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Ripped Off?

Thursday, December 10, 2009

Is the wired generation revolutionizing or undermining music?

On June 18, 2009, a Minnesota jury awarded six record labels a whopping $1.92 million dollars after finding that Jammie Thomas-Rasset, a 32-year-old mother of four, willfully infringed their copyrights by downloading 24 songs from the Internet and making them available for others to download.

This marked the latest, but certainly not the last, chapter in a lengthy saga for Thomas-Rasset, who was initially ordered two years ago to pay the studios $222,000, yet successfully moved to wipe out the first verdict when the judge found that the jury award was “wholly disproportionate to the damages suffered by the plaintiffs” (imagine his thoughts now that the second award is an order of magnitude greater than the first) and that Thomas-Rasset’s “alleged acts were illegal, but common.”

Greg Kot dwells on the judge’s eye-opening 2007 ruling in Ripped: How the Wired Generation Revolutionized Music as a kind of missing link in the evolution of digital music distribution, a sign that the legal system—at long last, in his view—has joined the “real world,” where downloading music isn’t stealing but something far more complex and nuanced and where everyday people like Thomas-Rasset (a sympathetic defendant if ever there was one) stand up to powerful corporations.

Ripped strives to be a contemporary music downloader’s manifesto, and in that respect, it succeeds.

But unfortunately for Kot, his book was published about a month before the second Minnesota jury threw the book at Thomas-Rasset, and it’s therefore he, not the knuckle-dragging defenders of the intellectual property status quo, who fails to appreciate the shades of gray in the ongoing debate about content, intellectual property, and technology. Kot cannot, of course, be faulted for not incorporating the latest Thomas-Rasset verdict in his book, but these kinds of crossed wires ultimately prove most problematic for the author’s arguments.

Ripped strives to be a contemporary music downloader’s manifesto, and in that respect, it succeeds. The book is a wide-ranging, entertaining, and well-informed tour of all aspects of the digital revolution in music (and then some) that opens the eyes and minds of even the most cutting-edge readers.

Kot, the longtime music critic for the Chicago Tribune, possesses an extremely broad and deep knowledge of contemporary music, and he’s at his best when evaluating songs, albums, and performances. His evocative diction represents a near-perfect verbal analogue of musical poetry (an illustrative example is his description of Trent Reznor’s 1999 release “The Fragile”: “spread twenty-three widely varied, scrupulously detailed, yet unusually spacious songs across one hundred minutes on two CDs”).

The author is also most in his element when touring with or interviewing bands such as Death Cab for Cutie, Conor Oberst of Bright Eyes, and other groups. Kot’s an expert interviewer, and his discussions with the likes of Oberst bring out the energy, excitement, and authenticity of the start-up band.

But on what possible basis does one assume that bands would rather enjoy ‘general support’ and ‘growth’ than, say, a revenue stream?

But as persuasive rhetoric, Ripped falls short, perhaps because the vast majority of its readers will be inclined to agree with its arguments in the first place.

Take music downloading, for instance. Kot quotes David, a Chicagoan unconcerned about the impact of his downloading: “I feel that I may be doing a band more good by telling every single person I know that ‘this band is good’ and giving out their music,” rather than actually paying for it. “For growing bands, the general support, the growth, is better than individual album sales.”

But on what possible basis does David assume that bands would rather enjoy “general support” and “growth” than, say, a revenue stream? Multiplying even huge numbers of free downloads by zero still yields zero. This post facto justification is reminiscent of the old joke about a store giving its products away for free. “How do we make money? One word: volume!” And with the advent of user-friendly, inexpensive, and legal downloading websites and services like iTunes, there’s no longer an ethical justification (if ever there was one) for copying music without authorization.

Similarly, Kot rightly praises artists such as Prince, the Cure, and Neil Young, who attained success by launching their own independent distribution and promotion channels.

Periodically following Prince on the concert trail this decade—an era when the “formerly known” artist was selling millions of CDs and generating hundreds of millions in revenue without the assistance of a major label—Kot has nothing but praise for what he saw as “high-level entertainment, delivered by a great band led by a genius maverick in Cuban heels.”

With the advent of user-friendly, inexpensive, and legal downloading websites and services like iTunes, there’s no longer an ethical justification (if ever there was one) for copying music without authorization.

But this recitation encapsulates the problem with Kot’s analysis. Prince is indeed a maverick, an artist willing and able to work outside the organs of the mainstream music industry. The same goes for small bands with cult followings on the Internet who have also successfully bypassed ordinary distribution channels.

Yet operating outside the industry framework is fundamentally different from directly challenging it. While Kot ably dissects the online sales achievements of artists like Trent Reznor and Radiohead, who have experimented with flexible website sales and tiers of variable bit-rate downloads, those folks, like Prince, parlayed their widespread studio-induced popularity into the post-industrial setting of the Internet.

By contrast, even in this digital age, no artist has yet emerged exclusively through new media and outside mainstream channels like the studios, the concert promoters, MTV, or “American Idol.” That’s not to say it can’t or won’t happen, but we have a long way to go until it will.

There’s also no question that digital distribution has helped revitalize an otherwise moribund music criticism apparatus, as Kot nicely documents. While Rolling Stone and its ilk have seen double-digit declines in their ad revenues, online magazines like Pitchfork have swelled to fill the vacuum. (Yet even here, Kot acknowledges how bands that ezines like Pitchfork helped popularize, such as Arcade Fire of Montreal, snubbed the online magazine’s 2005 Chicago concert for the larger, more corporate Lollapalooza.)

Kot also devotes a chapter to digital music sampling, where artists weave together threads of older songs into a crazy quilt of new content. In Kot’s telling, sampling is a tradition as old as the hills and only became controversial in the 1990s, when record companies began demanding royalties from artists laying down new tracks on top of old ones.

While sampled music is undeniably creative, and some of it quite clever and enjoyable, it plainly trades on content created by others.

But while sampled music is undeniably creative, and some of it quite clever and enjoyable, it plainly trades on content created by others. Indeed, as Kot observes, sampling fans derive pleasure primarily from the juxtaposition of starkly disparate musical traditions, like Hall and Oates with the Wu-Tang Clan, or “The Grey Album,” DJ Danger Mouse’s mashup of The Beatles’ iconic “White Album” with Jay-Z’s 2003 “The Black Album.” Such juxtaposition is impossible without the underlying tracks, and that music, too, deserves its due.

Kot offers a creative solution to the contemporary problems posed by sampling. Instead of charging an exorbitant lump-sum license fee for their music—often an insuperable obstacle to emerging no-name spinners with low tolerances for high start-up costs—artists should accept an ongoing royalty from any sales that the sampler makes. This aligns the incentives of the original and the derivative artist: make quality music that sells. The downside, of course, is that cacophonous mashups may pummel the underlying work, harming the original artist’s interests.

And unfortunately, Kot also feels obliged to include a chapter on the music of political dissent and anti-war themes, whose long historical tradition makes it an unlikely candidate for inclusion in a tome devoted to the new content that emerging technology makes possible. What “George Bush Doesn’t Care About Black People,” the Dixie Chicks’ anti-Iraq War outbursts, and songs sympathetic to John Walker Lindh, the American Taliban, have to do with file sharing and sampling goes unexplained. But Kot can’t seem to resist the opportunity to bash Bush, however misplaced geopolitics may be in his book.

Still, Ripped has much to commend it. If nothing else, it opened my eyes to new artists and musical traditions. I even went straight to iTunes to legally download them. What a world we live in.

Michael M. Rosen, a contributor to THE AMERICAN, is an intellectual property attorney in San Diego. Reach him at michaelmrosen@yahoo.com.

FURTHER READING: In “Twitter Takes Tehran,” Rosen discussed how web 2.0 tools have impacted restrictive regimes. He and Thomas Van Gilder asked whether mobile devices liberate or enslave us in “Lord of the Ringtones.”

Image by Darren Wamboldt/Bergman Group.

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