A recent essay by Rasmus Fleischer in Cato Unbound does a great job of explaining the evolution — or better, the progressive convolution — of copyright, what’s become fundamentally different in our own time, and why any model based on our old conceptions of it are utterly doomed in anything less than a world police-state. It’s only fair to point out that Fleischer is part of the Swedish anti-copyright group Piratbyran, founders of the notorious file-sharing site Pirate Bay, so some could read this essay as simply justification for their own “questionable” activity. But Fleischer clearly lays out some real issues here, and there are many good examples of how the meaning of copying and sharing have transcended — and will only move farther from — the old models and enforcement. One of the most mind-boggling is this:

One early darknet [the term for the idea that people who have information and want to exchange it with each other will do just that, forming spontaneous networks which may be large or small, online or offline] has been termed the “sneakernet”: walking by foot to your friend carrying video cassettes or floppy discs. Nor is the sneakernet purely a technology of the past. The capacity of portable storage devices is increasing exponentially, much faster than Internet bandwidth, according to a principle known as “Kryder’s Law.”  The information in our pockets yesterday was measured in megabytes, today in gigabytes, tomorrow in terabytes and in a few years probably in petabytes (an incredible amount of data). Within 10-15 years a cheap pocket-size media player will probably be able to store all recorded music that has ever been released “” ready for direct copying to another person’s device.

In other words: The sneakernet will come back if needed. “I believe this is a “˜wild card’ that most people in the music industry are not seeing at all,” writes Swedish filesharing researcher Daniel Johansson. “When music fans can say, “˜I have all the music from 1950-2010, do you want a copy?’ “” what kind of business models will be viable in such a reality?”

I’d urge everyone to read the full essay, since this stuff will directly affect all our work, our entire career.

57 Responses to “Not Your Grandfather’s Copyright”
  1. Rob Deemer says:

    On a similar tangent…Larry Lessig’s talk at TED:


  2. This is a great essay, making a lot of very important and smart points. The paragraph you quote isn’t something that had occurred to me, but it’s obviously a critical issue. Some thoughts:

    The upshot of all of these technological advances will be the gradual erosion of the functionality of selling individual licenses to individual works to the public. (Corporations will probably always have to get licenses for commercial use.) Part of what’s happening in the public marketplaces is that illegal filesharing technology has created an abundance of illegal music against a financially-regulated scarcity of legal music, and as a result people have become accustomed to “owning” much larger libraries than they used to. Although the industry never admits it, theft of song files is a very different class of theft from shoplifting a CD from a record store, and the users of P2P networks know it. If I steal a CD from a store I’m stealing a distinct unit of product which cost money to make and ship and display, and which would have been sold to somebody else if I hadn’t stolen it. Physical retail is zero-sum, i.e. a piece of product can only be sold to one person, so theft deprives the seller of the opportunity to sell it and thus damages them financially. Filesharing only damages a seller financially if the buyer would have paid for the file if it hadn’t been available illegally for free. I would suggest that a majority of the illegal filesharing doesn’t actually damage the copyright holder financially (although some clearly does). What happens is individuals have a maximum amount of money they’re willing to spend on music, but they want to own more music than that money will buy at current market prices. Additional songs beyond that financial cutoff don’t hurt the copyright holder because the consumer wouldn’t have paid money for them anyway. What this means is that the value of a digital file is much less than the market price–consumers are paying X dollars per year and acquiring Y songs, so the economic value of the song is X/Y. What Fleischer proves here is that the indstry is failing and will continue to fail to curb the demand side (i.e. drive down Y).

    The other problem is that the current model charges a fixed rate for access to a given work regardless of the amount of use. The CD costs $15 whether I listen to it once or a thousand times. If I listen to 100 hours of music, I pay more for that 100 hours if I listen to a wider selection than if I listen to a narrower selection. Furthermore, copyright holders get paid based on this model. Take two songs that each get 1 Million plays over some period. The first song is sold to 100,000 people who listen to it 10 times each. The second is sold to 10,000 people who listen to it 100 times each. The first track gets ten times as many sales as the second (and presumably rakes in an order of magnitude more money) even though the second track got the same amount of use.

    The most obvious solution to both of these problems is to give up on selling individual licenses to specific works and instead charge for access to the whole catalog and divide the revenues among the copyright holders based on useage.

  3. There’s not going to be any licensing $$$ because there won’t be any subscription model that works. If everything ‘can’ be free it ‘will’ be free.

    Live concerts will be the only way musicians make money – that and licensing to major media (TV, Radio, etc). But individual licenses will never work again with broadband and digitized content.

    Watch them try and tax broadband. I still remember the Home Taping tax we paid in the 80′s.

    BTW, there’s some blogging going round about ASCAP asking for $$$ for links to MP3′s that you don’t host. They tried that with us 2006.

  4. Jeff–
    When you say “there won’t be any subscription model that works” are you responding to my proposal that fees be charged for access to the entire music catalog rather than for individual licenses? If so, why won’t it work?

    If your argument is that some people will pay the subscription fee and then give away their copies of the catalog, I think you’re right that there’s some danger of that, but that if the pricing structure for the subscription is perceived as fair most people will be willing to pay. A big part of the problem with filesharing today is that the pricing of legal music doesn’t seem fair.

    Also, I would seriously consider handling the subscription model with taxation. There’s a big difference between taxing on-demand access to the entire catalog of music and taxing possible taping of whatever happens to be broadast on your hundred TV channels.

  5. Yup, that’s what I was getting at. People will snag streams, dl mp3′s and give them away. I don’t think that people are that interested in legal or illegal. They’re looking for ease of access. They want it now.

    I think it’s likely that, as you suggest, they’ll just end up taxing/licensing broadband users. They’ll probably call it a value-add. Now Comcast provides all users with free access to the iTunes library for FREE! :)

    You just won’t see the surcharge.

  6. Chris Becker says:

    Maybe I’m strange but I just don’t spend time on the net looking for free stuff like complete movies or entire CDs. And the few times I’ve been given software for instance from a site like Pirate Bay – the stuff never works. And anyway, I don’t feel I am entitled to something simply because its available for no cost.

    We talk about “ease of access” and wanting things “now” but it seems like file sharing has its own set of hassles that some of us (well, me anyway…) would just as soon avoid.

    This of course doesn’t change reality. But I don’t consider Pirate Bay to be any sort of advocate for me and my dreams.

    I’m not arguing with anyone here – I think Galen and Jeff’s points are good ones.

    I guess I wish the revolution had started with health coverage, you know? Not unlimited pornography…

  7. Tell me about. Cuz I’m unemployed now we had to get it on our own and it was a horrible experience! Nurse visit, worrying… Would have been much easier to fire up Soulseek and type in Health Care – ‘Da Coverage’. ;)

    Thing is, for new music, some P2P’s are really almost indispensable. Live recordings or off the radio recordings. Call it asynch radio if you want. And I’m always running an audio snagging software when I listen to web radio.

    What we do or don’t do really doesn’t matter. It’s what the Baudrillardian mass does that concerns big business and will drive this matter. I know they want big subscriptions, like Naxos does to work. I just doubt people will bother when. It’s my impression, and my experience, that most people don’t run P2P software that much anymore. They just fire it up and access it when say, someone’s over and says, ‘Hey have you heard the new blah by blah’. There’s some paranoia, I suspect.

  8. Jeff is right about what the ‘masses’ do — and based on the mass psychology of the pseudo-free, the unit sale model is cooked. Everything invisible is pseudo-free (that is, a subscription that becomes a kind of forgotten auto-debit): cell phone calls, online access, Wikipedia, email, cable or satellite television, Netflix, online media and, of course, music. What non-physical items are paid for by the unit today? Electricity and airfare come to mind. But individual sales seem simply rooted in the era of objects, and objects are receding now to more basic elements: food, clothing, housing, personal vehicles.


  9. Chris Becker says:

    Right – ‘Da Coverage’ – can you imagine? This technology certainly can and (note: I’m out of my depth here) is helping hospitals share patient and other information with more ease, right? Which means we’re all going to live to be 150 I guess…

    I think this stuff is still shaking itself out. I mean, I keep buying vinyl and have turned people back onto vinyl now that it’s sort of becoming hip again, and NOBODY predicted this. The current vinyl market (small but much larger than it was a few years ago) just sort of bubbled out of the contemporary music scene. Part of this is the result of turntables that double as USB devices so you can load your vinyl easier onto the computer. Weird :) !

    I went to a party awhile back where all they had for music was a laptop and an iPod for music – Jesus! I’m sorry – call me a ludite or whatever but you have GOT to be kidding me. Hey! Listen to my latest iPod mix! Zzzz.

  10. The subscription model only works as a replacement when it’s really robust, gives people what they want, and makes it easier to get what you want by paying a reasonable fee than going the free illegal route. Current subscription models generally have some or all of these problems, and more:
    1. limited catalog. Not everything is available in every library.
    2. Copy protection/DRM on downloads
    3. two-tiered system of rental with an option to buy (i.e. partial reliance on the old model of licensing per track)

    The only way for the subscription model to work is for it to be easier to get almost everything through a single subscription source. That means you actually need to have laws which allow things like illegal bootleg recordings to be sold legally through the service so that there’s no need for a black market. It’s actually better for the artists that way anyway–the main reason bootlegs are illegal is to prevent bootleggers from profiting from the artist’s work, but if the most convenient way to access bootlegs is throught the subscriptions service the service can actually pay royalties to the artists even for unauthorized recordings. Same for derivative works like mashups. You just establish statutory payout rates to artists and the artist gets paid for the studio recording, the bootleg, the mashup, whatever. Bootlegging and mashups get moved into legal territory, access to them is easier for the consumer, and the artist gets paid. Plus, the spirit of copyright is maintained–the point of copyright, after all, is to incentivise creativity by providing a mechanism for consumers to pay the artists. Under my model, the artists get paid, AND the public has an easier time creating derivative works.

    In terms of the psychology at work, I think a majority of people will do the legal thing if it seems fair, and most will do the legal thing if it seems both fair and more convenient than the alternatives. Yes, there will always be a black market for people who want to dodge the subscription fee, but with most people obeying the laws it will be easier to catch the lawbreakers, which will set up added deterrance for people who want to break the law but don’t want to risk getting caught.

  11. The legal argument you make, Galen, is what a lot of industry people believe, but frankly, I don’t see it. I think the word ‘legal’ is meaningless to most people. It doesn’t mean, I won’t get thrown in jail or I won’t suffer. With downloading it means, I might be hassled or if I’m really unlucky I might get sued.

    Without enforcement, with only civil suits, legal is a threat without real teeth. Take for example, I see this everyday when I walk on the beach, dogs. You’re required by law to leash your dogs when walking them on the beach (and clean up their shit, but whatever). Practically every resident I see does not do this. Practically every vacationer I see does. The residents know the risk. The vacationer doesn’t.

    Legal in this case is meaningless. It’s what is the risk of being self-indulgent? If it’s having the cop on the dune buggy give you a tongue-wagging than whatever…

    I don’t think people really care or else they don’t want to understand cuz it’s complicated! They don’t really think they’re hurting artists. They might understand they’re hurting the middle man but screw them! :) And not that many people and rationalize rationalize blah blah… It’s going to get easier and easier to get stuff.

    Like TV. Have you guys noticed how you can watch practically any movie pirated now through China? I was watching the new Indie movie – a handheld crap recording – streamed over the web. One button click. I suspect music will go the same way. Don’t bother downloading. Just click on the link that came up after the search and listen. Then click to record. Less sharing – just a stream that gets snagged.

  12. Galen, the only place I disagree is the legal-vs.-illegal. This is foggy to the aware, and entirely opaque to anyone outside the music field. I have frequent contact with the generation younger than me through my stepkids, none of whom have the slightest idea about how music is made nor that it is even unethical, much less illegal, to ‘share’ (i.e., copy) it for friends. They download and don’t worry about getting caught because there isn’t even a notion that it’s disapproved of and there’s anything to get caught for … they were freely sharing in the cassette and CD-R days. They don’t hear about the file-sharing prosecutions, and seem surprised if I even mention the negative side of their actions. There is no conscience because there is no consciousness. Sharing is totally built into the behavior.


  13. Interestingly, I don’t disagree with either of your points, Dennis and Jeff, I just think they apply differenrly under the model I’m proposing.

    Certainly people break the law all the time, but the cases where majorities of populations break the law are the cases where they don’t believe the law makes sense _and_ don’t think they’ll get caught. For example, lots of stores around new york have fruit stands or flower stands outside the store. It would be very easy to steal from them, but apparently it’s not all that common, or they wouldn’t have those stands. I think the reason is that most people think the fair thing to do is to pay for the goods. The law against shoplifting actually only has any force because most people are inclined to obey it, so the exceptions are few and thus easier to catch. The driving force here, though, is the perception of the fairness of the system.

    The current system feels unfair, for the reasons I’ve listed. The industry tries to change people’s ideas about what’s fair, but they do it with transparently dishonest arguments (downloading a song is not actually morally equivalent to shoplifiting, as I’ve mentioned). There’s also an overriding sense that the record labels are in the business of screwing both the artists and the customers, so ripping them off doesn’t feel so bad. My system, however, offers fair pricing and sets up a situation where the artists get paid in direct proportion to how much their music is used.

    It’s true that “sharing” isn’t seen as wrong, and for good reason–a lot of the time the person who is given the files by the friend wouldn’t have gone out an acquired them legally, so there’s no financial damage to the artist. And even in cases where the person would have gone out and bought the CD, it’s easy to make a post hoc rationalization that they wouldn’t have. But if the fees you pay are for access to the whole catalog, those rationalizations go away. There’s also no marginal cost for acquisition of additional CDs. The fact that a lot of people illegally download tv shows and movies but also pay for cable rather than buying an illegal cable box is, I think, evidence that people think differently about the two kinds of systems. It’s harder to rationalize stealing a service than to rationalize copying files that you might not have been willing to buy if the illegal copies hadn’t been available. Under the subscription model, sharing of files between subscribers would actually be legal.

  14. Galen,

    I think we diverge where you give flower and fruit stands as examples: “I think the reason is that most people think the fair thing to do is to pay for the goods.”

    For a whole generation now, recorded music is simply not among the “goods”. I think that’s the essential change that makes neither your model nor any other functional. The definition has shifted. Music = air = free. Perhaps music can be re-marketed as a different kind of good, like bottled water. Water = free was true until very recent times, when it was metered in cities (your model, in a way) and value was assigned. Now a whole industry is built on wrapping water in plastic. For me, here with a pipe that just sticks into the ground a draws up crystal clear liquid, paying for a bottle of water is absurd (unless it has liquor in it).

    So how does your model provide value? The whole catalog you talk about is already out there. Once they’ve seen Paree, etc., how do you bring em back to the farm?


  15. david toub says:

    Subscriptions are less than ideal because people, I think, generally want to own their music. Once the subscription lapses, all your (subscribed) Feldman, Partch, Bach, etc. is gone. That’s like subscribing to a magazine, only to have it auto-destruct if you no longer pay your annual subscription. True, unlike a magazine subscription, one has access to a large set of music downloads under the subscription model. And for those who prefer that, then options currently exist. I prefer to own.

    Music = air = free: that’s a great way to think of it. The entire IP model for music is idiocy. Why is it that I can loan a CD to anyone, or even give it to a friend, yet doing that for audio files is a problem? The only reason I can think of is that if I give away one CD, that’s a marginal opportunity cost for the recording company (in the form of lost revenue from one CD, assuming that recipient would have otherwise purchased it). If I send an audio file to someone and that person mass distributes it by the thousands, that’s a ton of $ lost for the companies.

    I sympathize. Just kidding—actually I don’t. From the user’s perspective, there is no difference in giving away an audio file from giving away a CD. And while the big recording companies complain all about piracy, Radiohead and perhaps NIN ”get“ the new paradigm—giving away music is all about controlling market share. How did a crappy browser like IE 1 and 2 eventually kill off Netscape Navigator (besides the usual monopolistic practices by a certain illegal monopolist on the West Coast)? It was given away for free. Why am I more likely to buy a future or past album by Radiohead? Because they afforded me an opportunity to listen and own their music without risk, in its full version.

    We’ve hashed this beast out over and over in the past without getting anywhere, and I don’t know that this is going to be any different. But by giving away/marking down their music and taking the middlemen totally out of the supply chain, Radiohead actually made money on their ”pay as you wish“ album. That was a brilliant strategy, and I think artists following the old paradigm are doomed to forever spend their precious time complaining about piracy, when they don’t get that you can’t pirate what really should be freely, or cheaply, distributed. And let’s not forget who profits far more than any artists from the current paradigm: the big recording companies. The small, independent companies that actually take a chance on new and unproven music aren’t raking in the cash, and they’re also often much more equitable towards composers and performers. In other words, the big companies are much more about driving revenue, the smaller independent labels tend to be more about the music and about enriching our musical existences.

    OK, feel free to pile on about how terrible downloading music from P2P is and how it’s ruining our American way of life…

  16. Bill says:

    Unfortunately it’s corporate greed that’s led to this. $15-20 for a CD, how much of that does the artist actually see? So unit sales will prevail, but for a fair price. No more supporting the lifestyles of LA lawyers…

  17. David,

    We may have hashed this over in the past, but I *do* think we’re getting somewhere. We are for the most part unaffected by the change of marketing and sales — because we didn’t have much to speak of anyway. As far as I can recall, composers used their CDs as calling cards. The dramatic uptick in recordings by Eastern European ensembles ten years ago was evidence of that.

    In some ways, what we have been doing is already the future of distribution. Composers (some of them) jumped online early with samples and later full pieces, others (like me) actually provide downloadable scores and parts (though paper copies can still be purchased). Some 12 years ago, Laurie Spiegel and I already tossed around the issues that we saw coming up, back in the days when the au courant term was “value-added” goods and services.

    Though I share Bill’s opinion on greed, that’s only part of it, as labels once did serve as a giant capitalist test bed for popular tastes (meeting and molding) and lost money on the bulk of the musicians they sponsored. The whole classical realm was supported in the majors by pop, and later in the off-labels by grants and vanity payments. So I’m neutral as to whether the recording industry has been hoisted, etc. They just haven’t reacted well since.

    So does sharing really affect anyone here negatively? Or has it improved your life as a composer (it has mine)?


  18. Chris Becker says:

    When we talk about “greed” we shouldn’t we also consider people hoarding thousands of mp3s or video files they did not pay for? Is this behavior a form of “greed”?

    And as far as the water metaphor goes…many people on this planet do not have water or electricity. We are speaking about these issues from a position of privilege. And maybe – like water – we shouldn’t take contemporary artists for granted?

    Okay – getting off the high horse…

    Dennis. File Sharing has not benefited me at all. But as a producer and composer, I am looking at the current landscape and trying to deal with it creatively. Instead of suggesting to the artists I work with that we post all of our hard work for free downloads and suck it up in what they might make performing live (which – like mp3 or CD sales – for emerging independent artists can’t provide a living wage), I am looking at new models in action (which includes considering Galen’s posts) be it subscription services, Trent Reznor and Saul Williams’ recent project, Radiohead, etc etc for some kind of direction. I think it’s crucial for artists to stay flexible, but to advocate for themselves in this climate.

    I also believe a lot of this stuff is shaking itself out. I am (have been) making some changes as far as what I’m focusing on as a composer/producer – and this issue of file sharing has directly impacted some of my decision making.

    I’m speaking as someone on the ground looking to the future. My 2 cents. We all should talk again in two years :)

  19. Chris, you didn’t mention if you had a negative impact from sharing music files.

    You also asked: “shouldn’t we also consider people hoarding thousands of mp3s or video files they did not pay for? Is this behavior a form of “greed”?”

    No, because they have no traditional value now. Value is no longer replicable in the past sense. I ‘hoard’ seashells from places I’ve been, plucking a few among millions. I breathe in and out, relentlessly stealing that air from within every home or store. Both those are physical. The music is not.

    Below is a story that is often retold, and appears in various forms in novels and short stories; this is an online retelling at braingle.com.

    I am not defending sharing music (I don’t even have the time to bother for myself, and I bought that “In Rainbows” download just to sort of raise my hand in assent), but I’m not too far over the hill to realize that no red-faced Clintonian finger-shaking is going to make one smidgen of difference. It is reality for the foreseeable future.



    A beggar was given a piece of bread, but nothing to put on it. Hoping to get something to go with his bread, he went to a nearby inn and asked for a handout. The innkeeper turned him away with nothing, but the beggar sneaked around to the kitchen window where he saw a large pot of soup cooking over the fire. He held his piece of bread through the window and over the steaming pot, hoping to thus capture a bit of flavor from the good-smelling vapor.

    Suddenly the innkeeper seized him by the arm and accused him of stealing soup.

    “I took no soup,” said the beggar. “I was only smelling the vapor.”

    “Then you must pay for the smell,” answered the innkeeper.

    The poor beggar had no money, so the angry innkeeper called for the magistrate.

    Now at that time an elder knight named Chistpin was serving as magistrate, as most able bodied men were with the Baron in the Holy Land on yet another crusade, and came over and heard the innkeeper’s complaint and the beggar’s explanation.

    “So you demand payment for the smell of your soup?” summarized Chistpin after listening to both men.

    “Yes my lord!” insisted the innkeeper. “My soup is good and it is costly to make, so the rich smells must also be costly and have a value too.”

    “Payment for the smell? Indeed all things have value, but what would be a fair value for just the smell of a pot of soup? That is the problem here.”

    Just then something behind him caught Sir Chistpin’s attention as a customer paid for his ale and was leaving. “Ah, yes. Yes indeed, there is a fair payment for just the smell of your soup”.

    How could there be a fair value for just the smell of cooking soup?

    The elder knight looked at both the beggar and the innkeeper, and then back to where the sound of a coin, tossed on a table as a customer paid for his ale and left, had caught his attention.

    “Innkeeper, I, Sir Chistpin, acting magistrate of Lincolnshire, have found a just and fair payment for the smell of your soup, and I will pay it to you myself,” said Chistpin. Taking two large gold coins from a small leather pouch, the Innkeeper’s eye sparkled, and Chistpin said, “I will pay for the rich smell of your costly soup with the rich sound of money.” Thus Sir Chistpin rang the two coins together loudly, and then he put them back into his pouch; with the price of justice paid, sent the beggar on his own way and left the innkeeper to his own means.

  20. Quick clarification: The subscription model I’m proposing wouldn’t be a model where you lose access to the music you’ve downloaded if your subscription lapses–I agree that the fact that people want to own recordings would make such a model unfeasable. The obvious challenge with allowing downloads from the service with no DRM, of course, is the danger that people would subscribe for a month, download a bazillion songs, and then unsubscribe, relying on shares from friends to get any new music that they don’t already have. That’s a real problem, and the solution isn’t obvious. Certainly simply making the subscription fees reasonable would keep a lot of people subscribed, but that’s probably not good enough. Building subscription fees into internet access fees would probably work better, but you’d have to be okay with people who don’t get internet access being given recordings by their friends. I think I’m relatively okay with that–my objective is to bring the majority of music use into legality for the sake of fairly compensating artists, and I’m okay with the idea that people who can’t afford internet access should have access to culture for free. Remember granting ownership rights to artists is a means to the end of ensuring compensation for creative work, not an end in itself. It’s better for society if people who can’t afford to buy culture can get it for free, and by the time any model like the one I’m proposing could be put into place basically everybody will have internet access unless they can’t afford it. Alternatively, the government could simply pay royalties out of income tax revenue, but I don’t see that happening politically.

  21. Chris Becker says:

    “Chris, you didn’t mention if you had a negative impact from sharing music files.”

    I’ve seen the culture of file sharing negatively impact the lives of the musicians I work with – most of whom are in what you might call the “indie” rock scene. But for the negatives, there are positives too – and noone I know is blind one over the other.

    The “smell of soup” story confuses me. How do you “smell” music?

    “You also asked: “shouldn’t we also consider people hoarding thousands of mp3s or video files they did not pay for? Is this behavior a form of “greed”?”

    “No, because they have no traditional value now. Value is no longer replicable in the past sense.”

    I personally don’t agree with this – the train of thought or your conclusion.

    And you’re leaving out vinyl.

    “I am not defending sharing music (I don’t even have the time to bother for myself, and I bought that “In Rainbows” download just to sort of raise my hand in assent), but I’m not too far over the hill to realize that no red-faced Clintonian finger-shaking is going to make one smidgen of difference. It is reality for the foreseeable future.”

    I don’t disagree. However, I also don’t think we’ve come to the end of what is and isn’t going to be possible for recording artists as a means of income. It’s already changed drastically in the past few years with licensing for film and TV taking off. Why not leave some things open for discussion? I don’t think anyone here has every detail and the future figured out. What’s the problem with acknowledging that?

    I am not red faced – and I did not vote for Hilary :)

  22. The industry is red-faced, not you. Sorry if I wasn’t clear!

    As for the soup story: the music is, as I believe you pointed out, a live experience. The virtual bit-encoded experience is the smell. The music (event) was (is) the soup. For a century the soup was also the object (recording). That part is over — and yes, I exclude vinyl because it is not by and large meaningful now.

    One thing you’ve said that the industry also says is that there is a negative impact. That impact has not been quantified very well. A drop in CD sales, yes. Would that drop have occurred if the industry had been awake and found a viable method for monetizing their virtual products? Yes, of course. They would have encouraged it, because it’s fewer objects and still a good return. So your colleagues — were they able to quantify sales likely lost, especially vs. live attention because of virtual distribution? These are the elusive numbers.

    But all of the above leads us around in a circle again.

    From my point of view, we start over. We *begin* with the premise that recorded music is worthless, has zero value, is like air. Starting over that way, discarding the entire question of intellectual “property”, how does one monetize the music? What makes bottled water valuable? Why do people use air fresheners or deodorant, or buy a box of baking soda to open, put in their refrigerator, and then throw away?

    Unlike you, I’m not trying to look too far into the future. I don’t have that much of a future ahead of me. So tracking back to the present, I see effectively no change in the value of recorded music … it was merely locked into the object. Take away the object and the music reverts to its value — zero.

    So if you take the distasteful step of saying, “what I do has no value” (which is not the same as saying it has no meaning or significance!), how to you engage in the process of infusing it with value? This is a task we as composers have *not* taken on, at least in my fifty-nine years.


  23. paul bailey says:

    i think we are talking about two different markets that are defined by scarcity. mainstream rock and pop recordings currently have little or no value because of the many places where you can easily download it.

    doesn’t the non-mainstream music still have a market because is not that easy to find for free online? is this going to change anytime soon? i think subscription sites like emusic are looking more promising everyday.

    for now i’m experimenting with giving away all new releases and selling my back catalog and i’m selling more of my music from summerland cd than when it first came out (i’m letting the long tail work for me). i know groups that are making any money rely on live performance and selling merchandise.

  24. Dennis– What definition of “value” are you using?

  25. Galen,

    I use “value” in only economic terms; I use words like “significance” or “meaning” for non-economic qualities. We’ve become so accustomed to interchanging “valuable” and “important” that it has a corrosive effect on how we feel about what is meaningful to us. The word “values” has crept into the vocabulary as a synonym for ethics, principles, morals, etc. I do my best to use value-based terms only for money, and not mix economics and humanities.


  26. The fact that you ‘can’ get the music you want for free determines its economic value. The fact that it’s problematic, quasi-illegal doesn’t influence this pricing mechanism.

    If gold were selling for $1000 an ounce somewhere and you could get as much as you wanted for free down the street, it’s cost would quickly fall. Because prices are fixed through licensing and middleman that process of prices falling is what I believe we’re seeing in the struggle to force subscription models upon us. It’s creating a deflationary environment for the market of music. Actually, deflation is everywhere, FWIW. And different markets are handling these stresses differently. (Inflation is money supply growth – not prices going up and we’ve yet to really see that. Credit growth yes, but not money supply growth. Gas prices go up not because of inflation but because of war, etc.). Too many houses, prices come down. Too many snogs and the price of your favorite snog comes down.

    The price for music now is zilch. That’s why music has no economic value, as Dennis says. A new model, well I believe as I’ve been saying, that there will be no new model. They can hardware encode it, watermark it, force you to stream it – all of these things have easy counter-measures and there is a huge community which will break every attempt at value enforcement.

  27. Chris Becker says:

    “The price for music now is zilch.”

    Except I’ve been paid for music I’ve created for ESPN. And my good friend was paid for a film score he created for an independent film. And I’ve circulated my music to a handful of music supervisors who license out music for film and TV.

    If we’re going to talk in economic terms, the price for music is there. It’s up to artists to understand that HBO, ESPN or whoever can’t download their music and use it to underscore a car race or whatever without compensating the person who created it. This mysterious “huge community” of P2Pers aren’t the people hired to find music to accompany images.

    Am I making an obvious point? I think I understand what Dennis and Jeff are saying – I don’t want to sound like I’m negating what they wrote. I find this conversation very interesting (God help me…) But as Paul pointed out, we are talking about different markets and a blanket statement like “the price for music now is zilch” isn’t accurate.

    Although I’d agree with “the price of music now is down” :) and don’t markets rebound?

  28. One of the first things I said in this thread was that licensing to commercial networks was the only licensing scheme that would pay. Also, if I give my music away to downloaders that does not explicitly mean that I give licensing rights to any and every commercial interest. No ad agency or tv network is going to risk being sued when the cost is so small to just get the composer a license. Downloading for free doesn’t mean play my music with your Honda ad for free.

  29. Yes, Chris, I agree with Jeff here (OMG, what’s happening to me??).

    B2B circumstances are always different from retail, but the effect will still ripple back eventually. HBO and ESPN license your music. Everybody downloads their content and distributes it for declining prices or for free, and ultimately you receive fewer and fewer opportunities.

    Case in point: Hockey Night in Canada. Google the dispute right now, as the CBC is holding a contest to pay a single one-time prize instead of the constant rights fees to use the existing theme (which as of yesterday they actually might have bought out, but I’m not sure).


  30. I should mention that this has been happening for a while to authors. I’ve written some 600 magazine articles since the late 1970s, and within a year of the web growing popular, the only work I could get was ‘for hire’ — no royalties for future use, and full transfer of copyright to the publisher. No ‘for hire’, no publication. (At least I still get a byline.)


  31. Regarding authors – it’s a nightmare out there. We’re trying to get Elsie’s novel about an experimental composer getting swept up into the high life published and nobody is looking for first novels. Not only that, the self-publishing route is under attack by Amazon who now require any ‘Print on Demand’ books be printed by them or else they won’t carry a ‘Buy’ button in their listing. We don’t know what to do and the book’s been finished for over a year now.

    The thing about the Amazon printing on demand system is that it’s the absolute worst. Reports of crap bindings, pages that don’t open, and misprinting abound.

  32. Amazon claims to want a fast model (which is reasonable), but one’s own POD system can be a careful choice. I know two small music publishers who are using Lulu.com because it provides the kind of presentation, paper, etc., they want, and they can still sell via Amazon.

    But here is in Amazon’s policy, and I wonder if it’s just presented as a starting barrier to books that will likely sell so poorly they don’t want to handle the sales anyway: “Alternatively, you can use a different POD service provider for all your units. In that case, we ask that you pre-produce a small number of copies of each title (typically five copies), and send those to us in advance … We will inventory those copies. That small cache of inventory allows us to provide the same rapid fulfillment capability to our customers that we would have if we were printing the titles ourselves on POD printing machines located inside our fulfillment centers. Unlike POD, this alternative is not completely ‘inventoryless.’ However, as a practical matter, five copies is a small enough quantity that it is economically close to an inventoryless model.”

    Does that mean that after five copies, they’ll deal with getting the POD books in groups from the POD publisher? Dunno. Not clear.

    Since my wife and I are about to embark on a series of small books, Amazon will be the only way to get decent distribution. We’ll see.


  33. What are you guys going to do for your self-publishing? We’re considering Lulu.

  34. Yes, we’re also considering Lulu. They look very good, and I’ve bought one music book (on soundscapes) that was done there. It was excellent, and felt entirely like a regular book.

    Interesting that this discussion is also taking in the print world which, though available in digital form, is much less usable that way (at least for somebody like me, who has books tossed in every corner, in the car, in the barn…)


  35. Here’s the book I bought, a Lulu.com book, still listed by Amazon:

    Creare Paesaggi Sonori by Luigi Agostini


  36. Steve Layton says:

    The Amazon small-run CD thing I think has been around like that a while. It’s kind of like the way CD Baby works; you send them 5, they scan the art make the clips, etc… When you’ve sold most, you get a notice to send them another small batch (unless it’s really flying out of there, so requiring a bigger batch.

  37. paul bailey says:

    because i commute by train and bus i’m really looking forward to the kindle 2.0 (or something like it), digital ink is still pretty early, but i find i just have too many piles of ‘stuff (print media) lying around to be read. along these lines has anybody seen that amazon will sell you a digital copy of books you already own for pretty cheap ($7-8). i found this buying textbooks for my wife, an $80 textbook was an $8 download.

    also the self-publishing music market has grown quite a bit. i just got this list from emusic of companies that they have deals with.


    despite all of the doom and gloom i think self-publishing music (through downloads) is almost there. the financial back-end (shopping cart..) is getting cheaper all the time. the main hang-up is an open source solution to connecting the shopping cart to the server (for the downloads). trent reznor says in the NYtimes he is going to release the code he had written to handle his ghosts downloads http://tiny.cc/B7Bcm. once this happens (thru reznor or any codemonkey) all you need is a server space to run the program like a custom wordpress blog and we can cut out all the middlemen.

  38. I wouldn’t characterize it as doom and gloom, fwiw. I mean, we all have to take a look at what we’re trying to gain through this exchange. Nobody is going to get rich selling downloads of art music. I don’t even think there’s significant money – like quit yer job money – from sales of anything new music related. Well maybe you own brand of sex toys, but I digress.

    What I’m trying to get – and this has been my strategy since the early 90′s – is exposure. I want people to know about my music and listen to it. When I have to make a decision about hmmm… make $800 or have 100 times more people hear my tunes… I’m going to say screw the $800 (and I’m being generous). Right now I have over 2 GB a day average of downloads (of course the high percentage are described by some people as ‘junk downloads’ because they’re from Chinese and Russians – but I don’t buy that – anyways). When I release a new song I get immediately several hundred downloads of it.

    What more could any musician want?

    What bugs me – if anybody’s listening – is how radio, the music critics, and the press in general don’t take downloads seriously. This prevents me from building an extra-academia career – which has been my goal as a non-academic non-performer my whole life. The network doesn’t get heated up, because there’s no follow-through after a great new song. There’s a few emails, but mainly from dudes I already know. So, it’s hard to create the appearance that something is happening.

    For me, that’s the rub about downloads. There is NO money – what I want is to get played and written up in the real radio and print media. And they just ignore me frankly. Lucky for me, some radio guys, like Kyle, do take downloads seriously. But am I ever going to get played on late night QXR until I print a CD? Am I ever going to get in the NYTimes for a new download release. No way. That’s what sux!

    paul, there has to be more code to handle the pay for download problem. It’s a trivial programming problem.

  39. Just did a quick search for the sell you downloads script – there’s a ton of them out there. Here’s one.


  40. paul bailey says:


    thanks! i love the power of the interwebs!

  41. david toub says:

    What bugs me – if anybody’s listening – is how radio, the music critics, and the press in general don’t take downloads seriously.

    Agreed. Even worse—some folks don’t take virtual instrument-generated audio files seriously at all. They mischaracterize them all as MIDI files. That’s not exactly true. Yes, these things involve MIDI-based data. But there’s a load of difference between a Garritan Personal Instruments-generated sound file (or a Reason-generated audio file, for that matter) and a raw MIDI file that contains only instructions in the form of code.

    I’m quite content to give my stuff away for free. I have no interest in earning anything for my music, and that’s my personal choice. It won’t work that way for many others, and I respect that. But at the same time, those of us who do give our crap away online need to be taken seriously. I would much rather have folks listening to my music, even when performed by virtual instruments, than write it and have no one hearing it.

    That said, I’ve been disappointed by occasional folks who have nothing but disdain for anything but live performers. Don’t get me wrong—there are some pretty crappy sampled performances out there. But one shouldn’t generalize.

  42. MIDI-originated (sampled, virtual instrument) audio files are taken seriously, depending on which ‘folks’ you’re talking about. Much excellent film and television music is sample-sourced.

    I think we all know what you’re getting at, but that’s a consequence of the view of music as a live experience. Culturally and artistically we have not bridged the real-virtual gap. Part of it is fear — the virtual that now exceeds the real in technical ability will soon exceed the real in expressiveness and even interpretation. Part of it is desire — many of us composers feel that our music is not significant until it is performed by real musicians in a real concert. Part of it is lack of imagination — that we as artists have not developed a viable experiential model for the virtual in the presence of the live, and vice versa. Part of it is snobbery — that the virtual must be made by hack composers and losers. And part of it is credibility — if we as composers don’t believe in virtual versions as our definitive versions, who else will? (Steve Layton please jump in here!)

    We have not made a case for these virtual versions, at least collectively. Many composers (I could name names) do not take care that their virtual versions are actually well executed. Though the tools are there (even built-in now), the composers save their energy for rehearsals — or imagined rehearsals of performances that will never take place. So half-assed virtual versions litter the internet, and the sheer dominance of these shoddy versions online marks all virtual performances as crap.

    And why shouldn’t that be the case? For that matter, the majority of live performances online are crap — and I don’t just mean on YouTube. In my entire body of some 250 performed works (yeah, out of 970, so the proportion is still low), there is not one ideal performance (except for my electronic compositions), yet I make them all available for listening. Even considering the many well-performed real or well-executed virtual exceptions, the commercial CD seems to set a different standard of sonic and expressive quality. Because it still costs cash to produce, the commercial recording says about its creator, “I have *invested* in this.”

    (It takes us back to the meaning/significance vs. value/worth vocabulary and may explain why I am so careful to distinguish them.)

    If you want virtual versions respected, composers have to say (as many movie/tv composers do), “this is my definitive version.” If you want downloads respected, composers (including well-known and influential ones) have to say, “this is the only form in which you can get this music” — forcing the critics to make downloading their default behavior.


    (PS regarding comments: I often get messages rejected even through I have Javascript turned on for this site.)

  43. Steve Layton says:

    Hey Dennis, remember that some weirdness in the anti-spam stuff gives you a reject message, but only on comments that thake a long time to write before hitting “submit”. If you’ve written a long one, either A) select & copy your text before hitting submit, so if it hapens you just paste it back in and hit submit again; or make the comment on notepad & paste in the comment box when you’re ready to submit. A minor pain, I know, but the good the plug-in does far outweighs that one glitch.

    As far as MIDI performance goes, we’ve been down that road WAY too many times, and I don’t have to weigh in when you’ve so nicely laid it out. It’s like politics or religion: faith meeting rationalism is always like oil & water — you can shake the bottle all you want, but there’s no real change. I will say that I don’t apologize for a single note of my own composition’s realizations, and that though many could or might be played by other performers and ensembles, there can’t be any performance truer or closer to me as creator, performer and person.

  44. Steve,

    Thanks for the spam info. I knew it was there, but didn’t know the mechanism. Since there’s no ‘preview’ mode, I guess it times out.

    Thought you’d have some things to underscore about virtual performances.


  45. phil fried says:

    I think I have to put forth the idea of bread and circuses here. Free entertainment always comes with a price. (even if it is indirect).

    Phil Fried

  46. J.C. Combs says:

    “I think we are talking about two different markets that are defined by scarcity. mainstream rock and pop recordings currently have little or no value because of the many places where you can easily download it.

    doesn’t the non-mainstream music still have a market because is not that easy to find for free online?” Paul Baily

    I think what Paul mentioned there was a great point overlooked in this thread. It really depends what your perspective is. Do you already earn a good living? If yes, maybe you will decide to donate your works to charity through free downloads (or already have). Or maybe you want to stake your place among the “big” artists and have your works along side them with the thousands and thousands of other indie artists.

    Big name artists who make millions off of concert tours should give out their music for free. But if you think in terms of you and your art music, I hope you would “wish” to make the most money off of what you do best rather than flipping burgers at McQuarter Pounders, i.e., the Corporate BS System. That wish might never come true, but in my simple little opinion sending your art music for free DL is devalueing it, as in reality that brilliant art music wouldn’t be available otherwise (a clear distinction between free streaming which I am all for).

    I would expect to be disagreed with on this matter.


  47. James, my only disagreement is that I have enough barriers between me and those ears out there without putting a monetary barrier up too. I’ve got academic networks, being discounted because I don’t teach, being discounted because I release MIDI realizations, being discounted because I have tunes and beats in my music, being discounted because I don’t have a performance record like the superstars.

    I just want to get heard. I’d prefer making some money. I’m already discounted, why not give it away for free? :)

    FWIW, I’ve been told many many times by big names and small names that I’m hurting the new music scene by giving my music away. I’m creating a deflationary cycle which will inevitably cause irreparable harm to new music. My response is always the same. WHAT ELSE CAN I DO BUT GIVE IT AWAY? The new music world refuses to accept non-affiliated composers in any significant way.

    I would have nothing if I didn’t. I would have 0 performances a year instead of my regular 20-50 a year. What else can I do?

  48. J.C. Combs says:


    I have no issue with posting free DLs of sample music, which you intend on having performed (even if it is a whole work). The majority of your repertoire of music, that should be sold. If you consider a work to be of a high quality, then why not package it, stream it, and sell it via DLs. Or just sell it online.

    If someone wants the convenience of listening to your works on their iPod…, they should pay the 99 cents due or otherwise pay you a visit at your website everytime for free streaming. I don’t see how that would affect the amount of times your works are performed.

  49. James, the main thing is the way the web works. As a web programmer, you’re aware of how people click. When a performer comes to my site – maybe they got there from a google search – they see a name they’re unfamiliar with and you’ve got basically 30-60 seconds to get their attention.

    Having them go through the payment process impedes the ‘perusal’ process, IMO. Every recording I have by live performers that is high quality is also needed to play a role as a immediately listenable experience.

    I’ve tried most of these pay for DL services. I had BitPass for a while. Immediately, my downloads fell off the map for those MP3′s. And some of them may have been performers looking for new repertoire.

    The thing is, it’s all new country here and we’re all trying new things. All I know is that the number of performances I get are going up. Because of that I’m sticking with what I’m doing. If it hurts somebody else, too bad. Let them compete with me, like I have to compete with the academics. Like I said before, I need every advantage I can get my hands on.

    The other thing that people have told me is that my writing pieces for performers for $0 – free commissions – is also helping destroy the new music marketplace. But I’m not getting enough opportunities to turn down commissions or debate with the performers that I should get paid. I don’t know how many times I’ve been told that. And I always laugh… It’s not selfish, it’s competition. They’ve told me that giving away my PDF’s is hurting the new music marketplace too! FWIW, I heard Rzewski say at a pre-concert interview (with Kyle) last year that people should give away their scores online. Although he insisted adamantly that people should sell their recordings. He’s a good capitalist it seems. I’m not.

    These same people who have criticized me to my face about that and the downloads, are the same people who do not recommend me to their university groups, do not recommend me to orchestra music directors they know – because I’m not in the academic up and coming network.

    My outsider status forces me to do this. And I’ll repeat what I’ve said a zillion times… I’d rather have 10,000 listens a month and $0 then 800 listens a month and $20. And I’d rather have 30 performances a year and $0 then 3 and $600.00. It’s just economics for me and my understanding of how quickly web visitors click.