm in it. Essentially, there seems to be a current among certain music fans to reject the whole concept of the Recording Artist. Is it only economics? Or something else, too. I don't quite get it.

Posted by: Dr. Frank at July 14, 2003 03:36 PM

Some great stuff here, especially JB's posts on recording artists as engineer/producers and teens viewing music as an entitlement (it really seems to be true - there's an entire generation of people who think paying for music is for suckers). JB takes the words right out of my mouth. Ken's comments on how to liven up record sales are also interesting.

One of the problems with creating more "extras" to go on CDs is that now you're talking about pouring even more money into a product that already has lowered sales expectations. The cost will vary depending on what exactly you choose to do, but if you don't pass the cost off to the consumer, you eat it. It's not something I'm willing to do right now.

This idea brings up another angle about lowered consumer interest in buying CDs. Ken mentions buying "Emotional Rescue" and finding a 6-foot poster inside. Alice Cooper's "School's Out" album came with a pair of panties stuffed inside. "Billion Dollar Babies" album came with a cool poster shaped like an oversized "billion dollar" bill, featuring a photo of the band in the center. "Muscle Of Love" was packaged in a plain cardboard box with pink lettering reading something to the effect of "This box contains 1 (one) Alice Cooper Muscle Of Love." Mysterious, disturbing stains were at the bottom of the box. How about Kiss with a cheesy posterboard "Love Gun" in the album of the same name, or free tattoos included in "Kiss Alive 2"? Or Motorhead's "No Remorse" coming packaged in real leather?

Here's the problem - these things were done (all by major record companies, by the way) before the CD choked the LP out of the market. Most of the things I mentioned above can't be done with CDs (try stuffing a 6 foot poster inside one) and the ones that can won't because of added cost. For instance, if you want to do an unusual packing scheme a la Coop or Lemmy, even if you're willing to eat the production cost, you now have the added cost of extra shipping weight - there's no way not to pass this cost on to the consumer unless you self-distribute and decide it's okay to lose money. Sadly, these are ideas that only a small percentage of people will get excited about which, along with the demise of the LP, is why nobody does it anymore. There's a reason why special edition/boxed set DVDs that come in unusual packaging and have lots of extras are available only in limited editions - only a limited number of people want them.

As cool as I think A. Cooper was, it shows my age that I'm still impresssed by all the marketing antics (and really, that's all that stuff was). Kids today would barely even notice stuff like that. A world with high-speed Internet access and digital cable has contributed greatly to the jaded, bored attitudes of teenagers and young adults. It's as if everybody moved to Vegas and got used to the flashing lights overnight, and everybody sleeps just fine now (again, my age shows). I don't know if there's anything that will impress anymore. Am I the only one who has noticed that kids don't talk about songs anymore? Go to any band's web site with a message board and you'll see kids talking about the band members themselves, and how great an album is (though they never give a reason why) or why it sucks (again, with no reasons), but it's rare indeed to find someone discussing a song at all, let alone somewhat intelligently.

I guess that's my long way of saying that no amount of bells and whistles are going to make a noticeable difference. The only ones who will be really impressed and inclined to spend the extra dough are old guys like me and Ken Layne who still think stuff like 6-foot posters are really cool. The whole concept of album art has changed dramatically (and, as should be obvious now, for the worse) because the move from LP to CD gave artists such little room to work with. I have yet to see an outstanding CD cover - one that really stood out and made me take a second look. I mean, never - in the history of CDs. The format doesn't lend itself to integration with the album because it is far too limiting for the artist.

Posted by: Ben at July 14, 2003 04:13 PM

As to why so many people seem to want a world in which recorded music is secondary (or thirdary or fourthary) to live gigs and merch, I have my own theory which I've been complaining about for six or seven years now.

The short version: Internet, cable, and reality TV have all contibuted to spreading the disease of want-it-nowism. I really believe that we've finally reached a point where people want what they want and they want it yesterday that and that due to this, there is a large segment of the population of rock and roll fans who don't have the attention span to sit through a 30-35 minute album.

A show is much more appealing to the attention-deficit crowd because when you tire of watching the band after thirty seconds, you can watch somebody in the crowd, or go buy a soda or a beer, or leaf through merch, or hang out in the bathroom with your pals and talk about the girl with the nice rack standing to the side of the stage. Lest I sound too curmudgeonly , I do realize that gigs are social events, not performances to which we should all be giving our rapt attention at all times (though I usually do on those rare occasions when I go to see live music). But I think that some of the things that have traditionally been considered the least important aspect of a band (to name a few, merch, promo tools such as videos, and perhaps most obnoxiously, corny hokey stage moves as opposed to actual genuine stage presence - personally I'm far more impressed by somebody who can stand still and command my attention than I am by dorks who wear baggy shorts and jump up and down in a manner that suggests a lot of previous practice in a mirror) have taken on enormous importance in the minds of many fans. On top of that, there's the whole relationship aspect that can so easily turn weird (the fans need to see you in person, and preferably speak to you and touch you - though "knowing" that something you said on stage or a song you played was specifically just for them may suffice as well - or they haven't consummated the relationship), and, again, the sad reality that for many people in an infotainment, instant-access-to-anything culture, records simply aren't "real" enough. Of course, it should go without saying that along with this has come an utter lack of respect for actual songs - even when a fan loves a tune, it's often ultimately disposable. This is less true of the hardcore fan who forms the weird one-sided relationship (as opposed to the ethereal but definitely existent relationship between fan and artist that stays on the healthy side of the fence). But for those in favor of "free music" - art is a concept which is either to be taken for granted or sneered at. Really, for many of these people, a song is not much different from a can of Pespi.

My apologies for past, present and future missepllings, typos, grammatical errors, etc.

Posted by: Ben at July 14, 2003 04:49 PM

My objection to copyrights has to do with the duration and with their recent extention under the Sonny Bono Act to lifetime plus 70 years.

I wanted to quote some Gershwin lyrics in something I was writing. I wrote to Warner Music, requesting permission. They told me to go screw. They didn't even ask for a ridiculous amount of money.

We're talking about a tune written in the 1930's. But Ira Gershwin died in 1983, so I gather the lyrics will be copyright until 2053.

There ought to be a resonable compromise, between no copyright and 120 years of protection.

Posted by: Rick Heller at July 14, 2003 05:13 PM

Sorry Ben, but the above did sound remarkably curmudgeonly. Perhaps DSL has made The Kids (tm) sensation-addled, jaded anti-fans, but I'm just not sure that it's such a new phenomenon.
I mean, around the time I was born, the kids were into much more personality/experience/image fueled music. I agree with you that people who command your attention without doing anything are preferable to choreographed leaping in baggy shorts. But then, what do we do with Kiss, or Alice Cooper, or Ziggy Stardust-era Bowie? Did kids back then need the oversized personalities, the comic-book images, the spectacle of pyrotechnics and $400 hair to capture their attention? If so, then the baggy-shorts brigade heralds some sort of improvement.
But more to the point, if kids today wouldn't even notice Alice Cooper's antics (marketing or stage), then why on earth would they notice baggy trousers? What possible difference would it make?

To get into the anachronistic spirit myself, I don't believe the LPs end is nigh. There will be twists and turns in the piracy saga, and there will be some surprise ending that pisses everyone off a little, but that's acceptable at the end of the day. And kids will still buy records. The business model of 10 years ago suffered a shock when Napster went on-line, but it's survived it - Kazaa is small potatoes in comparison. I think we're all giving file sharing way too much credit: there is no new paradigm. Stealing records will not replace buying CDs. Hoodies, stickers, or a percentage of the bar at shows will not replace buying CDs.

Ben: one more thing. Dump Podsednik on your roster now (his trade value is at its apex - trust me), and whatever you do, keep Rafael Soriano. That was an amazing pick-up in a keeper league.

Posted by: Marc W at July 14, 2003 05:49 PM

JB -

The kidney bean for music post was a joke. I in no way intended that to be some kind of solution for the way people find, get or make music.

Posted by: che at July 14, 2003 06:50 PM

Dr. Frank-

I don't understand your first group of questions to Steve. On the album-as-marketing paradigm, it is indeed the case that "marketing costs" substantially exceed "production costs," but so what? That's true of many products...certain types of food, clothing, toys, stand out as salient examples. Barring some kind of value judgment about what kinds of things consumers should want and how much they should want them, there's no special reason consumers should pay specifically for the thing that costs the most on the other end. The issue is entirely that in this case consumers demand the nominal marketing as a good per se--that is, with strong independence from their demand for the nominal product--but there's no logical reason CDs should pay for CDs or stickers should pay for stickers...that sounds suspiciously like a "punk-o-nomics" folkism to me.

As for your second group of questions, I see at least three types of answer, although two are closely related:

(1) The album-as-marketing paradigm isn't actually desired. It's merely a sunny forecast contrived in an ad hoc fashion to disguise or rationalize the palpably undesirable consequences of mass theft (Aaron, don't start...).

(2) Phish is god...dude.

(3) What Ben said. Consumer preferences have changed, and continue to change, such that pop music is becoming less a thing "shopped for" and more a thing "shopped to." This is related to "Phish is god" for obvious reasons. There's an interesting discussion of this phenomenon in a Wired profile of Moby from either 2001 or 2002--that's where I'm taking the quoted phrases from. I can't name the issue because my gf recently took it upon herself to recycle vast swathes of my magazine collection, but it's from either 2001 or 2002 and the cover features Moby painted white or gray or something. I'm sure it's archived online though...Anyway, I think there's some truth to this, but I'm not at all convinced this trend is mainly a supplanting one as opposed to a supplementing one (with respect to other preferences).

Posted by: spacetoast at July 14, 2003 09:03 PM

Of course, once you bring up Moby, you have to mention the alternate paradigm where indie musicians make most of their money from advertising. Fifteen years ago, this would have been considered blasphemy. Now, because of Moby, it's considered perfectly acceptable and even desireable. I heard Gary Louris of the Jayhawks make this exact point a few days ago on NPR's Fresh Air.

Posted by: Greg at July 14, 2003 10:04 PM


I'm amazed that you recorded Love is Dead for 10k. I think it's my favorite sounding of your records because listening to it I don't notice production stuff at all, which really works for me as a listener...in terms of what you do. I think they're all amazing albums, of course...

Posted by: spacetoat at July 14, 2003 10:09 PM

Well, Spacetoast, I think you know I wasn't talking in terms of "punk-o-nomics folkism." I wasn't being very clear, though, I admit. I think I expressed the concern/source of puzzlement better in the follow-up post where I asked why so many people seem to think songs/recordings are over-valued as against other products related to music and music culture. I do think, though, that it's, at least, counterintuitive to imagine that the costs of producing one item are best factored into the price of another simply to accommodate a consumer preference to pay less, or nothing, for item (a). I know it happens all the time: the cell phone is "free", the cost factored into the service, that sort of thing. Hmm, it's kind of like: let's say someone proposed that Barnes and Noble give away books for free, and make up for the losses by selling expensive bookshelves; or Ikea gives away their bookshelves for free and covers the cost by selling mass market paperbacks. When it seems to make more sense to have the costs of the shelves determine the price of the shelves, and the cost of the books determine the price of the books. I'm sure you can poke holes in the analogy (and I greatly enjoy when you brandish your hole-poking skills, so have at) but I don't mean it to be perfect. However, just to go with it anyway: the cynical part of me (that would be, around 98%) suspects that an anonymous commenter may have a point that, in effect, many of those who like this sort of idea simply want the free books and figure they can get along just fine without the shelves. And, to stretch the analogy far beyond even its own dubious limits, when someone objects that giving away books for free might have a negative impact on the quality of books in the future, the response would be: people are going to keep writing books whether or not they can make a profit at it, but there are bright possibilities for these folks in the burgeoning discount furniture industry.

Posted by: Dr. Frank at July 14, 2003 10:30 PM

Oh, and btw, Mr. Toast, thank you very much indeed for the compliment about Love is Dead.

Posted by: Dr. Frank at July 14, 2003 10:37 PM

One more quibble -"but there's no logical reason CDs should pay for CDs or stickers should pay for stickers...that sounds suspiciously like a 'punk-o-nomics' folkism to me."
Kind of, but blurring that distinction (ie. records paying for themselves) *requires* a new distribution model: relentless touring. For some groups, that's cool. Others may not want to - they'd like to be able to recoup their advance without depending on the notoriously volatile sticker market. I definitely take your point about making value judgments concerning what pays for what, and you're right that marketing costs dwarfing production costs doesn't illustrate some shady dealings. But I think it's logical for a band who puts out records (and gets advances) to want to cover their costs on the sales of those records.
Oh, and I know you didn't start it, but let's all agree to embargo Phish references. Just say no.
Nothing is 'related to "Phish is god,' except self-injurious behavior.

Also, the notion that pop music is now something that's 'shopped to' instead of a good in itself sounds suspiciously like one of the punk nostrums you chided Frank for. People buy bad records by the warehouse full, just as they always have. Some do so to fit in, some because it's a necessary lifestyle advertisement/enhancement, but that's no different to 20,30 years ago when people bought records to highlight their eastern spirituality or their desire to shock mom, or illustrate just how much she didn't understand you. Music's always been, for frighteningly many people, a lifestyle accessory and not an end in itself. I don't know how you'd prove that there's been an increase, because when you get to a certain age, you just lie about why you bought the things you bought as a teenager.

Posted by: Marc W at July 14, 2003 10:43 PM


I realized as much. ;)

Actually, Ben expanded on the idea of instaculture that I alluded to in my post as a reason why the sponsorship model is unlikely to work.

On the other hand, beer and takeout for music...;-)

Posted by: JB at July 15, 2003 04:05 AM

The Ultimate Guide to Punk-o-nomics...Chapter 1: How to live on dumpster-dived medical waste the Cometbus way...


No, I was talking *exclusively* about "punk accounting." What I meant was: A pays for A, B pays for B, and so on, is a decent diy rule of thumb, but there's nothing inherently special about it as an operating scheme.

Dr. Frank-

I don't know what to make of your analogies. I won't attempt to start poking around until I feel I understand them better. I do conclude that Ikea and Barnes and Noble would go out of business if they did those things, but, at first blush, I don't get from that an economic fundamental about things paying for themselves.

"I do think, though, that it's, at least, counterintuitive to imagine that the costs of producing one item are best factored into the price of another simply to accommodate a consumer preference to pay less, or nothing, for item (a)."

If you're saying devising alternative profit schemes to accommodate infringement isn't a proper responsibility of copyright holders, then I agree with you. Otherwise, I don't know what you're talking about.


Here's what I'm saying: Let's say you make 50 t-shirts at a cost of $1 per t-shirt and you sell them, all of them, for $.50. So you're $25 in the hole and the t-shirts have not paid for the t-shirts. But maybe a few people see the t-shirts, buy a few records or something, and your net profit is greater than it would've been otherwise, in virtue of your going in the red on the t-shirt account. Same could apply to stickers or whatever. Obviously this is a contrived example, but you see the point I'm making...There's no logical reason CD sales should pay for producing albums, just like there's no logical reason t-shirt sales should pay for producing t-shirts, although there are doubtless many other reasons (for the former)...as I've argued. It's that simple.

Also, I don't think the "shopping to" trend is very controversial, though I'll acknowledge that I personally can't support it very well. Anyway, I'm skeptical as to its meaning and I was really offering it as a kind of response, rather than my own.

"...when people bought records to highlight their eastern spirituality..."

eh? Did Ram Dass put out an album I don't know about?

Posted by: spacetoast at July 15, 2003 09:51 AM

Spacetoast, my feeling (and a minor theme here) is that indirect funding of such a (for me) important element of music (the recording of a well-written song) does and will make it more difficult for people like me to participate. There's no logical reason for CDs, rather than hoodies, to pay for the costs of producing CDs? Perhaps not. But if you were really to factor the costs of recording an album into the price of your hoodies, the hoodie market would dry up pretty quick, too. Either that, or you'd have to assume you're gonna sell a hell of a lot of hoodies at a small profit. (And Marc, I realize that difficult does not equal impossible, that it's never easy, never been easy, and people will find a way no matter how hard it is. I just don't like the idea of it being any harder, is all I'm saying.)

As a matter of practicality and economics, I believe I'm right about this: in order to profit from the "branding now, profiting later" idea (i.e., I market myself as myself, give away or sell things at a loss, in exchange for publicity and exposure to large numbers of people who will then buy other things associated with me); and in order to profit enough from this method that you'll end up having an extra $20,000 lying around, and time to write and record the songs; in order for that to work, you've got to succeed on a huge, huge scale. Some of us don't have much of a prayer of doing that, even if we are "good." I really think that's true.

However, my main point, the main theme of these posts, isn't actually strictly economic. Here it is, as plain as I can put it. One thing I have noticed, in all the talk everywhere about the economics of sound recordings these days, is a glaring omission: production costs. It's not the only factor, but it's a pretty important one, and one I know a bit about. So you say to the person who has just adduced a detailed accounting of "where the money goes" when you purchase a CD, "dude, you've left out a really big part." Of course then he says "oops, gee, I never thought of that-- I suppose the price of a recording does need to reflect more than just the cost of the raw materials." I'm kidding. They don't tend to say that. They tend to say things like: but can't you just take it out of the T-Shirt money? or why do you have to spend so much on the recording? or maybe you should focus on the live show instead or can't you just make music for fun? or you're a bright boy, I know you'll find a way or you tell your industry boys to stop putting out crap and maybe I'll consider paying something. Etc. I know you know what I'm talking about. I think this is pretty weird, and I think I'm right about that, too.

My tentative conclusion: the sense of entitlement to free music is such a deeply-embedded matter of faith to a certain sort of person that they simply can't bring themselves to process a plain, undeniable datum like "records cost money to produce." Bring it up, and they will go on talking as if you hadn't said anything at all or as though you had said something else. Or they'll go on about alternate business models, which are interesting, and may work pretty well for, say, Cingular Wireless, but aren't necessarily useful for the band that has 10,000 fans but still wants to be able to record an album in a real studio, or for the person who might like to hear that album. They may be talking about the glory of a great gig where everyone is jamming all tight in on it, or the tremendous potential of the casual wear market, but it's hard to escape the conclusion that what it really boils down to is, they want the records to be free, whatever it takes. And of course they're never going to be free.

Posted by: Dr. Frank at July 15, 2003 03:46 PM

We're obviously talking past each other. To the extent I am responsible for that due to my overheated rhetoric, I regret it.

For whatever it might be worth, I've never in my life downloaded free music on the internet - except last night when I listened to the two songs on this web site. I've downloaded some songs from the Apple Store, but I paid for those.

Everything I've written is based on what I think is happening - not what I "want" to happen, not what I think I'm "entitled" to. I'm just drawing what I consider to be rational conclusions from the empirical facts. I understand this offends certain vested interests, certain traditions, certain nostalgia. If being more sensitive to people's feelings and tastes would have helped me articulate my points more clearly, I wish I had done it. I think being accused of stealing, not being a music fan, and being an idiot may have clouded my judgment.

Believe it or not, the suggestions regarding alternate business models were intended as hopeful, helpful suggestions. Kinda like, "Hey, don't despair! Internet file sharing will not be the death of music. It's going to be OK!"

It's apparent, however, that the primary concern here is not for "music" generally, but for certain TYPES of music packaged and sold in certain types of ways. As to that, well, you can't force people to buy products they do not want.

I sincerely believe that internet file sharing is the best thing that ever happened for bands with 10,000 fans. I hope some of you folks will at least consider the possibility that good faith disagreement on this issue is possible.

Enjoyed the discussion.

Posted by: Steve at July 15, 2003 04:45 PM

"eh? Did Ram Dass put out an album I don't know about?" - no, I was going for Ravi Shankar here.

Again, I'm not trying to argue that A must pay for A and B for B is some law of economics; clearly it's not. But it seems incontrovertible that shifting cost recovery from records on to the merch table simply will not work. We don't need to extrapolate from this; it's just a fact. Why? Because it requires touring 365 days per year, remarkable sales at the merch table and adding extra costs on some of the more price-sensitive items in an indie rock band's bag of tricks. If you're selling your CD at a loss of, oh, 3 bucks, you're not going to make it up by charging people 5 bucks for stickers. Or 15-20 for shirts, etc. Maybe you're going for a general point here (an econ 101 lesson for the comments board), or do you believe Frank could conceivably cover recording losses with merch?

As for this nebulous 'Shopping to' trend, perhaps I just balk at the subtext of the idea (and many others proferred here): kids these days just don't get it. 'In my day, we sat in rapt attention until the LP hit the run-out groove. Today it's all just mountain dew ads and snippets in movie trailers.' It's probably true, but I'd just like to point out then when we were kids we didn't get it either.

Posted by: Marc W at July 15, 2003 05:16 PM

Now Steve, I don't mean to pick on ya on lump you in with anybody. If my comments sounded Steve-o-centric, I apologize: they really weren't meant that way, but rather as a general discussion of of the discussion. I think these issues are interesting per se, and as a guy who has basically managed to scratch out a bare (admittedly extremely bare) living by making and selling records, I think I have something to contribute to it.

The thing is, for me, file sharing itself isn't really such a big deal. I'm not against it. It's a great technology that solves some problems and causes some problems, can work to everyones benefit or be abused, like anything else. It's cool. My concern is the general trend towards wresting control, trying to wrest control, arguing for the desirability of wresting control of artistic works from the artists who created them. I don't think I ever said the internet would be the death of music. The internet has been great for me as a musician. However, I don't think that those who discern, on the part of some in the debate, a sense of entitlement (and in my view, an unrealistic expectation) are reacting to nothing. It's there.

Anyway, of course good faith disagreement is possible. And believe it or not, I'd even agree with you about the actual and potential benefits of p2p file sharing to small acts. With one caveat, which I've been harping on: somehow, that band has to pay for the recording that gets shared. I have yet to see that addressed in a persuasive way, I'm afraid. I don't know if you've ever been in a touring band, or what your experience has been, but in my experience you don't really make that much money on merch, and much of what you do make goes to pay for expenses, to subsidize the tour. (Also, somewhat ironically, "merch" includes CDs, which have the highest profit margin.) Recorded pop music is really something I love, for its own sake. It's true there are types of music, genres, what have you, where the recordings are less important in the overall picture. There is, or was, nothing like a Grateful Dead concert, I've heard it said, and it didn't have much to do with the albums-- that's my understanding anyway. More power to the jam bands. Really. However, I don't think it's correct to say that people no longer want the products of "recording bands." They still buy them, and they still want to download them. There are, though, many people out there who seem to believe that these products just materialize on their own. They don't, and they won't ever, and that's really all I'm trying to get across.

Anyway, I hope you stick around because, as I'm sure you realize, there's a lot more to talk about.

Posted by: Dr. Frank at July 15, 2003 05:45 PM

Damn, dude - now I don't even think we're arguing at all! I thought this whole conversation was about how you're against file-sharing... I'll go throw another plate of crow in the microwave now.

Here's the way I see it: copyright law theoretically exists to protect artists from having OTHER people proft from their creative works without at least giving them a cut. My problem with the RIAA's approach is that they are abusing the fact that the law is technologically out-of-date. They are saying that GIVING away copies of records violates their copyrights, which, according to the law, is correct. The problem with this, as I see it, is that this has nothing to do with the theory underlying copyrights in the first place. That's what I was trying to convey in my original blog post - I called the law an "ass" because it is being USED in a way that is disconnected with its theoretical purpose.

Simply put: copyrights do not give you a right to make money. They give you the right to prevent OTHER people from making money off your works. If no one is making money off the works, there should be no copyright problem because the works have no economic value, that is, no one is getting money that should have been yours.

I know that saying "the works have no economic value" makes you crazy - but bear with me for a second. Music already is "free" in the sense that it can be given away without it being necessary to incur an economic loss. If I give you my MTX CD, I don't have it anymore. If I email it to you, I do. It's actually been this way for quite a while - remember the hubbub over kids' copying analog tapes. It's been possible to burn CDs for years. People COULD press their own vinyl discs if they wanted. File-sharing is just such an effective technology that it has reduced the cost of reproduction to virtually zero. A CD is tangible. Music is ephemeral. The internet makes the ephemeral free.

I know you know all this, but that's why these discussions invariably turn into discussions of alternate business models. You've proven that there are costs associated with producing music, and we are in agreement that it's a "good thing" for artists to be able to recoup their costs and profit from their work (assuming people enjoy it enough to want to buy it).

All the talk of T-shirts and G4s and live shows is intended as friendly, helpful suggestions. Think, "Hey, we all want musicians to get paid, and some dramatic new economic realities are creeping into the marketplace, so maybe we can find new sources of revenue and/or reduce our production costs so we can still get paid."

OK, seriously, enough from me!

Really, though, this has been a fascinating educational experience for me. I never would have had it without you and your readers. That quote from the Fugazi guy (about the difference between people "sharing" music and selling it) really crystallized what I was trying to get at, and I never would have found that interview without this discussion.

There is a lot more to talk about. I swear I'm going to give you all a break from me for a little while - but I'll be reading - and I'll be back!

Posted by: Steve at July 15, 2003 06:32 PM


I wasn't after an econ lesson exactly...and I think I've made clear elsewhere which side of this thing I'm on, viz. not the side that thinks Dr. Frank should eat album costs and make up for it on t-shirt sales. C'mon, does that sound like anything I've said or would say? Lookie here...

(1) Cd sales, or sales of actual recorded music, are necessary to recover costs of recording etc. given various other constraints about what kind of music we want, artist autonomy, and so on.

(2) Cd sales should pay for making albums.

(1) is true and (2) follows from (1). However, (2) is meaningless outside of the context of (1). (2) is what we're arguing to, rather than what we're arguing from.

In his first group of questions to Steve, Dr. Frank, after making many excellent and well evidenced points, seemed to be offering (2) as a sort of decontextualized intuition about natural economic orderings per se, i.e. arguing from (2) itself. I saw that as a confusion inviting confusion.

The point I've been trying to make is indeed technical, but I don't think it's overly mincing or pedantic --> an econ 101 lesson for the comments board. Anyway, it's a small point and probably not worth debating anymore.

As far as the trend thing. I think the notion is not so much about failing to "get it" as it is about role changes. Pop music is becoming more ambient (I don't mean that as a genre term) and less narrative or narrative-like. In other words, "getting it" or trying to "get it" just isn't part of that experience...and this isn't necessarily confined to new listeners.

Actually, there's an aspect of this I relate to personally. I'm 23 now, so I'm right about at the point where the ~(25-40) music buying plateau starts, so it could be mainly that, but whenever I buy stuff by new artists, which is rare, I buy it because it's decent to drive to or jog to or...hehe...sleep to. Anyway, that's a whole 'nother story...

"It's probably true, but I'd just like to point out then when we were kids we didn't get it either."

What? All that time I spent studiously constructing an identity from mtx and screeching weasel records...nah, I'm pretty sure that I (and I alone) did truly "get it." ;-)

Posted by: spacetoast at July 15, 2003 08:06 PM

"Dr. Frank, after making many excellent and well evidenced points, seemed to be offering (2) as a sort of decontextualized intuition about natural economic orderings per se, i.e. arguing from (2) itself. I saw that as a confusion inviting confusion."
Whereas now we have perfect understanding and harmony.
Always with the meta-stuff and the arguing and the logic.
I think we may agree on these points, tho I'll still say that whether you're arguing to, from, over or around (2), 's damn hard to make a living from the merch table. I ain't trying to make a general point, I ain't trying to be Up with People for natural economic orderings. I just want a drink.

"Pop music is becoming more ambient (I don't mean that as a genre term) and less narrative or narrative-like"
I hear this, but I just don't see it. Maybe the narrative sense in current music is infantile or reductive, but it's still there. Sure, there's non-narrative ambient music, but it's walking the same streets as Ravi Shankar (my all purpose crutch in this pseudo-debate). I'm just very skeptical of claims that pop music is undergoing a fundamental transformation of any kind. It's carefully kept from changing much at all.

"I'm 23 now, so I'm right about at the point where the ~(25-40) music buying plateau starts, so it could be mainly that, but whenever I buy stuff by new artists, which is rare, I buy it because it's decent to drive to or jog to or...hehe...sleep to."

You're going the ambient, it-was-at-the-checkout-at-Borders/Starbucks route? You know you could be formally excommunicated from hipsterland, right? Fight back, Mr. Toast, fight back!

Posted by: Marc W at July 15, 2003 10:15 PM


I don't buy just whatever, I just don't buy much new stuff or stuff by folks I don't already own stuff by. The last thing I bought was that Poison 13 cd Subpop remastered and put out a while ago...which I've now lost and replaced twice. That might not count as fighting back, but it's at least holding the fort, imo.

Anyway, I was never a denizen of hipster-land to begin with...and from the outside it's always looked more like lameo-land to me. I've mainly always been one of those guys who, to borrow a metaphor, gets asked why I never take this jacket off...

Posted by: spacetoast at July 16, 2003 02:30 AM

I hear you Spacetoast. I work in Olympia, WA and shop at a scenester record store there. The people there look at me like I'm a freak; I rather enjoy the tension, and the genuine, anthropologist-like curiosity they observe me with.
That said, if hipsterland is 'lameo-land' (where did the glorious rhetoric and diction that typified our earlier exchanges go?), what do you call the no-account suburb of most pop music? Narcolepsyville? Vegetative State?
I hate the sectarianism and dogmatism hipsters come up with, but please continue to buy good music. That way, all of my happy-happy predictions will come true.

Posted by: Marc at July 16, 2003 06:02 AM


You had come so far, and now you've reverted back to your "file-sharing undermines the principles of copyright" argument. You seem to be arguing that because file-sharing makes infringement very cheap, it renders the infringed works valueless. Thus, according to your argument, the RIAA is using copyright law to pointlessly and anachronistically protect worthless property. However, you are mixing up the concept of a copyrighted "work" with a copy of that work.

When you give away an MTX CD (a material copy of a number of copyrighted songs), you do not infringe anyone's copyright because (a) you are not making a copy of the songs; and (b) your distribution of the CD is protected by the first sale doctrine. When you file-share, in contrast, you do infringe because you do make a copy of the songs, and your distribution is not covered by first sale. The fact that the marginal cost of the unauthorized copy you make and distribute is extremely low has pretty much no relevance to whether the copyrighted work itself has value or is worth protecting.

Of course, it may be that file sharing makes copyright infringement so difficult to prevent that, as a practical matter, the copyright laws simply cannot be enforced and, as a result, become obsolete. I don't think this will happen. In fact, I read an article today that there has been a big decrease in file-sharing activity since the RIAA filed all those lawsuits against users. But, even if the copyright laws become unenforceable, the "theory underlying copyright laws" is not implicated.

Posted by: Aaron at July 16, 2003 07:15 AM

Thanks, Aaron. That's a good, clear explanation.

Posted by: Steve at July 16, 2003 02:44 PM

It's too bad that so many file-sharing advocates make this an argument about the music industry. Five years ago, I'd wager, 99 percent of the populace had never heard the name RIAA. Now everybody's an armchair "expert" on the music biz.

Why the change? Well, it's hard not to suspect that it's because a lot of people have had to scramble to figure out how to defend their downloading activity. They don't understand anything about copyright, or the fundamentals of intellectual property, so they've hit Google and tried to learn something about this "RIAA" thing that was suddenly braying about their beloved Napster.

Thus their argument has focused on the mechanics of the record business. That tack is, of course, quite arbitrary, and has nothing to do with law or morality. Because ultimately, none of this has to do with some organization in 2003 that happens to be called "RIAA."

File-sharing needs to be argued at the level of rights, law and morality -- not at the level of what's economically beneficial for parties x, y or z at this arbitrary moment in history.

Applause to all on this thread who have so eloquently and firmly defended the anti-file sharing position. The tenor of debate here is a big relief after years of arguing this stuff on message boards, where the ignorance and logical fallacies wind up making you want to literally pound your head against a wall.

Posted by: Cooper at July 16, 2003 05:30 PM

Cooper, you're right of course: none of this touches on the ethical/moral question about unauthorized copying. And you're right that the mechanics of the record business per se doesn't have much to do with law or morality. When it comes to law, though, I suspect, the mechanics ultimately will matter (whether or not they ought to)-- which is why I've always felt it important to try to make sure that the people making practical arguments based on "the way things work" at least have their facts right.

I suppose I shouldn't be, but I'm still a bit taken aback whenever I hear someone blithely declare the desirability of eliminating someone else's legal or customary rights for the sake of convenience, efficiency, practicality, or to lay the groundwork for the fulfillment of a Utopian prophecy. It may not rend the universe asunder, or destroy all music, but even if it were to change very little in the "way things work," that's what such a proposal amounts to. Really though, I'd say there's not even the slightest chance that the Dream of a Copyright Free World will ever materialize, in law or in practice. Infringement will continue to be infringement, no matter how many euphemisms or malphemisms are created in the rhetorical wars. The question is: what is to be done? I don't think that's an easy question.

Anyway, I'd like, once again, to second that emotion as to the remarkable lack of Usenet-ness of this and other comments threads on my blog. Astonishing. Though we might end up with some of that action if we really start discussing morality, as religious wars tend toward that direction. Here's hoping, though.

Posted by: Dr. Frank at July 16, 2003 07:19 PM

Thanks, Doc. I do want to say, though, that I mean "morality" as the realm of right and wrong. Discussing the morality of intellectual property ownership and file-sharing does not mean we have to drag religion into it. (Matter of fact, let's please not!)

Posted by: Cooper at July 16, 2003 08:37 PM


You asked: "What is to be done?"

Well, I know that I don't have the Great Answer. I've done whatever small part I can on my own, traveling the Web and making the case against copyright infringement, trying to help educate people in what can admittedly be an arcane area of law. So I guess education -- "This is stealing, and it is wrong, and here is why" -- is one part of it.

The RIAA lawsuits should be helpful, too. Best part of that deal is that guys like you -- artists unaffiliated with the RIAA -- get to reap the benefits without reaping the PR damage. Always nice to have somebody fall on the sword for you.

Ultimately, though, I don't know. Perhaps time will show us that freewheelin' downloadin' is a whimsy of youth. Maybe the simple act of growing up and learning how the real world works will help keep a mass of record buyers out there. But we still have to wait for the Napster freshmen of '99 to finish growing up before we find out.

Then again... I was at a dinner party last night with several well-hewn adults, including an attorney, who defended their kids' downloading (and who even offered the same lame rationales that I'd optimistically imagined were the province of teens -- CDs are "overpriced," today's music "sucks," the industry "had it coming," etc.). So yeah, maybe not.

Posted by: Cooper at July 16, 2003 08:54 PM

Why do people program in Linux?

There's no money in it. It requires an outlay of time and talent, not to mention the up-front capital investment of computer equipment, maybe formal education.

So why do people do it?

Posted by: Steve at July 16, 2003 09:01 PM

I don't know anybody who "programs in Linux," so I couldn't tell you.

But I'm assuming that the point you hope to make with this line of thought (and I will graciously apologize if I'm wrong) is that, "See, if lots of people will do activity X for the love of it, why wouldn't they do activity Z for the love of it too?"

If that's indeed your point, then this is my response: Nobody got into programming Linux with the idea that their work would produce ownership of the result.

Musicians and other copyright holders, on the other hand, have invested their energies and resources based on a good-faith understanding with society: That their investment would be protected. What file-sharing advocates seem to say is: "Yeah yeah, we had copyright laws and stuff, and you structured your life around the fact they existed, but sorry, we're pulling out of the deal. Thanks for making all these cool tunes, though."

And I think that gets to the nut of what's being bandied about on this thread: The "cool tunes" were created because their creators, for the most part, had an incentive to do so. The file-sharing and anti-copyright crowds want to take away that incentive (albeit perhaps unwittingly), or to at least change the incentive from an economic one to a purely emotional one.

It's laughable to me -- the idea that a five-year-old piece of software should automatically wipe out centuries of human enlightenment on which the fundamentals of copyright rest.

Posted by: Cooper at July 16, 2003 09:21 PM

By asking why people "program in Linux," I assume you really mean why do people write and then distribute software under the GNU GPL (or similar open source licenses), when doing so provides no direct monetary reward. You seem to be suggesting that musicians should (or would) do something similar if copyright were abolished. Your conclusion doesn't follow, however, for a couple of reasons:

1. The benefits of collaboration that are at the heart of the open source software movement are not really transferable to songwriting. Although collaboration between a couple of individual songwriters can be a great thing, it is hard to conceive of how open source songwriting would work or how it would provide better music than we get now.

2. Even if you could come up with some sort of open source songwriting scheme, it would only be enforceable if copyright law existed, just as the GPL is only enforceable because the software writers who release their software under the GPL own the copyright in their work, and can impose requirements on people who want to use it. The whole idea of open source is that authors of software allow anyone to use and modify their code, so long as the next person down the line also distributes his code under the GPL. This whole setup is totally meaningless and unenforceable without copyright law.

Posted by: Aaron at July 16, 2003 10:22 PM


In my experience, the vast majority of record stores in SF at least regard themselves as "scenester" record stores, which always made record-shopping a real drag for somebody like me.

Even though you knew that objectively the "cooler than thou" counter-jockeys were no smarter than, had better taste than, you, they still always managed to make you feel like shit when they stink-eyed your Donnas cd or whatever it was...in my experience anyway.

Most of the time anymore I'm comfortable with people thinking I'm a dork and whatnot, but when I was ~16 I hated it sooo much when those folks acted like they knew something important that I didn't. And, fuck, I made an effort...I wasn't leaving the house with my green day t-shirt tucked into my sweatpants...what more do you fuckers have a right to expect? Just sell me the damn records!

So I pretty much shop Amazon or even Borders if I can help it nowadays...my own bitter little protest against record store snobbery.

*Ahem*...end of excursus...


I like your "contract" conception very much. That notion suggests to me that the task of the piracy advocates is not only to construct and justify a new kind of consent-to-use ethics, but also to defend piracy against grandfather arguments that might be made with respect to works created under the superceded scheme. I think Aaron is right that there may be insuperable limitations on controlling piracy, but I agree with you totally that it is essentially an issue about stealing and any candidate proposal to solving the problem should acknowledge that.

Posted by: spacetoast at July 16, 2003 11:15 PM

Thanks again, Aaron. I'm with you.

I think you guys may have actually made a believer out of me.

At the very end of the day, the basic premise is that whoever creates a work should have control over the way that work is distributed and sold. If Phish wants to allow tape-trading and sell stash tins with little Phish logos on them, lots of luck to Phish. If I want to lay down grooves on a four-track and give the tape only to my wife with strict instructions that she never play it for anyone, anywhere, that's great. If Dr. Frank wants to give away a couple songs on his web site and also sell CDs with the understanding that people shouldn't throw 'em out on Kazaa, Dr. Frank's wishes should be respected.

Bottom line is that the artist should be the one who decides.

If these alternate business models are so great, people will use them voluntarily and everyone will be happy.

I feel like I'm starting to get it.

Does it sound like I'm starting to get it?

Posted by: Steve at July 16, 2003 11:54 PM

That's pretty much it, Steve. There is one caveat, however: you don't want to overprotect IP. One of the big advantages of IP over other types of property is that it can be used by others as the basis for new creative works. If your IP protection scheme overprotects you will inhibit such derivative creation. That's why the Copyright Act protects fair use, confers only a limited period of protection, and in many other respects does not give authors absolute control over their works. That's also why, despite my wholehearted support of copyright law, I am skeptical of the entertainment industry's attempts to grab more than they are really entitled to (e.g., the DMCA, the Sonny Bono Copyright Term Extension Act, etc.). In discussing these issues, it is helpful to remember Isaac Newton's famous quote, "If I have seen farther, it is by standing upon the shoulders of giants."

Posted by: Aaron at July 17, 2003 12:12 AM


It sounds like you're getting it.

2nd Caveat: In the comments thread following the post in which Dr. Frank first started picking at this scab, I advanced a notion about "restricting access" following consent, which Aaron rightly nailed for being clumsy and hopelessly underspecified. The fact is, constructing any kind of intelligently bounded consent doctrine, in this context especially, is an obscenely difficult thing to do, and any doctrine we might draw up would surely admit of ambiguous or controversial cases, as folks point out. But there's a sort of wedge argument here, according to which, because the boundaries of any morally concerned IP theft doctrine would necessarily be vague...susceptible of being inched back here and there...there can't be any such doctrine at all, or any such moral or ethical principle about consent as IP is concerned. That's basically wrong. It may be that no one scheme holds outside of a specific economic system, but that's an issue we don't need to deal with to conclude that piracy is theft, which it is. The upshot is: Having a principle doesn't mean not having vagueness, and having vagueness doesn't mean not having a principle.

Posted by: spacetoast at July 17, 2003 01:34 AM

One important point that I think maybe gets obscured (and that I may have lost track of in my earlier jousting with Spacetoast) is that "piracy" is a particularly egregious form of copyright infringement that may well be functionally and morally equivalent to theft, but not all copyright infringement is piracy. Making bootleg records is pretty wrong, and is even a crime. But George Harrison's swiping the hook from He's So Fine to write My Sweet Lord is not theft, except in the most attenuated and metaphorical sense. It was, however, held to be copyright infringement. So where does file-sharing fall on this spectrum? Well, I guess I agree that it's a lot closer to bootlegging than to George Harrison. I do think, however, that it is worthwhile to remember that there are degrees of nastiness when it comes to copyright infringement, and that the simple formula copyright infringement = theft is therefore misleading.

Posted by: Aaron at July 17, 2003 02:02 AM


I was making that distinction as well, at least in the other conversation. I may have used 'infringement' and 'piracy' interchangeably in various places, I don't remember, but I'm quite positive I explicitly held out what I termed "fair use stuff" specifically as not to conflate that kind of thing--e.g. the George Harrison case--with theft via kazaa. I intended that distinction in my comments here also. To be sure, I accept the Millian "marketplace of ideas" as a basic value.

Posted by: spacetoast at July 17, 2003 05:38 AM

With all the talk of a virtual music doomsday – a world where artists are unable to make great music because of a lack of funding – I’m left with one baffling question: Where’s the proof? Internet file sharing must have surely peaked. And record companies, even the small ones, still exist…despite the claims of plummeting record sales. Even during a time when people are struggling to make ends meet, labels are still putting out music and selling records. Droves of musicians are not parading around in the streets armed with tin cups, begging for spare change. Well, at least not the musicians we’re talking about.

Someone must be buying music. For all of Ben Weasel’s ranting about lost earnings, I’m sure he still doesn’t need a day job. In fact, I bet he’s doing all right - even with his half-hearted attempts at recording decent albums in the past 10 years. Attempts that he conceded were driven by money. And I’m not saying there’s anything wrong with making money off of your work. In fact, I’m guilty of repeatedly buying these records, hoping that the real Screeching Weasel will return. I’m simply wondering why a guy, who’s put out dud after dud since “Wiggle”, is complaining about declining record sales. His contempt for his fans is well documented in his own words. And his actions speak even louder. When was the last time you saw Screeching Weasel/Riverdales/Ben Weasel on tour? If independent artists are looking for a leader to make their case against internet piracy, Mr. Foster certainly should be checked off the list.

And when they find that great advocate for the struggling musician, what will they do? I’ll tell you what they should do first. They should draw up protest signs, write to Congress, and take their cause to the streets.

But they should start by boycotting free libraries.

These places are giving out work from struggling authors all the time. The library user brings the book home, reads it, and then brings it back. All of the “intellectual property” has been robbed at this point. There’s no reason to purchase the book. This intellectual theft revolution has been going on since words were written. (And, yet, books are still published and writers still paid). The internet file sharing system has the potential to be the world’s largest free music library. Therefore, free libraries and internet file sharing must be considered close relatives, and struck down with equal force. This way, everyone is properly paid. The authors will get more money for their books, and musicians can live the kind of lives they always wanted. To hell with those that cannot afford to buy a book or a $20 recording. Music and knowledge will be for only those privileged enough to afford it.

OK, that’s enough satire for one paragraph.

I can sympathize with music artists who believe their lifestyle is in danger because of internet file sharing. They believe, quite earnestly, that people will simply stop purchasing their albums in favor of a downloaded song. But it hasn’t happened. And there’s no reason to think it will.

I buy a hell of a lot more records than I download. And I’ve never downloaded a whole album. I don’t have the time. Like most music fans, I’m a geek. I like the artwork and the packaging. I love it when a label offers signed copies to the first 100 orders. I’m a sucker for clever marketing. But I sure am glad I have the choice of downloading a few songs before I buy. Consider this: Every great band puts out a lousy record once in a while. Imagine someone walking into a store, buying a crappy record, and never giving the band a second thought. Now imagine the same person, going on-line to download a selection of songs from each album, and becoming a true fan. A true fan will line up at the store for the next release with his hard-earned cash. A true fan will be the first one at the door when the artist comes through his or her hometown.

Those that would seek to build concrete walls around “intellectual property” are the real thieves. What a cynical view of the world – that simply listening to a song should be considered theft. Copyrights should protect the work of the author by making sure his or her words are represented under the right name; they should not be used to block people from listening to music – or from reading books.

Dick Dastardly

Posted by: Dick Dastardly at July 17, 2003 02:37 PM

Dick, I don't think anyone here, even Ben, ever claimed that there was something wrong with listening to music before you decide whether you want to purchase it. Or that listening to a song is theft. Come on, man.

A lot of people enter this argument using themselves as examples of responsible Kazaa users, i.e., I always buy more than I download, I never download whole albums. That's swell. But you know there are people who do download whole albums, who intentionally use file sharing technology to avoid paying for things they really ought to be paying for. You get what you can for free, freeing up more resources in your entertainment/art budget for the stuff you can't get for free. The attraction is undeniable, even for good, decent people who mean no harm. But it's not really fair to the creators of the easily-acquired stuff. Right?

The rhetoric of defenders of this mode of ouchless music distribution also often encompasses calls for a sweeping revision of writers' rights that really would wreak havoc on the ability of many writers to continue to write. Maybe as it stands today it doesn't do as much harm as some say. (I'd actually tend to agree with that, though it's simply not true to say it has zero effect.) But that doesn't make it right. Anyway, I don't think the tin cup standard is what we should be shooting for here.

Finally, I don't think the library comparison is very apt. Can you see the difference between borrowing a physical object like a book or a record on the one hand, and, on the other, making and distributing an infinite number of copies of it? I can.

Posted by: Dr. Frank at July 17, 2003 04:34 PM

Spacetoast -- I realize you excepted fair use and free speech type stuff, but my point is that even actionable copyright infringement is not necessarily piracy (or equivalent to theft). Anyway, not a big issue here since file-sharing is, I agree, pretty piratical.

Mr. Dastardly -- I just don't know where to begin, and unfortunately don't have the time to list all the things that are wrong with your argument. Here is one thing, though: file-sharing is not "just listening to a song," it is, rather, copying and distributing a song (note that no copy is made in library lending). Nor does US copyright law have anything to do with attribution rights (except in very limited circumstances). OK, that was two things. Oh, and then there was your irrelevant ad hominem attack on Ben (and just when we were all congratulating ourselves on the civility of this forum). Now, that was three things. I really have to stop. Spacetoast, if you are so inclined, I invite you to unsheath your logical hole-poker and have at Dick's post.

Finally, here are some interesting developments:

A new bill proposed yesterday by two leading Democrats envisions jail time for file sharing activities. The Author, Consumer & Computer Owner Protection and Security Act of 2003 would make it a crime to provide false information when registering domain names as well as to upload any copyrighted work to a publicly-accessible website.

Bill at http://www.eff.org/IP/P2P/20030716_conyer-berman.php>

Coverage at

Posted by: Aaron at July 17, 2003 04:51 PM

"who’s put out dud after dud since “Wiggle”..."

Yer crazy, Dick. "My Brain Hurts" might be the best pre-"Wiggle" record, but "Teen Punks..." had some gems on it too, and "Bark Like A Dog" was no "dud." (Pardon me, Ben, whilst I put my lips upon your ass and smooch away)

"What a cynical view of the world – that simply listening to a song should be considered theft."

You also don't seem to "get it," Dick. Your library analogy isn't applicable, as Frank just explained.

"Consider this: Every great band puts out a lousy record once in a while."

Jawbreaker never put out a lousy record. I learned about Jawbreaker after I'd bought the first Jets to Brazil CD (at the recommendation of a friend) and someone told me that this Blake Schwartzenbach guy in JTB used to have a band called Jawbreaker. Later, I was in a used record store, found a copy of Jawbreaker's "Dear You" on CD, and picked it up for six bucks. I subsequently bought every other Jawbreaker CD, as well as vinyl where I could find it. Internet file-sharing played no part in my discovery of Jets to Brazil *or* Jawbreaker.

I guess what I'm saying is that before filesharing was as commonplace as it is now, people *did* make connections between bands/genres/whatever and they did take "risks" on purchasing records they haven't even heard one snippet of. (I wouldn't have bought the first Riverdales record if I hadn't known that they were 3/4 of Screeching Weasel. Etc.) Filesharing may be great for many reasons, but I don't think "free, unauthorized previews of music" is among the easiest to argue for. Yes, there are others like you who will buy something if they hear it online for free and like it, but there are others who don't, and who think it's absurd for anyone in this "day and age" to actually lay down their $ for something they could pretty easily have for free.

I just thought of something else, as well-- Record reviews (in magazines, online, wherever) ought to count for something, I think, as far as "convincing" people to pick up new CDs. Isn't that more or less why they exist? I'm not *against* new technologies or new ways of doing things, but...

I'm just saying.

Posted by: geoff at July 17, 2003 05:06 PM

Good Lord, will somebody please take the "public library" argument -- along with its cousin, the "Blockbuster video" argument -- out behind the barn and put them out of their misery?

The library, or video store, owns authorized copies of copyrighted media. It does not create a new copy and hand it out. It's so simple, it's sad that it has to even be explained.

The public library fallacy is valuable in at least one regard: Its presence is a quick, handy signal that a speaker has no clue what he's talking about.

Posted by: Cooper at July 17, 2003 06:14 PM


Just as long as you're not trying to hold me to a defense of the whole cannon of "strong IP" decisions, I think we understand each other.

...I do think everyone involved with what 2 Live Crew did with Muddy Waters samples should at least be tarred and feathered, but that's an aesthetic argument entirely...


Etymology lesson: A "dastard" was not merely a dullard or dimwit who undertook malicious acts, but such a person who did so in a craven or skulking fashion. 'Dastardly' is a wrong surname for you. Even in a disembodied context like this, and especially following 60 some odd preponderantly thoughtful and substantive comments, it surely takes some brazenness to publicly masturbate to your own nonsensical constructs.

For future reference, if you mean to make a practice of this sort of thing, just plain 'Dick' might be a more apt choice of monikers. Alternatively, you could drop the garbage and try to participate usefully.

Posted by: spactoast at July 17, 2003 07:31 PM


Thanks for the etymology lesson (are we talking Greek or Latin?), but I don't think you're one to poking fun at my pseudonym. You sure use a lot of big, fancy words. Are you sure I'm the one publicly masturbating? You seem to get an awful lot of pleasure from a dictionary.

It seems people get angry when you participate in a debate, even when the purpose of the blog is to promote discussion. But I do find it amusing that my posting has prompted a firestorm of comments not having a whole heck of a lot to do with the issue at hand.

Since I lack the intelligence and vocabulary to consider myself a scribe worthy of your presence, I'll stop participating. You can all just continue patting yourselves on the backs without any disturbance from me.

-Dick Dastardly (just ask Spacetoast about the meaning)

Posted by: Dick Dastardly at July 17, 2003 08:26 PM

Cooper, your quick dismissal of the library argument is misguided. How about if I buy 10 copies of a CD and let anyone "borrow" these copies over the internet, using DRM and all that to make sure there's only 10 working copies at any time? (iTunes does something to that effect already)

In fact, why don't we take it a bit further and split the albums in songs. Assuming 10 songs per album, there are 100 songs available for borrowing by anyone, around the clock, around the world, at a moments notice (given availability). How is this different from a digital version of a library.

We can keep going: split every song in 10 pieces for individual borrowing: now 1000 people can listen to my copies concurrently. Split a few more times, and you end up having the population of the earth listening at the same time to my 10 copies, without making additional copies. (500,000,000 bytes x 10 copies = 5 billion bytes available for borrowing).


As for the whole copyright debate, you all seem to have forgotten to consider the third option (in addition to copyright and philantropy): first release. Clearly, before any piece of recorded music is unleashed, the artist has complete control over it. This an appropriate time to charge for it, given a lack of copyright legislation. Besides the easy enforcability (gimme money and I release the file), there's also a nice philosophical aspect in that you charge for your work (however much the market can bear), not for someone else going to the trouble of making copies.

This model applies to many patents as well, where a drug company could charge an initial lump sum of money to make the drug available, and then let everyone have a go at producing the pills cheaper.

"Here's proof that this vaccine of ours is completely effective against HIV/AIDS. We think that it ought to be worth some $100B to save Africa and large parts of San Francisco from widespread misery, so pony up, or we'll keep the pills to ourselves."


"Hey, remember me? I wrote that brilliant song you all loved last summer. Here's a preview of my new album, listen to it, you'll love it. It took a lot of work, and creative suffering to get this done, so I'm gonna need a million dollars for this album, or I won't release it."

Anybody who wants the drug, or the album, released is free to pitch in, if they like. For the drug, I would imagine raising $100B doable, if the proof was there. For the music, it all depends on the audience's fancy, of course. Once released, the proverbial cat is out of the bag, but there's no longer any need for IP law since the creators have already been paid for their efforts.

Posted by: Jakob at July 17, 2003 08:47 PM

Jakob: I'm not sure I get your digital library idea, but it strikes me that (1) you can't get a song onto your computer without making a copy of the recording, nor can people download or listen to it without making copies (but explain to me this DRM stuff -- I may be missing something), and (2) copyright law gives an exclusive distribution right as well as a reproduction right, so the model you propose would presumably infringe that right also (since you are not merely lending or selling lawfully acquired material copies, which is what first sale protects).

As for your "first release" idea -- again, I may be missing something, but how are you gonna coordinate all those people to kick in for the new AIDS drug or the new record album. Are you imagining some sort of pledge drive every time someone records a record or makes an invention --"C'mon folks, just a few more contributions and we'll release this great new CD for all the world to enjoy!" Doesn't sound all that efficient to me, but again -- please explain.

Posted by: Aaron at July 17, 2003 09:20 PM

Aaron: You must've heard about some of the Digital Rights Management technology that is being developed? For example, I can't copy a song I bought on Apple's iTunes store to my friends computer and play it there. I can _move_ the song there, but then I can't play it on my machine. I'm not sure how they do it, but I think they're using a central server to help out with some things. In Apple's case there's an allowance of 4 copies per licence, but you get the idea. With iTunes, you're allowed to move songs as much as you like, but you can only have 4 working copies at the same time, through some technological wizardry of theirs. There must be plenty of workarounds, but still (I personally don't think copyrights and patents are a good idea in this day and age).

On the "first release" thing, I agree that getting people's attention is an issue. However, that's a problem now too (huge advertisement budgets), so there's no new problem. As for coordination, a few sites like eBay would do the trick: hold the money in escrow until the limit is reached and the information released, there are lots of things you can do to improve the process. In many situations, you don't even need lots of people to contribute: a wealthy individual could decide to pay for the newest Boy Group album on her own, or a large public institution, like the U.S. government, or the U.N., may decide to pay for the release of that medicine. Hey, Bill Gates might even come out of the closet and pay for it himself =). Who decides to pay doesn't matter: once released it's free for all _and_ the creator gets his due.

I'm not saying it's perfect, but it's not broken. What _is_ broken is today's habit of fixing technological and business-model problems by legislation. As far as I can tell, charging at first release is a viable alternative to copyright and patent law in our increasingly connected an globalized society.

Posted by: Jakob at July 17, 2003 10:10 PM

To clarify: my posting on the "digital library" thing was only intended to counter coopers outburst about the public library argument. If "lending" is ok, but copying is not, something is broken.

Sure, only one person can read a library book at a time, but if you lend the pages individually, hundreds of people can read it simultaneously (given some clever organisation of course). With computers, there is really very little difference between "lending" and copying since the lending can be made so extremely fine grained, organized and efficient.

Posted by: Jakob at July 17, 2003 10:17 PM

"If 'lending' is ok, but copying is not, something is broken."

Say what? Have you stopped to think about what the word COPYright means?

You can sit here writing reams and reams trying to find something analogous between the public library and Kazaa, but you're wasting your time. It's all very simple: One trades in authorized copies of copyrighted material; the other trades in unauthorized copies of copyrighted material.

Posted by: Cooper at July 17, 2003 10:34 PM

Jakob, I know what digital rights management is and how it's used by copyright owners to control access to their works. I just didn't see how you were going to start your own unauthorized digital library without making (and distributing) unauthorized copies. I still don't.

As for your IP auction idea, it isn't a question of getting people's attention -- it is completely unworkable because you have destroyed the incentive for anyone to pay any substantial amount of money for release of the IP in question. Why would Bill Gates or someone pay a lot of money for the release of something when he would never be able to recoup his investment? Altruism? For that matter, why would anyone pay even a small amount if all they have to do is wait around for a bunch of other suckers to pitch in the money? I'm sure someone with more econ training can better explain exactly why this will never work, but believe me, it will never work.

Posted by: Aaron at July 17, 2003 11:21 PM

Cooper: And thus we get back to my original posting. If lending of digital works is allowed, I can trade in only my own authorized copies and still cause considerable "harm" to the author of the work.

In the simplest case, I have a legitimate music collection, and any song I am not listening to at this moment is free for anyone to borrow. When they are borrowing, no-one else is allowed to use it, so no unauthorized copies are being made.

If I have 1,000 legitimate songs, then even in the simplest case, I can provide free and legitimate access to 1,000 "lenders" world-wide at any time. See previous posting. Clearly, libraries are only accepted due to tradition and due to the low efficiency of their lending system. If we were to make the system more efficient (through computers and networks), legitimate copies of copyrighted works would be freely available to everyone at no cost, and content producers of all sorts would have to switch to first release financing of their work.

Posted by: Jakob at July 17, 2003 11:28 PM

Aaron: Why should anyone pay for an AIDS medicine to be released? One argument that would be pretty convincing is if they're dying from it. If I was dying from AIDS I would sure as hell do my best to get it released. If Bill Gates was sick, I'm sure he'd be willing to pony up a big wad of cash to get well. It's not about altruism, it's self-interest. If I don't pay, and no-one else does, then I suffer.

If the medicine was something a bit less dramatic, let's say a new pain reliever, then perhaps a group of pharmaceutical companies might be interested, since they would get to sell more pills, and make a profit that way. Of course, they wouldn't be able to make a profit if someone else could produce the pills cheaper (and didn't take part in paying for the release), so it would require some strategical thinking. Philantropists and/or governments would also be likely financiers: remember that these drugs are already developed, so there's more incentive to buy now as opposed to support some vague and risky research. Of course, the price would be considerably higher too.

Why should anyone pay for a new album to be released? Well... if I want it, and it's not released yet, I have a choice of paying up (the whole remaining sum, or part of it, depending), or waiting. If I don't pay, the wait will be longer, potentially indefinite. If the wait gets too long, the artist may decide to lower the price, since the market obviously could not bear it. One problem I see with the idea is the lack of immediate satisfaction: unless your a hardened eBayer, you're used to paying and getting something at the same time.

Posted by: Jakob at July 18, 2003 12:40 AM

Jakob, you've got some interesting ideas there. But wouldn't it be simpler to just, you know, buy the damn album? ;-)

So I tell the studio owner and the engineer and the mastering lab that their payment will depend on how many donations I get when I hold the finished product for ransom? Think they'll go for it? Or should I announce my recording plans and wait for the Amazon honor system bucks to pour in before I book studio time?

Spacetoast and Dick Dastardly: play nice, boys. Don't make me come down there.

Posted by: Dr. Frank at July 18, 2003 02:01 AM

Dr. Frank: Thank you. I'm all for buying the album, and I expect I would continue doing so after the abolition of copyright law. I'm all for supporting artists, and I prefer to have my own "original" copy of the music I like. I read Cory Doctorov's latest novel for free online, then ordered the book from Amazon. I regularly send a few dollars via paypal to online artists to show my appreciation, whether they ask for it or not.

However, I'm all against restrictions on the distribution of information, which has this beautiful property of perfect and almost free copies.

Surely, you have heard about the abortion that is DMCA, the ravings and plunderings of the RIAA/MPAA, kindergartens sued for singing copyrighted songs in Europe and the US, companies being threatened for using Linux, that allegedly has a few lines of copyrighted code in it, Dmitrij Skylarov being thrown in jail for writing a program that helps blind people read eBooks, that norwegian guy writing a DVD player for linux, with similar results, some guy getting fined 800 million dollars + 5 years in jail (or what was it?) for making a harmless TV signal decryption device? The list goes on and on.

As for the patent system, you must have heard of people in Africa refused medicine because they can't afford to pay the royalties (the pill itself would be cheap if it wasn't for the royalty), and the likes of amazon one-click shopping, Compuserve's claim on the GIF image file format, or British Telecom's claim on hyperlinks?

These repulsive situations all stem from the same problem: information that wants to be free, but is not.

I suspect the studio owner, engineer and lab will take the same deal that they do now, whether it is cash up front or a (large) cut of the profits, I don't really see the difference there. Are you saying there's no risk involved in the current system? Come on now.... the only major difference is the time at which the payment is made. At first release, or per copy.

I agree: it's different, and it may take some serious getting used to, but it's not broken.

Posted by: Jakob at July 18, 2003 04:28 AM

But Jakob-

Here's the econ: A good is a "nonrival" good when it doesn't diminish with additional consumption. A good is a "nonexcludable" good when its consumption can't be restricted following payment. When a good is both nonrivalrous and nonexcludable, it's a "pure public good." Usually the production of public goods has to be funded publicly, hence the 'public.' But that's not always the case. Advertising-sponsored radio and television are two examples of "public goods" produced by the private sector. But the private sector won't produce goods for which nonexcludability creates a serious "free-rider problem," because the "chumps" won't carry the free-riders...

...which you think is fairer or more desirable than just excluding free-riders via copyright protection?

Here's the analogy: If you have a lemonade stand and you charge $1 per glass for the first 10 glasses with the understanding that the 11th glass and on will be free and nobody drinks until you sell 10 glasses, you will not get $10. You'll get, at best, an angry mob waiting around to be the 11th "customer," or, more likely, a lack of interest because nobody has time for that crap. Economic data always bare this out because of these guys:

(a) Economic actors can be predicted to act rationally.
(b) It's irrational to be a chump.

Caveat: Under extraordinary circumstances, it could be rational to *act like* a chump, e.g. it's more rational to foot the bill for a new drug than to die of aids or even suffer severe chronic pain. But mtx records don't satisfy this requirement because they are less basically desired than things like a life without physical pain (just take a gander at Maslow's hierarchy of needs)...and may even conflict with this desire at certain Jon Von moments...

So far, I've seen two categories of response here:

(1) The album-as-marketing paradigm.
(2) The chumps will carry the free-riders.

You fit into type (2), but your "pay for release" scheme is the first I've seen to unapologetically stipulate screwing the chumps.

Anyway, this doesn't even begin to get into the ways in which the all or none "pay for release" scheme apparently distorts the normal process of reaching market equilibriums via normal supply and demand schedules--how do suppliers non-arbitrarily determine threshold values and how do consumers decide how much to pay? ("I like mtx...hmm...six dollars worth"?) It's not like an ebay auction because there's no bidding.--or the disturbing implications for market transparency.



Posted by: spacetoast at July 18, 2003 04:54 AM

Actually, now that I think of it, Dr. Frank could test the "pay for release" scheme fairly easily, in the following way:

(a) Have a show and let everyone who wants in into the venue.

(b) Pick a dollar amount out of his ass.

(c) Refuse to play until he gets that amount.

"...and I don't care where it comes from."

Also, he could adjust the dollar amount up and down at various points based on what he thinks he can get. If it's for some reason considered undesirable that Dr. Frank himself interact with the crowd in this way, there could be an MC or something.

Posted by: spacetoast at July 18, 2003 06:08 AM

"But mtx records don't satisfy this requirement because they are less basically desired than things like a life without physical pain (just take a gander at Maslow's hierarchy of needs)...and may even conflict with this desire at certain Jon Von moments..."

This is true in ways only true love, death and gravity have been true before. It's THAT true.

Your Dr. Frank show idea makes me laugh for two reasons:
1: I can easily envision a band doing this, only couching it in benefit terms: 'We're not playing until we get $100 for victims of US foreign policy! Come on, this is serious.'
2: This is basically what Oral Roberts did in the 1980s. 'Send me, oh, fuck it, $30,000,000 or God takes me home.' Worked like a charm.

I see where you're going with making an analogy between the current system of paying back an advance and your hypothetical system. But you've got to admit that the label system has its advantages. It's terribly efficient to have the risk in an investment like this be borne by one firm - it makes risk assessment easier on everyone's part, the studio owner, the label, the artists.
I know, I know, information wants to be free. But risk doesn't, and it's damned difficult to gather the capital necessary for the production end of intellectual property without firms willing to bear the risk involved - labels, publishers, etc.. Maybe you're new here, but Dr. Frank makes this point like every 6 hours; seriously. Without these firms, bands can't record. And you can't sell a record simply by telling people it's going to be 'totally mindblowing,' and getting them to pay the studio directly.
You say, "I suspect the studio owner, engineer and lab will take the same deal that they do now, whether it is cash up front or a (large) cut of the profits." Do you really suspect this, or do you just hope it? If you went into a studio right now and booked a month of time and told the owner he would be paid back by, "the people," I suspect he wouldn't see it as the same deal he's got now (you know, the whole getting a check before hand). He may think it's pretty shitty, in fact.
Your system works, given some assumptions, for distributing a ready-made CD. Dr. Frank says: 'How does it get made in the first place?'

Posted by: Marc W. at July 18, 2003 07:55 AM

Marc W.: I honestly don't see how the risk part is different here... in the current system, the label/publisher/whatever "finds" you, thinks you're good, and pays you a little advance money to finance a recording, yes? This could still be exactly the same. In the current system, the label then gets to sell CD's to recoup their investment and any expenses they may have had, usually giving the artist a piece of the action.

This part would have to change. It would probably be a good idea to release a couple of songs for free or almost free, to get the attention of the audience. If enough attention is received, the rest of the album can be put out for paid release. The label would take most of the money from the sale, and the band may get a small cut, although usually after paying back expenses etc, there may not be much left (just like today). For the next album, the band will have more name recognition, and they may be able to rake in more money at the next sale. The label is still taking the risk, and setting a price they think the market can bear.

So as far as the "how does it get made in the first place" question, the answer is: the same way it's getting done today. I agree that having a label that aggregates high-risk bands into a medium-risk, profit making business is a good idea. My only suggestion is that the copyright idea is redundant and broken, and that we can do just as well without it. The tricky part is to get people interested in an album without "releasing" the majority of the content. Live concerts may be one alternative, previews is another, but snippets of songs isn't really going to cut it. Singles is another, where two "teaser" songs are free, and the rest are released for a price.


Spacetoast: I'm not convinced by your argument. Sure, there will be free-riders, but they are not incurring a cost on anyone. If I want the new metallica album released, and noone seems to be paying them, then I better pay myself, or I wont get the album. I'm sure there are ways to arrange things so that the "chumps" feel less "cheated", like the autobidding and dutch auctions on ebay. One obvious advantage is that you could pay however much you want. If I pay $5, I won't feel cheated even if some other people paid nothing. If I really need the album right now (say, for the introduction march at the olympics), I'd have to pay the whole remaining amount myself, or be without a soundtrack for all those athletes in their pretty jumpsuits.

I really like your idea for testing this. However, the audience would have to be informed in advance, and the price probably announced in advance. Let's say there are 200 in the audience: then a price of $800 would be fine with everyone, $2,000 may be pushing it and $10,000 is way too high. If the price is too high, going to the place is a waste of time since there won't be a performance. Some people may not pay anything, and some other people have plenty of dough and just want the concert to get going: they'd put in a twenty or a fifty no sweat. If he's playing in a bar, he may get the bar owner to put in a few hundred to get the party started (and the bar sales). Now, there is a difference between the physical concert and the internet release sale, but it's pretty close, and would be great fun to observe! Since all big artists are at least an hour late on stage, the collection could start at the stipulated start time, and the artist would show up the moment the limit is reached! I love it. Of course, you can't have a warm-up band that's too good: then no-one may want to pay a dime only to see them be replaced by the much less interesting main attraction =)

My apologies to Dr. Frank if the numbers are way off, I have no knowledge of the esteemed doctor's performance statistics. =)

Posted by: Jakob at July 18, 2003 09:08 AM


"I'm not convinced by your argument. Sure, there will be free-riders, but they are not incurring a cost on anyone."

You have to do better than that. (a) Essentially, everyone has a choice between being a free-rider and being a chump and, barring the extraordinary circumstances stuff I made room for, being a free-rider is the rational choice. (b) Economic actors can be reliably predicted to make rational choices. This is basic economic theory. You can't just sweep it under the rug. You have to give an account of why it's wrong, which amounts to showing that (b) is false. If you can, or know of any work that can, substantiate that claim, lay it on me man, because I know some econ profs it will like totally wow. The issue isn't whether free-riders incur any additional cost, that they won't is part of the definition of a free-rider, and part of the meaning of a good's being nonrival. The issue is that everyone chooses to be a free-rider who has that choice, so the thing stagnates. Sometimes this is framed in terms of the "prisoner's dilemma" problem. To be clear...

...maybe you know the old gag where the economist doesn't pick up a $20 bill he sees in the middle of the street, reasoning that someone else must've already picked it up...

...the problem isn't literally that nobody in the world ever acts like a chump, but that any scheme depending on chumps, i.e. allowing the free-rider problem, isn't sustainable. There's nothing the least bit controversial or speculative about my claim and it's certainly not an issue about "feeling" cheated. C'mon, I'm taking your scheme seriously; you can't just shrug off a couple hundred years of economics. Shoulder your burden, man.

Another problem for the "pay for release" scheme:

The less essential a good is, the more power consumer cartels have to collectively drive its "threshold value" down. At least in principle, at the hypothetical Dr. Frank show, I could organize ~200 people to bargain Dr. Frank way down, because we all know that ultimately, he needs the dough more than we need the show...our luxury, his living, and all that. Whereas, the more essential a good is, the more incentive creators/producers have to sit on it or drive its threshold value way up. If I invent an aids drug, the smart thing for me to do is to keep it under my hat until either Bill Gates gets aids, or a maximum number of people get aids and are willing to shell out their life-savings to me and the like. I sympathize with your social-work inclination to free info, but I think even ickier externalities show up in your scheme.

As to our little show fantasy, I think it would be an extremely interesting experiment. I agree that the audience would have to understand the terms beforehand, but not in a way that "artificialized" it or made it a novelty. Also, I'm not clear on this point, are you saying that the initial amount can go down, but not up? I don't see where you get that.

Dr. Frank? eh? For science?

Posted by: spacetoast at July 18, 2003 11:30 AM

Forgive me; I’m kind of new at arguing this point.

By arguing the dreaded “library analogy”, I’m placing music in the realm of thoughts, ideas, and knowledge in general. Spacetoast seems hell-bent on making this an issue of simple economics. Economics has no reign over free speech or free thought; or at least it shouldn’t. Ben lamented when someone compared music to a commodity, a simple can of Pepsi. So do I. But you all seem to be in the business of reducing the importance of music to a physical object. Isn’t it much more than that? Don’t you want the greatest amount of people possible to enjoy your music? When are you going to learn that the people downloading your songs are on your side? I’m willing to bet that you would have sold the same amount of records regardless of downloading. You might have even sold more because of it.

Since we’re talking economics, let’s talk about market penetration. In business, the percentage of people using the service is just as important as the price of that service. Considering the fact that indy labels lack the distribution resources of major labels, you’re at a serious disadvantage when it comes to penetration. Wouldn’t you love to have more penetration? I know I would. Eh-hem, but I digress. The point is that when you have a greater amount of people listening to the music, you have a greater chance to sell.

I’m not on the side of those who say they want a “revolution” to destroy the recording industry. I think this is not only destructive, but impossible. And the state of the recording industry proves my point. If everyone holds the “I’m in it to destroy the recording industry” point-of-view, they have failed miserably. Eminem still sold millions of copies of his records, and I’m sure he’s also one of the most downloaded misogynists ever to utter hateful words. Hopeless, Panic Button, Lookout!, Liberation, Fat (yuck), and other indy labels are among the living. There is no mass grave for major or independent labels. When indy labels do fall, it’s more because of a lack of interest than some internet pirate. Look at SubPop. They might be on their way out, but can you think of a decent band, even by indy rock standards, still on that label? The internet piracy revolution has been proven unsuccessful. So what are you all so worried about?

I guess since it’s not much of a practical issue, it must be a moral one. Well, to quote one of the best (and worst) musicians on the planet, “I don’t think I want to be subject to your morality.”

You should embrace the notion that music exists not only to be bought and sold, but to be heard. And you will still buy and sell it. I’ll be on your side when our computers can spit out perfect copies of the CDs, complete with artwork and other goodies for free. And I do realize that some people are in the business of making and selling these sorts of copies, and those are the ones that you should focus your attention on – the real pirates.

-Dick Dastardly

Posted by: Dick Dastardly at July 18, 2003 01:16 PM

"can you think of a decent band, even by indy rock standards, still on that label?"

Yes, the Shins. Some of the kids like Hot Hot Heat as well.

For what it's worth, I agree that filesharing will not be revolutionary and no paradigms will shift. That argument is best kept unsoiled by folk wisdom about how music wants to be heard and how economics is for squares. We're not talking about music qua music here. We're talking about recorded albums with production costs of, I'm told, a minumum of $10-20,000. Studio time and production/engineering does not want to be free, apparently.

Posted by: Marc W. at July 18, 2003 05:20 PM

"I don’t think I want to be subject to your morality."

This is only a rhetorical response, but... fine, then. Gimme all your stuff or I'll bash you good.

See how that works?

Posted by: geoff at July 18, 2003 05:50 PM


I'm not making it about economics, it is that way. It costs 10-20k to make an album. Marc makes the point that Dr. Frank makes this point like every 6 hours like every 6 hours. Start there. Also, the general idea about "penetration" (in your first sense, anyway) is getting the product out to more people who will *buy* it.

...cow?...milk for free?...hmm?

Posted by: spacetoast at July 19, 2003 04:49 AM

Anybody who's wondering what we're up against here in the most basic battle of all -- education -- get yourself ready to be depressed and hit the address below. This is actually linked by Drudge today, and is the kind of thing that makes me feel like just giving up.


The writer -- who apparently fails to recognize how copyright law provides him a living too -- is obviously an idiot. As are the correspondents he has quoted. If this is the conventional wisdom that's out there, I just don't know how the fight can be won. I honestly don't.

Posted by: Cooper at July 19, 2003 11:58 PM

Wow, how quickly this discussion has died. Could it be that there are more pressing things to worry about?

Or, could it be that those opposing the distribution of free thought (set to music) are embarrassed by the legal outcome? Because you can't really be happy about ordinary joes being sued for tens of thousands of dollars by companies that don't really need the money. Can you?

Posted by: Dick Dastardly at September 23, 2003 09:13 PM

I'm surprised no one introduced the alternative model which has been proposed by Lawrence Lessig (Stanford professor).

It seems to be gaining popularity in the P2P ranks, and still held in high disdain by the content providers. Essentially, a tax would be levied on either ISPs and/or Media Storage Devices -- and then the tax would be redistributed to recording artists/songwriters per capita.

Look here for details:


This would seem to answer the question: Who's going to pay for the studio time? Well, we are, through blanket licenses that are repaid to artists (who, in turn, pay studio owners).

BTW, this model has been used for a few decades in Europe with cassette tape. They use PRO data in-country to redistribute the money to the artists. . .

Posted by: c at March 27, 2004 11:46 AM

My God this man Dr Frank is an ass. I think all other points have been covered.

Posted by: George S. at April 20, 2004 12:34 PM
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