2012 is the year that the internet became a political force. What took so long? Well, the majority of us have surely been distracted by LOLcats and pr0nz.

Full disclosure: I work on issues at the intersection of technology, copyright and policy. In recent months, I’ve been able to observe firsthand the impact of internet-powered social movements. To wit: the unprecedented outrage around the Stop Online Piracy Act (SOPA) and PROTECT-IP (PIPA) stopped either bill from becoming law — something many in Congress assumed was a fait accompli.

Then there’s the immense pressure brought on Susan G. Komen for the Cure after the organization pulled funding to Planned Parenthood. The swift disapproval — again, largely web-driven — was so intense that Komen’s VP is now stepping down.

The “bitroots” blowback is hardly limited to the US. Public demonstrations are currently taking place in the EU over ACTA, an international intellectual property agreement that some think goes too far. Protests have spilled into the streets, with more than 20,000 people participating in Poland alone. But the real engine of dissent is online.

Powerful as this new form of protest is, it’s hardly perfect. Oversimplifications are common, which is to be expected when complex policy matters are condensed into viral action items. Still, there is one clear takeaway: the world’s netizens will no longer lay back while decisions are made that impact their lives, online and otherwise.

From my experience, I can say that the anti-SOPA/PIPA movement was broad and remarkably diffuse. Internet users are now stakeholders, and they have countless ways to share information and amplify their voices. And, although it would be incorrect to call them a monolithic group, they are perfectly capable of representing their own self-interests when push comes to shove.

It’s unfair to characterize the SOPA/PIPA skirmish as one between Hollywood and Silicon Valley (read: Google). While some major tech companies were certainly involved, most of the push happened at the netroots level. I’d say it went down something like this:

1. Tumblr saw the liabilities they’d face under this overly-broad legislation and independently decided to black out their pages in protest. This woke a lot of folks up right quick.
2. The Reddit community started paying attention, and more people became very well-informed on the issue (and got pretty pissed off).
3. Wikipedia joined the loosely-organized “blackout,” and in the process inspired millions more people to call their representatives. (I think Google put a widget next to the search field on their home page, but they didn’t go dark.)
4. Some of us goobers in Washington — completely outnumbered by the well-heeled entertainment industry goons — pointed out that a lot of constituents (including tens of thousands of copyright holders) weren’t comfortable with this legislation as drafted.

The true action came from internet users who found themselves in a position to push back against a fairly draconian set of proposals. The technology itself amplified their message to the extent that a bill that had already passed out of full committee in the US Senate was put on ice, and the House companion never even made it past markup. You can believe me when I tell you that this is a new dynamic in Washington. I’m not sure anyone has fully wrapped their heads around what it means.

So, are these movements merely lighting in a bottle, or the foundations of a new and lasting form of advocacy? Can these spontaneous yet incredibly potent movements be transitioned from something reactive to something proactive? We may have to wait a while to find out. For now, if I was the MPAA or the RIAA, I might consider internalizing the lesson, instead of blithely dismissing the movement as ill-informed, or worse, driven by tech companies.

What do you bet they won’t?

Dear Big Content,

I love your movies. Especially the ones that are all s’plodey and where stuff flies off the screen. And I love your records, the Led Zeppelin catalog in particular. I’ve always been a good customer: I don’t infringe, and I’m loyal to a fault. But I do have a few questions for you.

First, why do you treat me and my friends like punks? We buy your stuff. But you make it really hard to do it in a way that fits with our digital reality. I’m looking at you, movie and TV peeps. You really want me to accept the violation of a decades-old consumer compact whereby we could rent a movie on the same day it was available to purchase? Do you really think that making me wait TWO MONTHS to be able to rent Mars Needs Moms on DVD (I’m not even talking streaming) is going to drive me into Best Buy to plunk down for the petrochemical disc? Do you secretly like piracy? Because that’s exactly what you’re encouraging.

And music guys: how come you create the conditions where there are only three companies that can afford to offer your wares? Do you know how much fucking money you’re leaving on the table by clinging to your prehistoric licensing terms? Once upon a time there was this disruptive, infringing technology called radio. Completely freaked song publishers out. They wanted to force every broadcaster to pay an individually negotiated amount for every spin. In hindsight, that seems not only inefficient but imbecilic. Maybe the government needs to step up and prod you goofballs towards more internet-friendly terms. I bet you could even keep your car service! Now, I know that you fought the phonograph. And the CD. And the MP3. But you don’t have much fight left in you. So the time to get your shit together is probably now. And yes, me and my friends will be paying VERY close attention to make sure that the artist splits are fair. Because frankly, I’m not all that convinced that you’re providing much value anymore. Consider this your opportunity to be cut into the future while you still have a chance.

And would you please get a basic grasp of how the internet works? Why are you so keen to demonize an entire class of technology? Let’s take search for example. I can look up a recipe to make hash brownies. Or I can look up a recipe to make regular brownies. Now, we all know that those criminal scumbags offering the former must be dealt with in the severest possible manner. But what you’re proposing is like blowing up the entire library because you don’t like that the card catalog system tells you which shelf has the book on hash brownies. Are you really this boneheaded? I get that you’re jealous about Google making bajillions from search. But is that a reason to compromise a mechanism upon which millions of global internet users rely? I guess it’s true what they say: the entertainment industry isn’t all about the money — it’s about ALL the money.

Also, could you please stop pretending that the SOPA/PIPA debacle was about Silicon Valley vs. Hollywood? (Or, as you prefer to characterize it, homespun creators vs. Google.) Literally millions of internet users — many of them copyright holders — had issues with your overreaching bills. They didn’t jump into a controversial intellectual property debate because they wanted to. They felt compelled to, due to the fact that big-money industry lobbying groups like yours were attempting to speak for them.

So kindly cut it out.

I want to be your friend. But you don’t make it easy. The arrogance, belligerence and outright bullying that you employ is hardly endearing yourselves to an entire new generation of creators and rightsholders. If I wasn’t so goddamn genteel, I’d go ahead and list some of that stuff. But unlike you, I have a modicum of class.

Consider this a friendly bit of advice from someone who cares. The road you’re going down leads to disaster and heartbreak. But it’s not too late to turn around.

Your pal,
Casey

One of the reasons I haven’t been posting much is that I’m spending every spare bit of my energy trying to make sure a pair of ill-conceived pieces of legislation do not become law (at least in their current form). The bills in question are the Stop Online Piracy Act (SOPA) in the House of Representatives, and the PROTECT-IP Act in the Senate. (Of the two, SOPA is the worst.)

Now, both of these proposals could be considered well-intentioned, but their language is dangerously overbroad and could have serious implications on free speech, innovation and cybersecurity. I won’t bore you with the details, because I have a broader point to make. (Here’s my favorite analysis of the bills’ scope and provisions, if you’re curious.)

What pisses me off most is that there’s likely another way to achieve the bills’ goals — namely, combating foreign sites that traffic in unauthorized American intellectual property. Yet these alternatives are largely being ignored by a Congress eager to simply hand the internet over to Hollywood. And can say with certainty that these folks are always happy to restrict speech and quash competition in the name of preserving an antiquated business model.

In an agonizing twist of irony, Congress’ mad rush to codify online censorship is in direct opposition to the American government’s efforts to promote informational freedom abroad. This article in Slate expertly explains the discontinuity.

There is a recurring theme in terms of how recent legislation is being crafted. We’re seeing deliberate loopholes that don’t explicitly detail how your liberties will be restricted, but nonetheless establish the conditions under which such outcomes are not only possible, but likely.

Take for example, the highly controversial National Defense Authorization Act (NDAA). Steve Benen has an excellent analysis about whether this law would allow for the permanent detention of American citizens.

Not to compare apples to oranges, but I was struck by the following disclaimer in NDAA:

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

Oh, good! Then there’s NO WAY a court could interpret this statute as giving the president the option of indefinitely detaining without trial an American citizen suspected of terrorism!

This deliberate-loophole doublespeak reminds me of the opening renunciation in SOPA (emphasis mine):

(1) FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.

(2) TITLE 17 LIABILITY- Nothing in title I shall be construed to enlarge or diminish liability, including vicarious or contributory liability, for any cause of action available under title 17, United States Code, including any limitations on liability under such title.

That must mean that there can be absolutely NO WAY that any portion of a site that is “avoiding confirming a high probability” of infringement could be blocked by the US attorney general or have its commercial transactions halted on the mere accusation of infringement (the latter without any due process, and and with an impossibly narrow window for recourse). I feel so much better now!

We’ve always been at war with Eastasia.

To go any further would require a level of legal analysis that would likely put you in a coma. So I’ll close with this hopefully straightforward statement: American civil liberties are currently under threat, and our elected officials have abdicated their fundamental responsibility to safeguard these basic freedoms.

And that should scare the shit out of you.

I’ve censored the following, in protest of a bill that gives any corporation and the US government the power to censor the internet — legislation that could pass THIS WEEK. To see the uncensored text, and to stop internet censorship, visit: http://americancensorship.org/posts/15233/uncensor

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I live in Washington, DC and work in tech policy (as it relates to creative content). This means I have the dubious privilege of seeing how the sausage is made when it comes to the laws that shape our digital future. Increasingly, I’m witnessing a convergence of some pretty hairy issues that previously had limited public impact. And, for better or worse, policymakers — domestic and international — have started to pay attention.

There are three core concerns that will have an outsized effect on how we all experience technology. The first one encompasses the other two, which are of nearly equal importance. Bookmark this page, and we can talk about it in 10 years (provided we’re all still here).

1. Internet freedom
2. Intellectual Property Enforcement
3. Data Privacy/Security

Before I explain how these issues are converging, let’s look at what each means individually.

Internet Freedom
This is the mother of all tech-policy debates, and the one with the most potential to impact every facet of your online experience. The internet is essentially a packet-switching information exchange network that uses a simple protocol to allow all these interconnected machines to “talk” to each other. Its process is, by and large, neutral with regard to content. This is what has allowed it to become the most powerful engine for democratic speech in the history of humanity. That speech may very well be 90 percent LOLcats, but it also includes political speech and practically every other flavor of expression. In the United States, this means that our First Amendment rights are automatically ported over to this digital conduit. That may not be the case with other countries, which is why you see a lot of high-falutin’ talk from the State Department about the importance of maintaining global networks where free expression can flourish.

Unfortunately, recent American trends giving corporate speech unparalleled weight means that your own online speech could depend on how deep your pockets are. This is the crux of the so-called “net neutrality” debate, in which the Internet Service Providers (ISPs) want to charge a premium for the faster delivery of content, sites and services. Without clear rules of the road, speech that does not benefit the ISP’s bottom lines — or those of their corporate partners — may be delayed, or worse still, blocked. There has been progress in achieving at least some protections here. But these rules — promulgated by the Federal Communications Commission — are currently in danger of being stripped away by Congress.

Another thing to keep in mind is that the FCC established separate rules for the “wired” web vs. internet accessed on mobile devices. This distinction, to me, is arbitrary and pointless. There is ONE internet, regardless of how you connect to it. Having a tiered internet for wireless may end up impacting those whose speech has historically been at the greatest disadvantage, as underprivileged and minority communities are more likely to access the internet via mobile devices.

It will be very interesting to see how the American virtue of free expression plays out on our domestic networks, especially as we promote open technology platforms as a means of democratic participation overseas.

2. Intellectual Property Enforcement
Wikipedia defines Intellectual Property (IP) as “a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized… common types of intellectual property rights include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.”

IP is big business. REALLY big business here in America. Which is why there are so many large stakeholders pushing for stronger intellectual property laws on the internet. I have no problem with this in theory, as I am a copyright holder myself, and believe that I should have exclusive rights over how my expression is capitalized upon in the marketplace – that is, for a limited term, which was the balance struck by Congress when it devised our laws governing this part of IP. There are different rules for trademarks and patents, on which I am no expert. So I’ll stick with what I know.

Increasingly, copyright law is coming to loggerheads with the consumptive behaviors of internet users. This is something I’ve written about and spoken on extensively in my professional life. In the interest of space, and without picking sides, I can say this: rightsholders are currently pushing hard on Congress to pass laws that, to my reading, look like blunt instruments when it comes to protecting IP online. And by this I mean legislation currently proposed could, at worst, restrict legitimate speech and compromise the underlying security of the internet. For further details, I point you to my DC colleagues, Public Knowledge. (Full disclosure: my wife works for them.)

3. Data Privacy/Security
Which brings me to my final issue, data privacy/security. Again, I can’t claim to be an expert here, but on the other hand, not many can. Here, we have everything from domestic defense to corporate espionage to individual rights and even First Amendment concerns. Some may have heard Eric Schmidt of Google‘s statement on total data transparency being the key to informational security. I’m sure the NSA would agree, so long as they are the ones with “total” access to the data. I bring this up because at no other point in history has informational privacy been of such import — perceived and actual. I can remember people on the street where I grew up being hesitant about having their name listed in the phone book. Now, everything we do and say online leaves a digital trace. Before you get yourself in some Philip K. Dick psychological tailspin, keep in mind that there’s a big difference between personally-identifying data and non-personally-identifying data. The former can be used to target, track and harass individuals; the latter is basically why Amazon knows what books you might be interested in reading next. Still, there is a lot of grey area with regard to how this information is collected, shared and exploited. And, at the moment, US privacy law is a patchwork of state-by-state regulations and jurisprudence. That might not be the case forever, as Congress has shown interest in establishing a federal privacy standard. Obviously, that could cut both ways.

Data security is the other side of the coin. Here, we reach the queasy intersection of defense, espionage — corporate and state — and hackerdom. Much of what occurs in the world of data security happens privately, or though private-public contracts between government and IT wizards. Obviously, any breach of US information security comes with pretty severe (domestic) penalties, but that doesn’t mean that hackers here and abroad aren’t trying to break into our informational infrastructure every second of every day. A serious breach is practically guaranteed, as is the subsequent crackdown. I believe this is what is referred to as the “Internet 9/11.”

The US isn’t just playing defense here. I’ve followed closely reports of how the administration very seriously considered a cyberattack on Libya’s air defense network in the lead-up to the NATO engagement. We ultimately decided against it, likely for a combination of reasons: one, we may not have wanted to be the first country to open the Pandora’s Box of cyberwar; two, we didn’t have enough time to pinpoint and exploit weaknesses in the Libyan network before airstrikes were scheduled to commence; and three, there were lingering legal questions about whether cyberattacks are considered “hostilities” subject to Congressional oversight within the War Powers Act. I guarantee these questions will soon be answered one way or another. And this will undoubtedly impact the evolution of global information networks.

All three of these issues intersect in myriad ways. The economics of digital entertainment is related to open networks vs. walled gardens, and also bumps up against data privacy/security on both the consumer and corporate end of the spectrum. Participatory democracy depends on open tech platforms and access to robust data pipelines and mobile spectrum. Overly-broad IP enforcement has the potential to limit exactly that openness while sending the signal to other nations that censorship is OK. Digital networks can also be exploited by despots (and even less-nefarious governments) to monitor the speech and movement of a populace. And around and around we go.

Taken together, as they are destined to be, these three issues represent the last tech-policy debate. How we respond will shape human interaction for decades, if not centuries to come.

Backstory:

[Wikipedia]: In 1989, sixties pop group The Turtles sued hip-hop band De La Soul for using a sample from their 1969 hit “You Showed Me” for the interlude track “Transmitting Live from Mars,” despite the fact that The Turtles did not actually write the original song.

Last week, the Library of Congress selected De La Soul’s 3 Feet High and Rising for the National Recording Registry. This is only the second hip-hop album to receive this status, after Public Enemy’s Fear of a Black Planet, which was added in 2004.

Both records would be impossible to release today, due to current copyright law and the environment for licensing samples, which is both expensive and unwieldy.

The following is a faux-letter to the Library of Congress from the Turtles, protesting the addition of De La Soul to the National Recording Registry. It was written by my policy intern Adam Holofcener. We believe that the following bit of satire is covered under a clear parody exception.

————–

To: Library of Congress
From: The Turtles^[1
Re: More like “Piracy-brary” of Congress
Date: 4/20/11

Dear Library,

We, the Turtles, were extremely disappointed with your decision to name De La Soul’s morally bankrupt recording, Three Feet High and Rising, to the 2010 registry of the National Recording Preservation Board of the Library of Congress. This is not an exercise in envy, um, lest you, Library, tactfully forget our magnanimous barrage of decorative hand soaps to your personal residencies.^[2] But, back to the matter at hand, The American Criminal Law! Or, is it Copyright?^[3] Whatever the case, our American courts have determined^[4] that De La Soul fiendishly appropriated our wits and bravado without due cause or compensation. Plagiarism! Barbarism! Patriotism! We are well aware that the Library has rational faculties at their beck and call; however, we would prefer that they use such faculties in a way that does not promote rampant intellectual theft.^[5]

We, or shall I say “I,”^[6] would like to remind the Library that we obtained a pretty nice out-of-court settlement from Messrs. De, La and Soul which, in a certain way of looking at it, bound us to them and their nefarious work in perpetuity.^[7] Thus, we propose a new out of-court-settlement to accompany our last one.^[8] If De Law® Soul is in the registry, then we would also like to be inducted. We aren’t terribly sure how the registry is organized (perhaps by alphabetical order?), but, whatever the case, we would like to be inserted directly in front of De La’s entry.^[9] The symbiotic nature of our two works has gotten very “Frodo and the Ring”-ish in our book. Some have said that characterizing the works this way is a unique reading of the situation that literally no one else has bothered to notice.^[10] Well, fiddlesticks. The Turtles and De La Soul go together like fried haddock and mushy peas.^[11] I could really go for some mushy peas; perhaps, even, some fiddlesticks. You have gotten me off track!^[12]

….

In conclusion, Library, it would be our honor to invite you to a band showcase that we are having at “The Whiskey A Go Go” this evening.  I told the promoter that we could bring at least 37 people and he seemed impressed. We hope you take our considerations to heart when contemplating new additions to your registry.^[13] Again, great work on the Songs of the Humpback Whales pull!

To us being “Happy Together,”

The Turtle(s)

^[2] Are hand soaps not “in” anymore?

^[3] Our lawyers are unclear, as well.

^[4] Well, maybe not “officially” determined, but their large, looming shadow really pushed our cause into the litigious end-zone, so to speak.

^[5] A job well done on choosing Tammy Wynette’s “Stand By Your Man,” for this year’s registry.

^[6] [Ed's. Note: At this point, it seems clear that all but vocalist Howard Kaylan has relocated to the local watering hole in the less prosperous section of the Hollywood Hills.]

^[7] In the settlement, we tried to stipulate that the group change its name to “De Law Soul,” as a constant reminder of the infrastructure surrounding their future creative endeavors, but we, sadly, lacked the clout.

^[8] Our lawyer has repeatedly asked us to ignore the law, and all allusions to it, in responses to this inquiry.

^[9] Please send us the official Dewey decimal demarcation of our LP’s placement.

^[10] A fan commented that it was similar to baseball teams that think they are engaged in an explicit rivalry with the New York Yankees even though they are not the Boston Red Sox.

^[11] [Ed's. Note: Kaylan has gradually affected an East London accent (“Top of the Pops” reruns have been on throughout the making of this transcription). There is probably a correlation between this possibly unconscious behavior and the ingestion of his fifth Pimms Cup.]

^[12] [ . . . Eds. Note]

^[13] Have you thought of doing this more than once a year?  I am in a business class at the Santa Monica Community College and the Professor has stressed that limiting yourself to such few engagements does not, in fact, “up the rarity factor.”

Creative License features interviews with more than 100 stakeholders in the sampling community — from David Byrne, Cee-Lo Green, George Clinton, De La Soul, DJ Premier, DJ Qbert, Eclectic Method, El-P, Girl Talk, Matmos, Mix Master Mike, Negativland, Public Enemy, RZA, Clyde Stubblefield and T.S. Monk — and puts digital sampling into an historical, cultural and legal context.

My endorsement is in no way, shape or form due to the fact that I’m thanked in the introduction. It’s a straight-up awesome book.

Authors Kembrew McLeod and Peter DiCola take a daunting subject and make it incredibly relevant (and readable) for music fans who may not realize how the laws around sampling affect what we’re permitted to hear.

Creative License describes hip-hop during its sample-heavy golden age in the 1980s and early 1990s and the lawsuits that shaped U.S. copyright law on sampling. It also lays bare the labyrinthine licensing process that musicians must now navigate in order to express themselves in this art form. Observing that the same dynamics creating problems for remixers now reverberate throughout all culture industries, the authors conclude by examining ideas for reform.

The scope of questions asked by McLeod and DiCola are fascinating: How did the Depression-era folk-song collector Alan Lomax end up with a songwriting credit on Jay-Z’s song “Takeover?” Why doesn’t Clyde Stubblefield, the primary drummer on James Brown recordings from the late 1960s like “Funky Drummer” and “Cold Sweat,” get paid for other musicians’ frequent use of the beats he performed on those songs? The answers are even more fascinating.

I’m psyched to be participating in two stops of the book tour for Creative License, both of which take place in DC this week.

On Friday, I’ll be joining co-author Peter DiCola at American University for a lecture and a panel discussion:

Friday, April 15, 4:00-6:00 pm in Washington, DC
American University, Washington College of Law

Open reception + lecture/panel discussion, sponsored by the Copyright Society, the Glushko Samuelson Clinic, and the Center for Social Media. Following DiCola’s lecture and multimedia presentation, Professor Peter Jaszi, Jay Rosenthal of the National Music Publishers Association (NMPA) and yours truly will join in the conversation with comments. The event begins with drinks and appetizers at 4:00 PM and is scheduled to end at 6:00 PM. A live webcast will also be available via WCL website. More details and RSVP

The next day, I’ll be leading a Q&A with Peter and moderating the panel discussion at this event:

Saturday, April 16, 5:30-7:00 pm in Washington, DC
Words Beats & Life and FMC present Peter DiCola with Producer/DJ Roddy Rod at Busboys and Poets at 14th & V St NW.

More details and register:

http://futureofmusic.org/events/creative-license-dc

Peter and Kembrew have other stops in other cities; you can see the full list here.

Don’t be illin’ cuz I’m not shillin.’ Don’t believe me? Here’s Chuck D:

The fact that a seemingly simplistic artistic notion — of collecting, meshing, and arranging previously recorded sounds — would eventually result in a sharp and comprehensive book is mind boggling. This study is a work of art in itself, so solid that it may leave no other choice but to be sampled as well.

Word.

Intellectual Property vs. Piracy. Security vs. Openness. Online Freedom vs. Internet Totalitarianism. Two examples of essentially the same tech — the PirateBox and the FreedomBox — capture the cognitive dissonance of the Information Age.

First up: the jihadists of the copyleft, who have designed PirateBox: a portable device for the purpose of creating ad-hoc file-sharing networks. Never mind that it looks like a goth girl’s lunchbox. From the project wiki:

Inspired by pirate radio and the free culture movements, PirateBox utilizes Free, Libre and Open Source software (FLOSS) to create mobile wireless file sharing networks where users can anonymously share images, video, audio, documents, and other digital content.

…PirateBox is designed to be private and secure. No logins are required and no user data is logged. Users remain completely anonymous – the system is purposely not connected to the Internet in order to subvert tracking and preserve user privacy.

…using the PirateBox is easy. Simply turn it on and transform any space into a free file sharing network. Users within range of the device can join the PirateBox open wireless network from any wifi-enabled device and begin uploading or downloading files immediately.

That tracks with what some of my associates, including legendary producer/professor Sandy Pearlman, have been saying for some time: intellectual property enforcement is futile due to “the paradise of infinite storage” and soon-to-be ubiquitous micro networks. (Along these lines, I’ll be moderating a conversation called “The Future of Music: Is There One?” with Mr. Pearlman and other geniuses at both Canadian Music Week and SXSW in March.)

Let’s look at FreedomBox, created by Columbia professor Eben Moglen as a response to foreign government shutdowns of internet access points (most recently Egypt). The New York Times reports:

Put free software into the little plug server in the wall, and you would have a Freedom Box that would decentralize information and power, Mr. Moglen said. This month, he created the Freedom Box Foundation to organize the software.

“We have to aim our engineering more directly at politics now,” he said. “What has happened in Egypt is enormously inspiring, but the Egyptian state was late to the attempt to control the Net and not ready to be as remorseless as it could have been.”

This fits squarely with what the American government has been saying about the importance of open communications platforms to the cause of democracy. Yet the inspiring words of Secretary of State Hillary Clinton are seemingly at odds with other administration and legislative efforts to expand the government’s powers to combat intellectual property infringement. (The Department of Homeland Security has its ICE web domain takedowns; there’s also a bill in Congress that would expand Department of Justice powers to do much the same.)

Reminds me of that ancient Chinese proverb/curse: “may you live in interesting times.” And as one of the biggest infringers of intellectual property on the planet, they should know…

[Note: not Julian Assange]

Yesterday, I was asked by an emissary of a well-known rock band if my organization had any opinion about the recent developments regarding Wikileaks. We don’t.

I, on the other hand, have an opinion about nearly everything.

For those too busy making their list and checking it twice, I’m talking about the fallout from the Wikileaks release of international diplomatic cables. There’s nothing too shocking in the leaks, unless maybe you thought Silvio Berlusconi was a competent straight-shooter. OK, there was some news, namely that China is ready to kick North Korea to the curb. But most of the cables simply reiterated, in slightly less decorous terms, what observers of US foreign policy already know.

That doesn’t mean American power is taking this lightly. Wikileaks founder Julian “you can’t spell Assange without ASS” Assange, has been all but branded an Enemy of the State by US policymakers and pundits. (I guess he’ll have to settle for being called an “enemy combatant” by Newt “I’m still pissed my mommy named me Newt” Gingrich.)

Hey there. Remember me? I’m the guy who used to post here a lot before my job as a Defender of What is Right and Proper took full possession of my mental faculties. Still, here I am: battle-scarred, a bit fatigued but nevertheless prepared to deliver a new screed for your edification and amusement. We call this rant…

In Defense of Recorded Music

You may have heard that the recorded music industry is in dire straits. By “recorded,” I mean physical media, and by “industry,” I mean the record companies. Now, it’s very easy to make this about the majors vs. everyone else, but that’s not entirely accurate. Independent labels sold CDs, too, albeit with a serious barrier to entry in the marketplace due to the major label chokehold on distribution and retail.

Indie labels (and by extension, the artists on indie labels) have also struggled to make up for revenue lost from the declining physical goods marketplace. Download sales are on the rise (as is legal streaming), but the profit margins are much lower due in part to the decoupling of the album format and the inability of the industry to attract new customers — many of whom are members of a generation accustomed to getting music for free.

This is a problem for traditional industry players, as well as musicians and songwriters for whom the sales of recorded media provided a significant and mostly stable revenue stream. Not all artists see the “digital disruption” as a net negative, however. Many creators, this one included, have benefited tremendously from the removal of the gatekeepers that once stood between artist and audience. As has always been the case, talent, creativity, dedication and perseverance are important qualities in the new paradigm. Although we may never see the return of the rock star caste, there is now the possibility of a more diverse and dynamic music marketplace.

But we ain’t there yet. Not by a long shot.

There are some who suggest that musical artists will earn a living from live performances as well as the sale of “scarce goods” such as unique or limited edition music packages and road merch. I have a real problem with this theory for a number of reasons.

First, it puts a premium on live performance, an activity that many musicians enjoy but some — including this guy — don’t particularly care for. Neither did the Beatles. Or Steely Dan. Or Andy Partridge of XTC. Or Brian Wilson… I could go on and on, but the point is this: these artists depended on demand for their recorded music to propel their creativity. Even if they were in a shitty deal, that contract was an incentive to make new art. Perhaps the songwriting/publishing royalties paid the bills. Either way, it was the product that produced the return — creative or economic.

Second, the lack of revenue from recorded music affects the live music market, as more “successful” acts demand higher returns from performance — a cost that’s eventually passed on to consumers in the form of 15 dollar beers at the Enormodome. Smaller artists are forced to compete in an glutted marketplace in often less-than-ideal working conditions. Oh, and what if you’re a songwriter? Yes, they still exist. But they aren’t really known for selling t-shirts, are they?

Third, there are limits to how many “scarce goods” a developing or niche act can sell on its own. I do OK, but I also have a day job. Trust me, these goods take time, energy and capital to produce. Without the necessary investment and promotional expertise, it can be difficult to create and market specialty wares. Some artists may be at a disadvantage here, as doing so requires a different skill set than composing, playing an instrument or singing. I wrote a short story for one of my records, and I make videos for a lot of my songs. What if I was just a really amazing tenor saxophonist?

Is the new music marketplace a form of digital Darwinism, in which artists with certain skills thrive while others drop off? It might not be a bad thing if more people quit playing music, but I very much doubt that’s gonna happen anytime soon. What’s more likely is that we’ll see more part-timers and so-called “hobbyists,” a phenomenon that thrills some and annoys others. (I hate the term “hobbyist,” because I’m a seasoned professional, even if I don’t compose or record full-time.)

As I mentioned, many loathe the very idea of “amateur” artists existing on the same platforms as “professionals.” But given the manufacturing of consumer consent that took place at the industry’s peak, I’m not sure the distinction was ever more than arbitrary. Every generation has its Beatles, and every generation has its Milli Vanilli. Some folks need to be told what to buy, and some excel at that making the sale. The rarity is when art and commerce occupy a singular point in space-time. I call that the 1970s.

The real issue with the mainstream biz is that the major labels no longer know how to sell.

In all honesty, the majors’ true customer was never the fan. The customer was the corporate radio PD who determined playlists for entire swaths of the country due to the consolidation in station ownership. That guy required certain “enticements” to even consider spinning your Vertical Horizon track. The customer was the chain record store who could be cajoled into buying quantities of the new Good Charlotte album to keep shareholders happy. The customer was the promoter willing to pay more than 100 percent of gross to the act based on pay-to-play broadcasting and “units moved” (and ultimately returned to the warehouse).

In other words, the game was rigged.

Now the cat’s out of the bag, the genie’s out of the bottle, and you can’t put the toothpaste back into the tube, no matter how hard you try. None of this is to say that recorded music doesn’t have value. It has tremendous value. It still makes people dance, cry, laugh, remember long lost loves, wanna kill, fuck, dream, drive, die, LIVE.

Which is why I refuse to give up on it. We will find a way to make sound captured in a fixed media a meaningful cultural/spiritual artifact. And when we do, the economics will follow. Until we realize that recorded music is ART, there is no hope. If it takes the entire collapse of the current industry, then perhaps it’s simply creative destruction. As a moderate, I don’t believe in the necessity or inevitability of such an outcome. I know too many good people who still work in the business of selling recorded music to wish further uncertainty upon that sector. And I’m heartened that these same good people are the ones who get the basic fact that music is expression first, commerce second.

We’re all in it together, us artists, fans and creative entrepreneurs. And together we will achieve what has eluded the “industry” for more than a decade. We will make recorded music matter again.