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The Mixtape Will Save Us All

Last month, during Lil Wayne’s set at the sold-out, hanging-from-the-rafters Gibson Amphitheatre in Los Angeles, three distinctly deafening paroxysms of noise punctured the general din. The first two were triggered by predictable moments: respective gremlin-croaked renditions of “A Milli” and “Lollipop,” the ubiquitous singles from Tha Carter III. But the third ululation came when Wayne asked the rapturous audience, “How many of y’all have my mixtapes?” The subsequent decibel-level spike was commensurate with an alpine avalanche or a Phish rendition of “Wolfman’s Brother” circa 1994.

Wayne has given away millions of copies of nearly a dozen different mixtapes in his short, surreal career—turns out that’s the only way to sell records these days. That a rabid fanbase weaned on hours and hours of free product snapped up nearly three million full-price copies of Tha Carter III anyway should trigger another loud, gleeful yawp—this one from a music industry in jubilant disbelief that they’ve finally found a possibly tenable business model for the Internet age. The formula is deceptively simple: Stoke hype via an elaborrate architecture of blogs, social-networking vortices, and torrent sites—a vastly cheaper star-making engine than the old model of bribing radio DJs, overpaying Jacknife Lee to produce, and footing the bill for six-figure music videos with a lifespan shorter than Kenny’s in a South Park episode. The days of an untested rapper’s full-length debut going platinum thanks to one hot single are dead (see: Mims, Jibbs, Shop Boyz). The only hope for industry salvation is to tap into a modern spin on the Grateful Dead model: Give away tons of bootleg products for free, ink 360 deals to tap into the resultant lucrative touring and merch markets, and pray that album sales eventually justify the fuss.

The mixtape’s lineage extends from early New York City pioneers like Ron G, Bruce B, and Kid Capri to later legends DJ Clue, Funkmaster Flex, and Tony Touch to 50 Cent, who released a legendary series of bootlegs at the turn of the century that laid the groundwork for 2003’s Get Rich or Die Tryin’, his multi-platinum Interscope debut. The crucial contrast between 50’s tapes and the pre-millennium model is the method of distribution: In a post-Napster world, fans no longer needed to trek to New York’s Canal Street, Los Angeles’s Melrose Boulevard, or all the hip-hop specialty shops scattered in between. In the ensuing years, a number of artists (most notably the Clipse, the Game, Wayne, M.I.A., and Danger Mouse) have used the medium to launch or re-launch their careers, a trend undoubtedly influenced by the decline of legit rap record sales. The tapes spawned a cottage industry, with everyone from mixtape DJs to mom-and-pop record shops caking off the heavily copyright-infringing material. Unsurprisingly, in January 2007, the Recording Industry Association of America, in conjunction with the Feds, raided the operations of Atlanta mixtape DJ du jour DJ Drama, who’d collaborated with Wayne on several of his most iconic tapes. Yet, instead of quelling the illicit trade, the RIAA inadvertently sparked the Golden Age of the Mixtape. With DJs wary to press and sell physical copies, dissemination moved almost exclusively to the Internet to sate the hungry hordes of downloaders, be they longtime fans or new converts.

2007 marked the first time a rap mixtape cracked the Pazz & Jop Top 40, with Wayne’s Da Drought 3 finishing at #35. But this past year marked the medium’s full bloom into a legitimate art form, with Nas’s The Nigger Tape, El-P’s Weareallgoingtoburninhellmegamixx2, and Wale’s The Mixtape About Nothing among the first to realize its true potential. In particular, the latter proved particularly revolutionary in its usage of Seinfeld clips to craft a work as coherent and complex as any album—with the D.C.-born rapper somehow re-appropriating dialogue from the sitcom’s infamous ménage à trois episode into “The Perfect Plan,” a trenchant analysis of the rap industry and its fickle fans. More importantly, the Interscope-signed Wale’s willingness to give it away gratis protected him from the long limbs of the RIAA and helped build steam for his forthcoming full-length debut, featuring production from Mark Ronson, Kanye West, and Justice. (Of course, he’s got a mixtape planned in the interim, the 9th Wonder collaboration, Back to the Feature.)

The ever-increasing relevance of mixtapes has even bled into other genres. When London club kingpins Fabric rejected a Justice-compiled dance mix in early 2008, the French blog-house duo decided to give it away for free on the Internet, as did Downtown Records pop star Santogold, whose critically lauded mash-tape, Top Ranking: A Diplo Dub, enlisted Diplo to lace classic dub cuts over vocals from her namesake debut. Perhaps the year’s most successful non-rap mixtape came from London-via-Malawi singer Esau Mwamwaya, who partnered with London/Paris producers Radioclit on The Very Best to croon gorgeous vocals in a smattering of African tongues over pop-oriented beats ranging from M.I.A.’s “Paper Planes” and Hans Zimmer’s True Romance theme to the El-P beat for Cannibal Ox’s “Life’s Ill.” The most fittingly bizarre swipe of the bunch was Vampire Weekend’s “Cape Cod Kwassa Kwassa,” with an African singer blissfully stealing from a crew of fresh-faced Columbia grads often accused of stealing from Africans, a peculiarly post-post-modern moment.

Ultimately, the largesse augurs well for consumers and artists both—the former getting free music, and the latter building their brand sans the necessary evils of industry promotion. Mixtapes have ascended to the status of cultural meme. Next time, Wayne won’t even have to ask who’s heard his mixtapes. A better question would be: Who hasn’t?

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Meet the Web Sheriff

Ed Droste, frontman for Brooklyn’s beloved Grizzly Bear, is an unlikely target in the battle against leaking new albums early. Nevertheless, when he recently found a new Animal Collective track floating around online and liked it enough to post it on his own band’s blog at Grizzly-Bear.net, he immediately came under fire from someone called the Web Sheriff, who cited the incident as “no laughing matter” in a series of e-mails and ordered the band to take down the as-yet-unreleased MP3. Droste complied, and was further ordered to leave a pre-written (by the Sheriff) apology up on his site for a week.

So here’s the newest soldier in the other Bush-era war with no end in sight: the arbitrary and unseemly battle over music piracy. What began with Metallica calling out Napster (and the Recording Industry Association of America suing a 12-year-old for illegal downloading) has now led here, to a London-based organization of “Internet policing specialists” whose website claims to combat everything from libel to pornography. But the Sheriff has become most notorious for unusual efforts to prevent album leaks, which, until recently, mostly involved leaving ominous comments on personal blogs.

John Giacobbi says he started Web Sheriff—now boasting a 20-member “core team” with two U.K. offices and plans to open a third stateside—as a means to “take care of online-rights management for artists, managers, and labels, entailing everything from managing album leaks and manufacturing watermarked CDs and DVDs, right through to building and managing websites and YouTube channels, and actually filming and editing content for them,” adding that the concept came about “through my long-standing representation of the Village People and the increasing amount of online issues that started to arise.” Feel free to read that again.

I’d had my own run-in with his company. In June, I scratched out a list of my favorite early 2008 albums for my blog, including Hold Steady’s Stay Positive, then rushed to iTunes several weeks before it hit stores due to early leaks. I didn’t post any MP3s or really write a review, but I still received this message in the comments section:

On behalf of Rough Trade, Beggars Digital and The Hold Steady, many thanks for plugging “Stay Positive” (street date 15th July) . . . thanks, also, on behalf of the label and the band for not posting any pirate links to unreleased (studio) material and, if you / your readers want good quality, non-pirated, preview tracks, “Sequestered in Memphis” is available for fans and bloggers to stream / link to on the band’s MySpace. . . . Thanks again for your plug.

Regards,

WEB SHERIFF

This is a new species of crackdown; the RIAA never reached out to people for not leaking an album. Searching for similar comments, I found them on sites ranging from the well-known (Gorilla vs. Bear) to the obscure (Harley Blues, Swan Fungus). Some recipients took offense. The proprietor of BerkeleyPlaceBlog.com (who only wanted to be identified as “Ekko”) likened the Web Sheriff to Big Brother in a post titled “Open Letter to a Watchdog,” wherein he announced he wouldn’t provide any further promotion for the Kills or add them to his “Best of 2008” list after the Web Sheriff left a message asking him to take down two live bootleg Kills tracks that he’d posted. He argued that the tracks removed were neither from an official album nor copyrighted content, but received no response. (Both the Kills and Hold Steady declined to comment for this story.)

“I’d say about 90 percent of what I review is submitted to me—many PR teams and indie labels submit to my site regularly,” Ekko told the Voice. “So that must be some indication that they believe the impact is positive.” The D.C.-based blogger considers the Web Sheriff to be “obnoxious,” and counterproductive to its clientele: “If you look at the raw data, you will see that record sales have not been hurt by MP3 blogs. Those artists who are most blogged about also sell the best. . . . The top 10 albums traded on Usenet, for example, are also the top 10 selling albums. Again, I don’t advocate [giving away] entire albums, but the record companies need to gain a little perspective.” (Indeed, the best single-album sales week of 2008 belongs to Lil Wayne’s Tha Carter III, which officially arrived after so many illicit leaks and bootlegs that the rapper cheekily named the bonus disc The Leak.)

Ekko also remembers the time a major label sent him a promo CD and then balked when he posted an MP3, reminiscent of last year’s surprise police raid on DJ Drama and DJ Cannon for “racketeering” street mixtapes loaded with tracks provided by the same industry that now vilified them. Labels both minor and major have benefited from such underground promotion: 50 Cent is just one of many rappers to score a major-label deal via mixtapes, and most cite a slew of well-regarded 2005-2006 “bootlegs” as the fuel for Lil Wayne’s astronomical chart ascendancy this year. Similarly, bloggers like Ekko see this sudden rejection as labels biting the hand that blogs them.

The Web Sheriff appears to act as the middleman for (slightly) smaller imprints whose artists are assumed by many to look the other way on illegal file-sharing and industry-sales figures, concerns more synonymous with the RIAA and the larger companies they represent. Nonetheless, “Every time we’ve used Web Sheriff, we’ve done so with artist and management approval,” says Matador Records co-president Gerard Cosloy. “Some artists are more interested in this stuff than others. We did have one instance in which an artist and their manager objected to the tone of Web Sheriff’s correspondence to a blog. That’s out of the three times we’ve used them.” (Cosloy declined to name which three artists Web Sheriff was hired to protect—Google searches turned up blogs targeted regarding Matador artists Cat Power, Mogwai, and Yo La Tengo.)

“The majority of the artists on our label have expressed concern over the manner in which file-sharing impacts sales, as several are quite concerned about material leaking early,” Cosloy continues. “Everyone understands how positive buzz/chatter in blogland is useful. Conversely, a crap review or a ton of negative message-board comments about a low bitrate [MP3] of a song that might not even make the final mastered version strikes many artists as a terrible way to bury an album.” As to targeting MP3 blogs specifically, “It’s a little hard for us to get a third party like Web Sheriff to fully grasp the nuances of what’s the difference” between one-track cheerleaders and, say, torrent sites simply offering the full album, “so we tend to make hard-and-fast rules for everyone.”

John Giacobbi is swift-spoken on a call from his London office: “We don’t have a statistic or anything like that, but I can say quite categorically, yes, it has made a significant difference,” he says of his company’s efforts. He also touts the Web Sheriff’s other pursuits, including aiding an artist when “a picture of his house and coordinates to the home” were posted on a fansite. His company’s day-to-day routine consists of “watching” blogs, peer-to-peer networks, and torrent sites, all while listening to free music—surprisingly, his offices receive promos weeks or months in advance, just like the press. (“Well, we have to know what we’re looking for.”) The “Outlaws Gallery” featured on WebSheriff.com explains that other offenders include sites that “superimpose the heads of female stars onto hardcore images,” plus a Moby fansite with a “Stalking Moby” section, here referred to as “disturbing.”

As for Grizzly Bear’s pre-written apology, “We’re not at liberty to discuss details of specific cases in this instance,” Giacobbi says. (Both Animal Collective and Grizzly Bear declined comment.) “But we can say that it’s common practice for the wording of an apology to either be provided by or pre-approved by the injured party.”

Droste’s entry on his band’s blog now reads, in part: “If I’ve offended anyone in the Animal Collective family with my excited post, I apologize. It was meant to generate even more excitement for what will surely be a great album, and yes the Web Sheriff is just doing his job.” He further notes that he found “Mr. Sheriff’s” letter “funny.”

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Untold Story of Mondo Kim’s Raid

After last Wednesday’s raid on Mondo Kim’s music and video store on St. Marks Place, which resulted in the arrest of five people, Kim’s owner Mr. Youngman Kim, store employees, and the Recording Industry Association of America (RIAA) are offering more details.

Second-floor manager Charles Bettis, who was among the five originally booked for trademark counterfeiting in the second degree, sent a mass email upon his
release on June 10, detailing his arrest and jail time. “We went downtown, beforehand they confisicated [sic] our cell phones and thanks to
technology, was not able to memorize anyone’s phone numbers. The pigs still have my cell phone & iPod. So we got put into a pen w/ a bunch of other dudes. The cells were packed constantly, filled w/ 30 or so people at a time, having 10
bullpens down there, body heat made things harder in the dank cells. . . . All the other employees were released from there [sic] cells before me, i had a
panic attack that was prompted by all this stress, not eating (jail is not really vegan friendly) nor sleeping the entire time I was in.”

According to the district attorney’s office, Bettis and the others were ultimately charged with failure to disclose origin of recording in the second degree and trademark counterfeiting in the third degree, both misdemeanors.

Ultimately Mr. Kim is taking full responsibility, stating, “I’m the owner of Kim’s. My employees had nothing to do with it. I am the final person responsible for it.” Kim was issued a desk appearance ticket by the D.A.’s office this week, and a court date is set for mid August.

There has been much confusion as to whether Kim’s employees had been
manufacturing the music mix tapes on store premises. “They keep printing
that we have a CD burner, and we don’t,” explains Sean Williams, assistant
manager of rentals. “We have DVD burners upstairs—there’s no CD burner.” Other employees insist all mix tapes and music DVDs were bought from outside distributors.

But Brad Buckles, the RIAA’s vice president of anti-piracy, noted, “It’s my understanding that the police seized nine DVD burners, and those are used to burn CD-Rs as well.”

“This was overexaggerated by some media,” says Kim. “Some press had an article that we burned CDs everyday, three hours, in the back. It’s definitely ridiculous—we never burned any CDs, at all, in my store. Period.

“The reality is this,” he continues. “We have 120,000 titles of CDs. The police seized 51 titles, from my counting, which are mostly hip-hop mixed by DJs. For us, it’s really hard to know…all the DJs and artists that [have a track on] a hip-hop mix. It is very hard to check what’s in there. Every CD, we couldn’t listen to before we buy. If you had any knowledge about the hip-hop and what they took from us, those CDs have very clear information on who made it and the name and phone number, because we purchase from them.”

The police also seized Kim’s cash register money and computer server, paralyzing all buying and renting. When the store reopened about six hours later, Williams says, employees had no choice but to handwrite all transactions. At the time of this writing, the computers still had not been replaced. Williams adds, “They have all our customers’ files, and they could be doing something with that for all we know. Patriot Act stuff. You know, all the people who rent porno here and wanna run for office, stuff like that. That’s something that’s kinda interesting too. They’re not letting us know what they’re doing with their computers.”

One employee, speaking under conditions of anonymity, believes Sony-Columbia record executives were among the dozen or so police officers who executed
the raid. “One guy from the label went around with the managers, looking
for certain things. He didn’t say that he was [from] Columbia, but the titles that he pulled, to check to see if they were bootlegs or not, were Columbia artists.” Sony-Columbia insists it had no direct involvement with the raid.

Williams also suspected it was label-motivated, however, describing the pair of men he thought were execs as “a couple of California moustache guys that didn’t seem to know the neighborhood.” He adds, “I saw that when they were trying to order their food, they came outside, trying to figure out [where they were].” After kicking out the employees, Williams says, the police had a “pizza party” on the music department floor, in sight of all the barred employees standing outside.

Buckles explains that perhaps employees were confusing label representatives for RIAA experts. “We did have representatives there to help identify the products involved. The labels themselves generally don’t have any anti-piracy enforcement mechanism; as the trade association representing all the labels, the RIAA [acts on behalf of] the companies that produce and distribute about 90 percent of music today. They’re generally employees of ours and not the labels themselves. . . . Columbia didn’t have anything to do with the raid.”

Still, Mr. Kim disagrees: “Columbia complained. We got a paper that the police showed us.” He says authorities could simply have taken unlicensed material off the shelves. “We are willing to cooperate. This is totally unnecessary.”

“It just doesn’t make sense for any record labels to put any stores out,” adds Williams. “They didn’t really ask who’s responsible until after everybody who would have been responsible left. It was just sloppy. And they left grease all over the floor from their pizza.”

What surprised Kim’s employees most was the relative randomness with which the police arrested people—especially when they could have taken down those most directly responsible for the ordering of mix tapes and the on-site making of DVD bootlegs. “They kinda misunderstood the size of the store,” explains a Kim’s employee. “They thought this was the only store. They didn’t really have it together. Because once they realized there were other stores, they were upset
that [the stores weren’t] raided all at once. So when they were grabbing
the managers, they had assumed that the managers were responsible for buying. That’s why they grabbed the wrong people.”

Williams adds, “They did a sloppy job. They didn’t get any of the responsible people. If they had to arrest somebody, they definitely just arrested whoever was right there.” In addition to Bettis, police arrested music manager Craig Willingham and three store clerks.

Buckles explains: “It’s my understanding that the employees who were charged were involved in the burning, or were making sales where they were knowingly going around the regular inventory system. They weren’t salesclerks who were ringing things up as they go by them; they were salesclerks who were ringing them up, seeing what it was, and ringing them up special because they knew that they had to be treated differently.”

Kim, however, says the mix tapes were not treated differently from other store merchandise. “They were part of inventory I found out, but they are a very, very little part. As I said, 51 titles, as I counted, seized by police—we have 120,000 titles.”

Though no non-music DVDs were seized, Williams believes the Motion Picture Association of America may have played a role in the raid as well; an MPAA spokesperson confirmed their presence at the raid. Buckles added, “We’ve quite frequently worked with MPAA. As the equipment and the raw materials needed to engage in piracy have merged, so have the operations.”

As for the nature of video bootlegging around New York, Williams had this to say: “There’s other smaller video stores that do it too, have a couple of bootleg movies of things that aren’t available. I mean as soon as something becomes legitimately available, [they] always replace the bootlegs. [They] don’t like having them, but when things aren’t available, that’s why [they] have them, and everybody knows that.”

Immediately after the raid, Mr. Kim’s other stores took action. According to Williams, despite a similar raid that occurred at their store nearly seven years ago, Kim’s Video does not plan on buying or selling bootlegs anymore. The store plans to fill with music imports the shelf space that had formerly been used for mix tapes.

“If you have any idea about Kim’s,” explains Mr. Kim, “[it] is very well-known for underground artists—musicians and filmmakers. We are the biggest supporters nationwide for the underground artist. We always support their work before they become very famous. We have a strong platform for those underground filmmakers and musicians. The hip-hop that the police seized has a very little platform for those artists. Otherwise I don’t see what we did wrong at all. Period. We are serving the poor, young, very experimental artists nationwide—I should say the world wide.”

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Mondo Kim’s Busted for Bootlegs

At 1:15 p.m. on Wednesday, June 8, patrolmen of the New York Police Department’s 9th Precinct executed a search warrant for Mondo Kim’s music and video store, located at 6 St. Marks Place. The flagship store for the Kim’s Video chain, Mondo Kim’s is one of the city’s largest independent music retailers. “Five Hundred CD-Rs, Twenty-Seven Music DVDs, Nine DVD burners, and a scanner were among the items seized,” reports the Record Industry Association of America (RIAA), who issued a press release on June 9 to applaud the efforts of the NYPD. The well-known back-right corner of Kim’s ground floor, normally brimming with hip-hop mix tapes, had been raided completely, the section’s shelves conspicuously empty.

After the patrol evacuated customers from the store, they arrested five Kim’s employees: store Manager Theo Frimpong, 39; Diana Kinscherf, 19; Donald Stahl, 26; Charles Bettis, 29; and store Music Manager Craig Willingham, 32. All were charged with trademark counterfeiting in the second degree, and held at Manhattan Central Booking over the night of June 8.

Kim’s owner, Youngman Kim, has made no official statement about the raid. But Brad Buckles, Executive Vice President, Anti-Piracy, RIAA, issued the following: “The New York City Police Department’s steadfast commitment to the fight against piracy has stamped out yet another significant illegal operation. With actions such as these, New York City law enforcement continues to send a strong message to music pirates that this behavior simply will not be tolerated. Retailers who are making money on the backs of musicians and record companies by selling pirated CDs should know that this is absolutely no way to conduct a business.”

The confiscation comes less than a month after the RIAA brought copyright infringement lawsuits on behalf of the major record labels against seven retailers in New York City and three Florida cities. Physical goods piracy, the RIAA has long claimed, costs the U.S. recording industry more than $300 million a year; others dispute those figures.

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The Big Chill

Users of easytree.org who visited it on April 6 got a nasty surprise: a note saying it had been shut down due to legal threats. EZT, as it was known, was the file-sharing equivalent of Grateful Dead-era tape trees: a clearing-house for “torrents,” which allow multiple users to exchange fragments of the same big file with each other until they’ve all got the whole thing. The site’s focus was complete concerts in CD-quality sound by the likes of the Drive-By Truckers, moe., and Miles Davis; its administrators were fastidious about removing listings for anything that had been commercially released, and it didn’t host any actual media files itself.

Didn’t matter. The word that went around the EZT community was that a European division of Universal Music had complained to Easytree’s Internet service provider that the site was hosting an illicit Nirvana video (which it wasn’t) and threatened to sue. Whereupon the ISP got cold feet; that’s why they call it a chilling effect.

File traders bounced right back. Within days, they’d migrated to the very similar dimeadozen.org, whose anonymous administrator had no comment for the Voice on the resemblance between the two sites, and were happily torrenting last year’s kickass Truckers gig from the Netherlands, a Meters interview from NPR, and thousands of other shows.

As usual, the music business’s legal threats are eight steps behind technology. The wheels of the law creep slowly enough that Grokster—the file-sharing service about which the Supreme Court recently heard arguments, with a decision expected in June—is now basically irrelevant. And i2hub, the high-speed peer-to-peer application that runs on universities’ Internet2 networks, has finally been noticed by the Recording Industry Association of America, which just sued 405 college students who’ve used it.

The industry’s also seemingly poking around Soulseek: Search for not yet released albums, and you’ll see dozens of suspicious fake “sources” with user IDs that are biblical names with three digits appended (Jacob837, Elijah098, Luke356, and so on). The kids will probably move past Soulseek soon anyway; these days they’re flocking to YouSendIt, which can easily disseminate big files, isn’t a peer-to-peer deal, and allows uploaders to remain basically anonymous.

Meanwhile, the RIAA has been massaging its 2004 figures to convince regulatory agencies that they’ve got a big problem—and potential investors that everything’s copacetic. Its March 21 press release leads with word that CD shipments to American retailers rose 5.3 percent last year, the first increase in five years. Citing the number of discs going to stores, not the number being bought from them, is the RIAA’s favorite trick. As they don’t mention, though, CD sales also rose in 2004, to 666.7 million discs, about 10 million more than 2003. And that’s despite the fact that major labels—of which there are now four, one fewer than a year ago—are slashing the number of new albums they’re releasing.

The RIAA’s press release goes on to natter solemnly about “the ongoing impact of . . . illegal downloading on peer-to-peer networks,” but its overall tone is sunny: “[T]he public’s enthusiasm for music is stronger than ever,” it says, and chairman Mitch Bainwol is quoted as saying that “the legitimate digital business has not even begun to reach its potential.”

Why so perky, Mitch? It could be that Warner Music Group, one of those four majors, desperately needs to convince investors that it’s got a future. WMG has just announced details of its forthcoming $782 million IPO, which will value the company at $3.43 billion. That’s a hefty increase from the $2.6 billion that an equity group led by former Universal Music head Edgar Bronfman Jr. paid last year to buy Time Warner’s music division. According to a Financial Times report, its top five executives scored $23.3 million in salary and bonuses last year, or more than triple the $7 million from the IPO proceeds that will actually go to WMG’s general operations; Forbes notes that Bronfman and associates are also filling their pockets with a pre-IPO $141.5 million dividend. Not bad for a company that keeps getting subpoenaed by New York attorney general Eliot Spitzer over its promotional practices.

So where’s the extra billion bucks in WMG’s value coming from? Apparently from “streamlining”: getting rid of well over 1,000 employees and dropping just under half of the artists signed to Warner’s labels. And maybe from expectations of future alliances: The New York Times suggests that Warner may still want to merge with another major, EMI. All they have to do is convince regulators that kids trading Drive-By Truckers live tapes on the Internet are so dangerous that further consolidation is the music industry’s only hope. It worked last time.

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Meet John Doe

Of the millions of people who illegally download free music using various peer-to-peer (P2P) networks, only about 8,400 have been sued by the recording industry—including, last month, an 83-year-old dead woman from West Virginia. Those odds seem pretty good, until it happens to you. This past October, my former Internet provider alerted me that they had been subpoenaed by the Recording Industry Association of America (RIAA) on behalf of its member labels with the demand to turn over the names and addresses of 100 “John Does” that the RIAA had detected sharing music. The RIAA is now appealing an 8th Circuit Court decision, which ruled that Internet services providers don’t have to reveal names of customers who have not yet been sued.

“We surf peer-to-peer music networks,” Jonathan Lamy of the RIAA communications office says. “We look for people who are offering songs, and if they have a substantial number of songs, we take note of all the songs they are offering for distribution and their IP addresses.” Suits are filed against the anonymous file-sharers in bulk and then the RIAA goes to court to get names and addresses from ISPs. From there, the RIAA offers downloaders a chance to settle the complaint, or they can go to court and fight it.

For me, the experience of settling with the RIAA was almost painless—except for the thousands I agreed to pay. Dragging my “shared” folder to the trash icon, promising not to download anymore, and acknowledging that illegal downloading is wrongful were easy enough. I happened to know an intellectual-property lawyer who agreed to handle the negotiations pro bono. He was the one who called the RIAA settlement center number and spoke not to a lawyer, but to a staffer empowered and trained to negotiate. “It feels like they’re doing a volume business,” my lawyer told me.

Lamy says that of the 8,400 suits filed (8,100 of which were filed against John Does) there have been about 1,700 settlements to date. The process, from detection to settlement, can take months, but its critics believe the RIAA moves far too quickly. Annalee Newitz, policy analyst for the civil liberties group the Electronic Frontier Foundation, says the practice of suing not just a single anonymous person but dozens at a time is called “spamigation.” “That’s one of the slimier things that entertainment companies are doing,” she says, because mass lawsuits allow “companies to sue hundreds of people for the same cost as suing only one. So instead of respecting the defendants’ due process rights and suing them individually, the companies are able to cut down on court fees and sue them as a group. This makes it much easier for companies to sue people willy-nilly, even if they aren’t sure that the person being sued is in fact infringing, because it doesn’t cost them any extra money to add another name to their suit.” The EFF has helped compel entertainment companies to file individual rather than group lawsuits in Northern California, and has also worked with other John Does to have the RIAA and other entertainment company cases moved to their home states.

Most settlements top $3,000, and according to Newitz, some can go as high as $7,000. The RIAA wouldn’t confirm these figures, but it didn’t dispute them either. Lamy says that of all the John Doe cases so far, “none have come to trial.” And indeed, it is hard to imagine going to trial doing much good for a hypothetical Doe, since millions of users are illegally downloading and sharing music. Frequent downloader Cecilia Gonzalez didn’t settle against the RIAA, and on January 7, she received only a summary judgment in a U.S. District Court. Throwing out Gonzalez’s claims that she was simply “sampling” songs to see if she wished to buy them and that she was an “innocent infringer” unaware that she was violating record company copyrights, the court ordered her to pay damages of $750 for each of 30 songs she was found to have downloaded illegally, for a total of $22,500. That’s more than the poverty line income for a family of five in 2004 ($22,030), but it is worth pointing out that damages of $750 per infringement is the minimum the RIAA could have received, and that the original complaint filed against Gonzalez claimed that she had nearly 2,500 downloaded songs. Damage payments could potentially be much higher. Finally, courts have found that the “cumulative effect” of downloaders makes individual downloaders liable for damages, even if their personal downloading has only a marginal impact, so even penny-ante downloaders are potentially at risk.

The RIAA is not eager to go to trial, according to Lamy. “We would prefer to settle sooner rather than later. . . . We make numerous attempts to engage downloaders throughout the process.” The RIAA is even eager to adopt P2P technology, he says. “Record companies are aggressively licensing digital music,” and even Napster founder Shawn Fanning has come in from the cold with SNOCAP, a clearinghouse of properly licensed digital music. The problem is that legal digital music firms have to compete against P2P outfits with “parasitical business models.” It’s cheaper to distribute stolen free stuff than it is to pay up front, after all.

For all the furor over the suits, they may not be having that much effect on the amount of illegal downloading. Newitz says that “recent reports indicate that file sharing is bigger than ever—and so are the record industry’s profits. As a result, it’s hard to see the suits as anything other than a wrongheaded attempt by the old media industry to push upstart innovators out of the marketplace rather than working with them.” The RIAA points to the rise in legal downloading to show that its strategy is working. In a December press release, RIAA president Cary Sherman said, “With legal online retailers still forced to compete against illegal free networks, the playing field remains decidedly unbalanced. . . . That’s why continued enforcement against individuals stealing and distributing music illegally is essential, as is holding accountable the businesses that intentionally promote and profit from this theft.”

The EFF has its own suggested model for legal downloading, called “voluntary collective licensing.” P2P users would pay a flat rate, say five dollars a month, for use of the networks, and that money would be passed on to ASCAP or some other suitable association representing artists and producers. “This is exactly how radio works, except that radio stations pay the licensing fees rather than listeners,” Newitz says. “It would be easy to figure out how much to pay artists using a VCL for P2P technologies, because it’s simple to use current software to track how many times a song is downloaded”—a method that would make such a scheme even more precise than the estimates radio uses. But the RIAA isn’t going for it. “We do oppose compulsory licensing schemes that would set a specific price” for a license to download, says Lamy. SNOCAP and other pay-for-play systems like iTunes is what the industry supports.

And downloading? Well, I’m done with it now, except for legal amazon.com freebies, but even my close friends haven’t been scared off. One scoffed at my settlement, and said that if she were sued, she’d fight the RIAA in court. For her, downloading is “civil disobedience” in protest against the legal digital music systems that just don’t have all the music she wants. Of course it’s easy to strike a rebel pose like that . . . until you become just another John Doe.

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CULTURE ARCHIVES MUSIC ARCHIVES

Store Wars

In its first two weeks, Good Charlotte’s The Chronicles of Life and Death has sold more than 270,000 copies and totally pissed off a bunch of small record stores. The problem isn’t that it’s available in a “life version” and a “death version,” each with one song that’s not on the other; it’s that the copies sold at Target have yet another extra track, included on the CD and listed on the packaging.

Among independent retailers, this is known as a “superior product,” and they flip out when chains like Target or Best Buy offer one—not least because locally owned stores, which pay higher wholesale prices than chains and get more stringent billing terms, often don’t learn about it until they’ve already placed their orders. “We’re the ones that usually break those bands, and we have to find out about these things from our customers,” complains Lenny Sblendorio, manager of Vintage Vinyl in Fords, New Jersey. In retaliation for Epic Records giving Target an advantage with Good Charlotte, several large independent stores have taken recent releases by Franz Ferdinand, Modest Mouse, the Clash, and everything else on Epic off display for a few weeks.

“In our eyes,” says the Coalition of Independent Music Stores’ president Don Van Cleave, “it’s as if Barnes & Noble got a version of a book with more chapters than the independent booksellers’ version. If Epic had given Target a separate CD with 15 live tracks to sell with the album, we wouldn’t have said a word. But they put the song right on the CD itself, and that’s where we think it crosses the line.” A few other recent albums have been sold in longer versions at chains: In particular, indies objected to Further Seems Forever’s Hide Nothing and Atreyu’s The Curse, appearing with extra tracks at Best Buy.

CIMS doesn’t object to the increasingly common practice of albums being sold exclusively through a particular chain—they do the same thing, in fact. (Belle and Sebastian’s EP Books and John Mayer’s live album As/Is are among CIMS’s exclusives.) Van Cleave also reports that sales at independent record stores are significantly better this year than last, attributing the change to better releases, diversified inventory, and lower prices—and definitely not to the Recording Industry Association of America’s lawsuits against file sharers. “We think any industries that sue their customers are idiots,” he says bluntly.

This particular idiot industry sued another 762 of its customers on September 30. Nielsen SoundScan reported that overall album sales for the first nine months of 2004 are up 5.8 percent from the same period last year, and the RIAA recently announced that labels shipped over 10 percent more CDs to stores in the first half of this year than in the first half of 2003. Shipment figures, though, are not sales figures; the RIAA also notes that shipments of the top 50 albums are down 16.7 percent from 2001. Instead of pointing out that retail ordering has gotten more efficient, RIAA chairman Mitch Bainwol segues from those numbers to announcing that “thousands have lost their jobs” because of piracy—rather than, say, major-label mega-mergers.

The only obstacle to Big Music recently has been the U.S. Supreme Court. On October 12, it declined to hear the RIAA’s appeal in its lawsuit against Verizon over a provision of the Digital Millennium Copyright Act; as a result, the RIAA has to continue to file “John Doe” lawsuits against file sharers, instead of getting Internet service providers to turn over users’ names without judicial oversight. The same day, the Department of Justice’s intellectual property task force recommended, in John Ashcroft’s words, “the strongest, most aggressive legal assault against intellectual-property crime in our nation’s history”: criminalizing both file sharing and cracking protection software, and spending more money investigating the crime wave of teenagers downloading songs missing from Good Charlotte CDs.

Speaking of strong, aggressive types, last month Arnold Schwarzenegger officially ordered his chief information officer, J. Clark Kelso, to figure out how to restrict the use of peer-to-peer programs on California’s state-owned computers, as well as computers at state universities. Bainwol responded with a press release praising the governator for recognizing “that technologies can be hijacked to compromise sensitive governmental information and, more importantly, for illicit purposes that rob the creative community of its future.” Interesting use of “more importantly” there. The creative communitydoesn’t necessarily like Bainwol speaking for it, either. Above the FBI logo warning about unauthorized copying on the back cover of Elvis Costello’s new The Delivery Man, there’s another message: “This artist does not endorse the following warning. The F.B.I. doesn’t have his home phone number and he hopes that they don’t have yours.”

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CULTURE ARCHIVES MUSIC ARCHIVES

Sick and Mortar

The familiar story is that the CD market is collapsing, and small record stores are in terrible trouble as consumers switch over to acquiring music digitally, with or without paying for it. It’s true some independent retailers are struggling; the long-established New York stores Midnight Records and Holy Cow have shut their doors in recent months, and Mount Kisco’s Exile on Main Street closed late last year. But record stores, like restaurants, close and open all the time.

The Recording Industry Association of America claims CD shipments continue to drop; Soundscan’s figures, conversely, indicate first-quarter sales for 2004 are up a bit over 9 percent from last year. The difference is that shipments (the number of discs sent to stores) are not the same thing as sales (the number of discs people buy). Apparently, retailers are managing their inventory more efficiently, and returning fewer unsold albums—which means big record labels are, in theory, spending less and making more than a year ago.

That doesn’t always trickle down to individual record shops. Pat Feeney, owner of Main Street Music in Philadelphia, says that May was his store’s weakest month since it opened over 12 years ago. “In the last five months or so, there have been days when I feel like I’m selling hula hoops,” he says. Main Street specializes in what’s known as AAA (adult album alternative); the first Norah Jones album was his biggest seller ever. AAA fans, though, tend to be older, more sedentary types who prefer one-click ordering to rummaging around a record store—which means online stores like amazon.com are taking over from the brick-and-mortar type. And the street where Feeney’s store is located is in decline.

Small stores that rely on major-label releases have also been hit by narrowing profit margins and fluctuating costs. Universal Music Group, which made a big deal out of dropping its retail (and wholesale) prices in October, raised some again recently—quietly, and without announcing it beforehand, so retailers didn’t have an opportunity to stock up. And independent retailers who sell a lot of mainstream music live in terror of a Best Buy opening nearby: The electronics giant sells new CDs “literally for less than we pay for them,” Feeney says.

Still, some narrowly focused record stores are thriving. Former Voice contributor James Bradley opened Sound Fix in Williamsburg in late April, and he reports that business so far has exceeded his expectations. “A lot of that has to do with the neighborhood,” he says. “I’m trying to create a store that’s a nexus for clubs and musicians, that’s connected to the artistic vibe of the area.”

That means presenting it as a local hangout spot, like the old Halcyon (which has reappeared as a new record store in DUMBO). Sound Fix is connected to a café that hosts occasional performances; the store stocks lots of vinyl and sells CDs for local bands, and Bradley will soon be installing listening stations. “People like to get out of their homes, walk into a record store, and talk about music. There’s no substitute for that,” he says.

Kim’s Mediapolis, up near Columbia University, is preparing for the slow summer months while students are away, but music manager Howard Flax says CD sales have been solid so far this year. “We’re doing OK, because what we sell isn’t music you can get just anywhere—we’re selling a lot of the new DNA reissue, the Streets, the Magnetic Fields. I don’t think our customers are really interested in going to Best Buy, even though they’ll sell the Shins CD there for 10 bucks. You just have to work a little harder.”

Sound Fix’s Bradley agrees. “People like record stores,” he says. “It’s not as if people are happy to see them going away—they just wish they could go in and be treated nicely. The dingy record store with some surly kid behind the counter—that’s the old model.”

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CULTURE ARCHIVES MUSIC ARCHIVES

Brand-New Lag

The music business is finally figuring out how to profit from the previous generation of peer-to-peer technology. Companies like Webspins and BigChampagne monitor the most-traded songs on file-sharing networks (last week’s No. 1 was Hoobastank’s “The Reason”), and record labels have noticed that unauthorized MP3 traffic is a pretty good sign of what people want to hear. Billboard recently reported how, for instance, Maverick Records parlayed the heavy trading of Story of the Year’s “Until the Day I Die” into airplay and, eventually, a gold album.

Not that the Recording Industry Association of America is grateful. On March 23, it sued another 532 uploaders, 89 of them college students; a week later, the International Federation of the Phonographic Industry took legal action against 247 more swappers in Canada, Denmark, Germany, and Italy. On top of that, the RIAA has abruptly shut down its “Clean Slate” amnesty program, in which file traders could turn themselves in, delete their unauthorized files, agree not to do it again, sign an affidavit, and open themselves up to potential lawsuits from everyone else. No great loss—only 1,108 people had ever signed up for it anyway.

Meanwhile, the Justice Department formed an intellectual-property task force at the end of March. On April 21 and 22, the DOJ and FBI’s “Operation Fastlink,” in collaboration with law enforcement groups from 10 other countries, seized upwards of 200 computers involved with what John Ashcroft called “the international online piracy world.” By that, he didn’t mean college students trading String Cheese Incident MP3s, but “warez” groups, who specialize in cracked software, games, and movies.

Music geeks have been moving past old-fashioned peer-to-peer MP3 trading anyway. Audioblogs like Soul Sides and Said the Gramophone have proliferated over the last couple of months. They’re just like regular weblogs, except that every day they present a special MP3 or two (often not-yet-released or out-of-print treats), usually with extensive explanatory comments. Most audioblogs only make songs available for a week or so; few, if any, have experienced legal hassles so far, although they occasionally get asked to remove a song.

The music business may have more reason to fear two other developments that have been around for a few years but are reaching critical mass. The first is FLAC, or Free Lossless Audio Codec—a way of making sound files smaller without compromising sound quality. (Metallica are selling FLAC as well as MP3 downloads of every show on their current tour; by comparison, Prince’s online store, which sells only Windows Media files, seems positively Stone Age.)

The second is Bram Cohen’s program BitTorrent. It’s a tool for “swarming downloads”: a way to quickly mass-distribute very large, popular files without using too much bandwidth from a single host. Initially spread by sites like the jam-band tapers’ mecca etree.org it’s become the program of choice for trading TV shows, movies, and concerts. Cohen has noted that using BitTorrent for illegal trading is “patently stupid,” because users can’t hide their IP addresses. (Evidently, there’s a lot of stupidity out there.)

Let’s say you want to get a copy of the Pixies’ first reunion show, the Minneapolis gig from April 13—it’s in demand right now, and therefore a likely candidate for BitTorrent. Once you’ve located a “torrent” file for it (which tells the program what it’s looking for, and is usually a few dozen kilobytes), the program seeks out a bunch of other users who have the concert on their hard drives and downloads little pieces of it from each of them simultaneously. Before too long, you’ve got the whole 27-song set as CD-quality FLAC files, and in the meantime you’re passing bits of it on to other Pixies buffs.

BitTorrent has legitimate uses for sure: A few weeks ago, Blizzard Entertainment used it to distribute a new 2-gigabyte game. But it also means that full-length, full-quality albums, with graphics, are now almost as easy to replicate over the Internet as MP3s. If the major labels are smart, they’ll figure out a way to make money from swarming-download technology—but they don’t have long.

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How Bad a Year?

Exactly how bad a year did the music industry have in 2003? It depends who’s asking. According to Nielsen Soundscan, American labels sold 687 million units (including 19.2 million paid downloads) last year—a drop of less than 1 percent from 2002. A widely cited survey from the Pew Internet & American Life Project suggests that file sharing has plummeted since the Recording Industry Association of America started threatening traders with lawsuits. The percentage of Internet users who download music, it claims, fell from 29 percent to 14 percent between May and December.

Of course, it may be more correct to say that half as many Internet users are willing to tell a pollster that they download music—these days, the first rule of File Club is you do not talk about File Club. And a study by the NPD Group (which monitors actual computer usage), released a couple of weeks after Pew’s, indicates that peer-to-peer file sharing went up 14 percent between September and November, after dropping for six months.

The U.S. Court of Appeals ruled December 19 that the RIAA can’t use the Digital Millennium Copyright Act to subpoena Internet service providers for their customers’ identities without a lawsuit. Even Senator John Sununu, Republican of New Hampshire, declared at the Consumer Electronics Show in Las Vegas that that’s “not what the DMCA was intended to do. . . . We can’t be writing legislation that gives holders of certain types of intellectual property special rights.” In response, the RIAA has gone back to getting information the old-fashioned way: by filing suits, on January 21 against 532 allegedly file-sharing “John Does,” now identified only by IP address. Presumably, some of them won’t turn out to be 12-year-old girls, 83-year-old nuns, or senators trading bootleg remixes of Howard Dean’s post-Iowa yelp.

More PR disasters, after all, could impede the RIAA’s attempts to look like an actual arm of the law. The organization was recently granted permission to put the FBI’s logo on CD packages, to remind consumers once again that it considers them all potential criminals. LA Weekly reported a few weeks ago that the RIAA’s anti-piracy unit (now headed by former ATF director Bradley Buckles) has been hiring ex-cops to wear “raid” vests stenciled “RIAA,” confront street vendors selling bootleg CDs, and fill out incident reports saying that they “voluntarily” forfeited their wares. (The unit’s Western regional coordinator, John Langley, told the Weekly why they photograph the people they bust: “A large percentage [of the vendors] are of a Hispanic nature. Today he’s Jose Rodriguez, tomorrow he’s Raul something or other, and tomorrow after that he’s something else. These people change their identity all the time.”)

The RIAA is also trumpeting its $200,000 settlement of infringement claims against Nashville’s United Record Pressing, one of the few vinyl plants still operating in America. (If you bought an indie-label seven-inch single in the ’90s, it was very likely pressed there.) It seems that they were hired to press some records that turned out to include unlicensed content (“more than 170 unauthorized sound recordings”). Everything that customers send to United is now “audio tested,” and no samples of any kind are permitted. Fair use? The public domain? Out of the question.

Individual record labels are facing turbulence too. Warner Music Group, soon to be taken over by Edgar Bronfman (whose investment group is buying it from Time Warner), is bracing for massive layoffs, rumored to be up to half of its staff. Antonio “L.A.” Reid got the boot as president of Arista the same week that the label had the top three songs in the country with “Hey Ya!,” “The Way You Move,” and “Milkshake.” And the Beastie Boys’ defunct Grand Royal label failed to sell its assets in a bankruptcy auction last week—nobody offered more than $65,000.

Even so, Pepsi’s giving away 100 million song downloads (five times the total number sold last year) on Apple’s iTunes in February and March. Coca-Cola has riposted by launching its own music site, in the U.K. rather than the U.S., and selling songs in Windows Media rather than iTunes’ AAC format—the website doesn’t even work on Macs yet. It’s also saddled with the worst name ever: mycokemusic.com. (Mirror and razor not included.) Evidently, the only pop business that’s got money to throw around right now is the carbonated kind.