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<li><span style="color: #000000;">MP3.com logo, <a title="MP3.com logo, Fair use" href="http://www.copyright.gov/title17/92chap1.html#107" target="_blank"><span class="comment">fair use doctrine</span></a>.</span></li>
<li><span style="color: #000000;">MP3.com logo, <a title="MP3.com logo, Fair use" href="http://www.copyright.gov/title17/92chap1.html#107" target="_blank"><span class="comment">fair use doctrine</span></a>.</span></li>
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==Comments==
19 Responses to “ The more things change… ”
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Jon Awbrey
Absoulootely Brilliant Analysis!!! Best thing I’ve read about the dynamix of web phenomena in 5 years. Give Paul a raise immediately.
Jon Awbrey
Paul Wehage
Thanks, Jonny! (If Greg gives me a raise, we won’t be able to afford beer and pretzels at our next board meeting, but I appreciate the thought!)
Gregory Kohs
I’ll take this as a quick opportunity to add my praise for Paul Wehage’s thoughtful narrative, but also to remind readers that I’m not the one to dole out “raises” to our Board members (who, of course, are all volunteering without compensation for this non-profit enterprise).
The corporation was founded by four people, it was formally registered by Anthony DiPierro, and if anything, I merely had the not-so-original idea of creating an Internet review site where the ownership would be split between multiple, real-name-identified individuals. Imagine that — accountability.
I’m happy that Akahele is resonating favorably with most everyone who reads it. I had a feeling it would.
W.R. Somey
I was impressed…!
A lot of this is still going on, actually. “Vanity-distribution” sites like tunecore.com and iodalliance.com make it possible for anyone to get their music onto practically all the major digital-distribution sites, including iTunes, for a small fee and a percentage. Nobody actually listens to the material that’s being distributed in advance, so the artists can categorize it however they want (i.e., wrongly), and of course there’s no quality control whatsoever. Some listeners don’t mind so much because you can occasionally find a gem amidst all that dreck, but the downside is that it becomes very difficult for talented new artists to stand out when there are hundreds of new releases every day, and none of the actual download sites are paying much attention (though I will say that eMusic does a better job than most, and of course, iTunes handles it by simply ignoring anything that comes from a vanity-distribution site).
I remain pessimistic about the future of music as a way for people to make a living, but folks are still going to try… Another interesting new MP3.com-like scheme that’s appeared recently is amiestreet.com, which has a rather unique and convoluted rating/recommendation and pricing scheme – it’s too complex to describe here, and there’s a good chance it will fail too, mostly because established artists won’t want anything to do with it. But in some ways, it’s what MP3.com should have been, and maybe would have been if they’d thought things through better at the outset.
Emperor
Excellent article. It’s good to hear things put into perspective.
Great job with Akahele. So far, it’s the kind of site I wouldn’t be embarrassed to tell my friends to go read.
Maybe someday I’ll comment here under my real name.
Darby Lines
Paul,
I just wanted to pop in and say that this is a brilliant analysis. Also, I’d like to thank all involved here for this effort. As a disaffected wikipedia reviewer, I’m very much looking forward to a place where some responsible adults can comment on these issues.
Alison Cassidy
Excellent analysis indeed. Well done, Paul!
Paul Wehage
@Somey, actually quite a few things which look like “non-vanity” labels actually are “vanity” labels, if you know the business. We call these types of recordings “artist calling cards” since they’re basically used for people either to get University jobs or gigs. Nobody really makes any money off of them (except for composers and publishers who do get broadcast royalties and mechanicals), but they are indeed useful for other reasons.
The only way anybody makes any money in music these days (outside of teaching) is if you do everything yourself, as in have your own label, release your own recordings and manage your own concert work. Many successful classical artists do just this and, even if they’re not rolling in the dough, make enough to live upper-middle class lives. It’s a lot of work though and requires a great deal of energy. Many people would rather just dump their masters into the hands of a label and not worry about sales etc–you make your money off of concerts anyway. Of course, because of this, most of these artists fail WP’s notability requirements (because they’re self-published), but that’s simply because WP hasn’t figured out that this is the new norm.
It’s real life concerts that make the difference these days in terms of separating the wannabes from the real talents. You can’t just rely on the web to make your reputation, especially these days when anybody can sound great on a recording, at the press of a button.
The really incredible thing about mp3.com was that for two years (and perhaps for the first time in the history of music), there were people who did make their living from recordings who did everything themselves; without management, without labels. That’s not happened before or since. We (as a community of musicians) really blew it by making the wrong choices. I’m not sure if it could have been changed, but it was a really exciting thing to be part of that.
@Emperor, Darby and Alison, your comments are greatly appreciated.
Dan T.
Pretty nice piece. But, since I don’t share the antipathy to anything in the “geek”, “cyberlibertarian”, “Web 2.0″ mode that’s common on sites like this, I’d prefer it without the preordained conclusions that the way to go is to conservatively follow the way things have been done for 100 years in other media, like “What should have happened at this point is that MP3.com should have started paying into Performance Rights Organizations such as BMI and ASCAP to cover regular performance and mechanical royalties”, like making any attempt to come up with a different business model was some sort of sin that the site was justly punished for.
What your article shows is that systems will get gamed and abused by people, sometimes enough to doom the entire project. Sticking to the way things were done a century ago might be one way to avoid this (those old systems get gamed too, but clearly not enough to make them collapse, since they haven’t), but this is no guarantee of continued success either (ask the buggy whip industry, if it were around to ask); sometimes times change and it’s necessary to adjust, even if this involves trying and failing at new ideas before something better is eventually arrived at.
Paul Wehage
@Dan T. Thanks for your thoughtful comments. This is kind of like writing a paper about the French revolution: you already know that Louis XVI gets his head chopped off in that story. The interesting question is whether or not anything he did before could have been changed to make the end of the story different.
In this case, I already knew why mp3.com got sued by Universal: because they weren’t following copyright laws and thought that they were protected by the “new technology” and that their innovative business model made them immune to these laws. The lawsuit proved that they were wrong. If they had “conservatively” followed the usual practice at the beginning and had gotten licenses from BMI/ASCAP/FOX for everything on the site, Universal could not have sued them. Since they thought that “Beam it” was covered under “fair use” (are you listening, Wikipedia?) and that they had free licenses for the rest of the content, mp3.com thought that they had their bases covered. All of this could have been avoided.
The whole point of that passage being that although the law takes awhile to catch up with new technology, it eventually does. Innovative technology and business practices sometimes do give innovative operations a bit of slack, but not always…and not forever. Being the “new thing” is not a license to do whatever you wish without bothering to follow the rules.
On pps 115-116 of her article “Cyber Civil Rights” (which can be downloaded here), Danielle Citron gives a very interesting model of how the law adapts to new technology. At first, the risk is identified. Secondly, a more permissive period begins where the law allows the new technology to flourish. Finally, in the third stage, the law sees that ligation is not going to hurt the emerging technology and starts accepting cases, which leads to lawsuits which drive some out of business, but not all. I believe that this process is what happened to mp3.com. I also believe we are currently going from stage 2 to stage 3 in community-driven web 2.0 websites. This is a theme that I will be exploring in future pieces.
David Holley
Interesting and thoughtful analysis. It seems that yet again a lack of control over content contributors inherent in many “crowdsourced” applications, combined with a refusal to recognize these problems as they arose, led to the downfall of something which had the potential to be successful.
Hopefully subsequent articles will continue in this thought-provoking vein.
Dan T.
The people running the site didn’t believe themselves to be breaking the law; they had a reasonably sensible argument for their activities being covered under fair use. Unfortunately for them, the judge didn’t agree, but it was impossible to predict this in advance; they gambled and lost. It doesn’t seem to be so much of an open-and-shut case as you make it to be.
Paul Wehage
@Dan T. I never intended to imply that Universal’s case against mp3.com was “open-and-shut”, as a matter of course. In many ways, in much the same way that Wikipedia is at the top of its game today, Mp3.com was untouchable: a wildly popular and profitable website, an army of artists to do the promotion and content creation, a profitable business model, and innovative use of technology.
The problem is that the story did indeed end the way it ended and mp3.com’s servers were erased. That’s what happened, so mp3.com was not reasonable in implying that they were protected by “fair use” because they weren’t.
No one could have “known” this in advance, but one can know it after the fact. And the process seems to be common enough that other legal scholars have identified it and are applying it to other cases. This hypothesis seems to have validity in that sense.
Kato
This is an excellant blog post, by the way. I think I’d grown used to the repetitive and frustrated critiques we usually read and write on the Wikipedia Review, and was refreshingly impressed here.
Much food for thought, and the piece has significantly impacted on my thinking about this whole business.
Great start, and good Work.
Paul Wehage
Thanks, Kato!
I think that it’s extremely useful to take a few steps back and get away from the focus on Users that is so prevalent on WR to look at the larger patterns. I think that there are many “larger picture” issues that can be uncovered through this type of comparative analysis…and at the end of the day, the problem is not what one user does to another, but what the whole does to society.
Jon Awbrey
Preacher, Choir.
Choir, Preacher.
Anthony DiPierro
I don’t think that licenses from BMI/ASCAP/FOX could have saved mp3.com, because these licenses would have only covered broadcasting, while what mp3.com wanted to do with “Beam It” was duplication and distribution (and thus not covered by statutory license).
Maybe they could have negotiated licenses for each song/album, one at a time, like Apple has now done for iTunes. I was under the impression that the vast majority of record labels were still under the delusion that they didn’t need to embrace these new technologies, though. Maybe I’m wrong on that point – I didn’t realize that many/most of the record labels other than Universal negotiated an out of court settlement.
In any case, mp3.com opted for the wiki wiki path rather than the akahele one. And that made all the difference.
Thanks for the great post, Paul. You’ll be a tough act to follow.
TCO
Read BURN RATE. I read it in 1998 and already knew the dynamic at that time. Wolff talks about “chat” versus “edited content”. Chat ruled then and now. Web 2.0 is just Wolff’s chat.
Les McQueen
Thank you Paul. Tremendous article.
Tragic really, the demise of such an inspirational site. Fond memories.
For a moment mp3.com really did offer a new way for musicians and songwriters. People often misunderstand what motivates ‘artists’. The power of the community there, the previously unknown opportunity to be heard and appreciated by an audience of other music lovers across the world meant a huge amount to many people. Empowering stuff. Mp3.com mattered.
Yes a few people were making a living (and yes things did get stupid with the gaming), but I don’t think the emotional return that the site offered artists should be overlooked. That was the saddest thing about mp3.com disappearing, all the connection, all the interaction, the kudos, the culture, the community, the esteem, all the relevance rendered irrelevant at the flick of a switch.
Back in your box you unsigned twats (twatter perhaps)
It’s a shit business.
LM
