In the issue of Wired focused on music licensing, and the future of copyright (the one with the CD attached to the cover), Hilary Rosen wrote an article entitled “How I learned to love Larry“. What it really should have been titled is “I hate that people cross the street when they see me, and I’m trying to prove I’m not really that bad”.

First off, you may remember Rosen as the head of the Recording Industry Association of America (RIAA) until recently. The RIAA, according to it’s mission statement:

is the trade group that represents the U.S. recording industry. Its mission is to foster a business and legal climate that supports and promotes our members’ creative and financial vitality.

Wow, “foster a legal climate”… that really makes me feel all warm and fuzzy.

Long story short, Rosen is clueless. She is clearly not a visionary. I wasn’t able to determine after a cursory Google search whether Rosen is a lawyer, but I’d bet my money she went to law school and not business school.

In the early days of the Internet, it was hard to not fall into the trap of classifying everyone you knew and met as people who “got it” or “people who didn’t”. Even that reference will seperate people who remember struggling to explain how a single, long, stone-background, blinking icon page was the future of commerce…before Amazon even existed, and those who don’t get my point.

Rosen is clearly one of those old school thinkers who is only now starting to understand what consumers have been screaming at her for years. When consumers said “We want more freedom”, she said  “This house believes that the free-music mentality is a threat to the future of music.” Uh, what? threat to the future of music? Name a time since the Beatles when so many people are really getting into music. How many iPods were sold last year?

But Rosen, with her Wired article is trying to backtrack herself into looking better with this Wired article. Let’s take a peek at what she’s written, shall we?

Until that moment, I had dismissed Creative Commons as a sleight-of-hand maneuver, a way to mouth platitudes about the benefits of copyright while in fact joining ranks with the Everything for Free Foundation. But Lessig was making a persuasive case. This is going in the wrong direction, I remember thinking. Had I lost my edge?

Again, if she’s not a lawyer, she hangs out with too many. This is typical lawyer thinking: “They aren’t lawyers in the music industry, so they couldn’t possibly have come up with anything good”. And honey, the reason you didn’t understand is not because they sucked at explaining the idea – it’s because you didn’t pay the slightest bit of attention and are likely not capable of seeing the bigger picture until it’s run you over. And “Everything for Free Foundation”? Perhaps you meant to say the “Electronic Frontier Foundation“? Your snide joke isn’t appreciated or funny. They push back on the RIAA so hard because the RIAA is pushing on everyone so hard. I’m sure they’d agree to back down if the RIAA would. But while you’re suing your customers, that’s not going to happen. This idiotic point of view is the same one that people use to argue that the politicial party they don’t agree with should also go away. It was stupid in the Fall of 2004 and it’s stupid now.

Hardly. I’m still cynical about its origins, but I’ve come to love Creative Commons. The organization seeks to calm some of music’s roiling waters, from unlawful sampling to file-sharing.

Who gives a shit what you think about their origins? Get over it, and get over yourself lady.

As the RIAA continues to use the courts to discourage the illegal, widespread distribution of songs through peer-to-peer systems, there has been a chilling effect on other, legitimate uses.

First of all, it’s a pretty big myth on nearly every study (except those done by the RIAA) that P2P leads to any real damage to sales, or anything else.

Many musicians and consumers fear reusing pieces of others’ songs – even for noncommercial purposes. Nobody wants to get caught in the crosshairs of industry lawyers.

Uh, yeah! This is what you started, lady. This was the plan all along. So when you’re with the RIAA it’s all about using this approach to stop exactly this. But when you leave the RIAA and are trying to recraft your public image in order to get another job, you’ve suddenly determined that YOUR strategy is a bad thing? If so, then have some guts and admit it was a bad strategy.

Licenses from Creative Commons allow musicians to dictate how their music will be used – even if they sign with a record label (as long as the CC terms are part of the contract). Some artists want their music distributed as widely as possible, with no payment or control requirements; for them, an unlimited CC license is a way to declare these intentions.

You know, I’ve been struggling for all these months to figure out what the CC was all about. But thanks to Hilary Rosen, I now understand! Thanks for helping us all out! But seriously, after a complete and obvious lack of understanding about the CC for much longer than most anyone else on the planet, it’s sweet to see that you’re trying to help us all understand what you now know and we’ve all know for months/years.

(Note: If you were ever on the fence about whether the music execs think their consumers are stupid, the answer is: YES)

For all its promise, there are challenges CC can’t address. The biggest problem in commercial sampling isn’t that artists don’t know how to give away pieces of their work; it’s that they and their producers want to get paid more – a lot more – for smaller bits of their songs. Think George Clinton, not Gilberto Gil. And unlike a book, where an accessible, online version often whets a reader’s appetite for the paper version, there is little appetite for another copy of the same song – most music sold online is in song format.

Man, there’s that genius business mind at work. “Our current business model doesn’t work in this new world you want to see happen, so you’re new world is stupid”. Clearly, she’s never read Experience Economy. It’s not only about the one song. It’s about music. It’s not about selling a single album or a single song, it’s getting consumers to buy music, devices to play it on, and goods like you’ve never seen. The digital download doesn’t do away with the CD. The CD changes it’s purpose. Where it once was a delivery device alone, it’s now a  souvenir of the experience. Perhaps if the industry put the same effort into improving that  souvenir instead of whining about non-slipping slipping CD sales, you could actually make more money.

Can you imagine a Random House Publishing (to pick someone random) suing public libraries for helping their consumers to steal books? How is this different? Does the book industry suffer from libraries?

There’s no point in assuming you can sell copies of the same recording you’re giving away.

Why is there no point? I think that’s a ridiculous and horribly incorrect statement. I could have downloaded the new U2 album off of iTunes for about 1/2 the cost of the CD I bought. And when I realized I didn’t have the deluxe edition of the CD, I immediately added it to my Amazon wishlist.

Will it whet a listener’s appetite for a concert ticket? Sure, but those who benefit from the sale of concert tickets rarely invest in the recording.

Meaning: Since the record companies don’t make money off of concerts, they dont’ give a shit. What she doesn’t mention is that artists make a tiny fraction of the money a record company makes off of their albums. They make money on the concert circuit. I mean, think about this – who in their right mind would do a 10-20 week, or more grueling concert tour if they already had plenty of money from album sales?

Meanwhile, as I have long predicted, the music industry is slowly restructuring itself.

As you have long predicted? I thought your sole purpose at the RIAA was to ensure that the music industry was able to continue doing business as usual, via strategy of going to war with your consumers. Did I miss something? For our home audience, this is called “Revisionist History”.

Artist contracts are for shorter duration, and every facet of an artist’s output is up for negotiation. Indeed, artists have more control than ever before, giving rise to, in some cases, business models with the artists as the central business unit, in effect buying the services of middlemen to execute promotion, recording, and distribution. Increasingly, free use and access are employed to stimulate sales. Prince signed a one-record deal with Sony Music that made sure he could give a copy of his CD to every fan who bought a concert ticket. Pearl Jam left its longtime label to release a live album through its fan club. It has also authorized multiple releases through a bootleg program. The band hires services from the labels, as needed. Given these changes, the industry ought to embrace Creative Commons as an agile partner providing tools for new ways to do business.

Are your eyes firmly rolled to the back of your head? Because of the changing business and consumer culture that the consumers are heaping on the music industry, artist have been able to take advantage of that in order to upset the power balance that the RIAA has tried to maintain. Ms. Rosen, this isn’t happening because of the wonderful efforts of the RIAA or the music industry, it’s happening very very much in spite of them. Why did Pearl Jam leave its long time label? Likely because their label couldn’t or wouldn’t do what they wanted to do. With cheap duplication, digital distribution, and easy access to the fan/consumer base Pearl Jam, and other bands are finding the music industry isn’t as necessary as it once was. Your reaction has been litigation.

But let’s not go too far into dreamland. Yes, the current system of copyright can be antiquated and user unfriendly, and its enforcement can be discriminatory, but it has created a lot of wealth for individual artists, not just corporations. More important, it has created a vast body of art for the public. Let’s not dismiss it wholesale.

Dreamland? This is “Dreamland”?? Example #543 on why Hilary Rosen simply doesn’t get it. This isn’t Dreamland. This is happening. Now. And as far as the system being so wonderful, whatever. We’re not talking about dimissing it wholesale – you are. Again, you just don’t get it. Consumers aren’t asking to burn down the music industry. We’re asking that you treat us like people, not marks. We’re asking you to respect our wishes and ont sue us when we don’t listen. We’re asking you to back the fuck off and work with us, not against us.

Yeah, that Dreamland. (Some call this good business… but those people have business competence and the ability to create strategy plans not just litigation plans)


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