Wired News has a nice summary of the Future of Music conference, covering Glaser to panels to more.

For the last few years, if you wanted to launch an downloadable music store it was a given that you needed licenses from the Major Labels in order for analysts to not think your service would be a "non-starter" or investors to think the service had a chance.  Thus all the advances and dances of the late nineties.

And now, when you visit the marketing page for any of the new services, you find blurbs like the following from Sony Connect:

"A great selection of independent music from dozens of independent and international labels, along with all five majors."

1> Why do the services highlight the availability of Indie music, while the Market cared only about major acts?

2> Could a wiley economist use data from the new music services, regarding the percentage of tracks sold that are not from major labels, to argue for some failure in the "free market" mechanism that is the traditional retail outlet (or radio station)?

Walter McDonough General Counsel, FMC (moderator)
David Carson General Counsel, US Copyright Office
Christian Castle Senior Counsel, Akin Gump Strauss Hauer & Feld LLP
Barton Herbison Executive Director, Nashville Songwriters Association International
Siva Vaidhyanathan Assistant Professor, Department of Culture and Communication, New York University
Suzanne Vega ASCAP songwriter, performer

Suzanne
Tom's Diner.  An accapella song.  Three years later, I was told these three guys "stole my song", put it to rhythm and released it.  We should sue.  Instead , I listened and loved it.  We released the tune and got a top ten tune.  I think I might be well-versed in this area.

David
The copyright issue.  Can someone take your work, include it one of their own, without your permission.  The copyright law is clear.  Is there anything to get them off the hook - fair use.

Christian
When we created the sample policy at (record label x), we tried to setup rules for samples.  What surprised me was the objection to the restriction requiring artist consent.  It seemed surprising that artists would object the having to get permission from another artists regarding the right to use their work.

Moderator.
Is this an anti-colorization issue?  Does copyright law inhibit culture?

Siva
It would because now with P2P, it is not so clear that "underground" will remain underground.  Martin Luther did not expect his thesis to become public - it was posted in Latin.  His words were translated into German, put on the P2P of the time - the printing press - and before you knew it, Calvin was writing about the misgivings of the catholic church.  Once you place anything on a medium, if it is powerful, it will get spread around.  If such a practice is so culturally powerful, but so clearly illegal in the courts, are the set of laws designed to disseminate info in the public.. are we now ignoring cultural opinion.  The DangerMouse may be a transformative work, which is unique from a derivative work- not likely to replace a purchase of the primary release.

Suzanne
I dont think the copyright stands in the way.  The Beatles have the right to say no.  That is more important than DangerMouse's ability to re-create it.

Siva
What about Bernstein remixing Shalespear for West Side Story

Suzanne
Several centuries separate the two.

David
At the core of copyright, is some moral right.  Moral rights is that I , the author, I am its father.  I have control over its destiny.  You cannot pass this work off as your own, or you cannot take my work and butcher it - even if the butchered work is better

Suzanne
But it also works both ways.  I really have only said no when some porn channel requested the use of one of my songs.  This is a much wider market for use than we are admitting.

Christian
In my experience, it was very very very rare that an artist ever said no.

Example

Christian
People turned it down when they had strongly held views about "social' issues.  A female artist would not want to be interpolated into a mysogenous rapper track.  Or a religious writer, not wanting their work used otherwise.

Siva
The state has admitted minimal intervention within political realms.  As much as I might object, I think Bush has the rights to use any work he wants for his campaign.  Birth of a Nation is now a public work and we can now redo these works and challenge them.  DJSpooky takes this piece and exposes it.  Gone with the Wind was revised into the Wind Done Gone - but only survived by claiming it was a parody.

David
The courts use the word parody when they want you to be able to do it.

Moderator: what about bad taste.  Should taste/quality of the derivative work be a part of the equation.

Siva
The law should not be making cultural decisions.

Suzanne
I don't make a judgment on taste.  I do object to parody often, even though it is legal.  I like the lemonheads version of Luka.  My manager thought it was trashy.

Moderator: What is your criteria?

Suzanne
It is visceral.  Can I identify with it?  Does it make me laugh, cry.  Its intuition.

Moderator: JayZ comes from a culture of sampling, the Beatles do not.  Is this a cultural divide.

Chris
The open use of samples is of value to HipHop aritsts, so it makes sense they want these laws to weaken.  The Beatles do not share this ideology.  The artist should be allowed to decide upon their opinion.

Siva
They did sample in Revolution #9.  They did do a unauthorized cover of Twist and Shout.

Chris
It was authorized.

Siva
Because the law made it authorized

Chris
No.

Moderator: So I want to do a ska version of Yesterday?  Where do you draw the line.

David
If you materially change the work, you are in trouble.

Moderator: is there a precedent in the license of lyrics and music.

Chris
The difference between the compulsory on pre-release of songs and a compulsory sample license is that songwriters made a bargain.  Another release increases the value of a work, as long as you don't change it radically.  With a sound recording, the persona of the artist, the sound of their voice, the grit of their work, the fame of the track is being associated with the new work.  People don't ask because they think the artist will say no.

Moderator:  What if the work is non-commercial?  or capped under a certain number of releases.

David
I think we could have a reasonable discussion on this.  Copyright is a question of control.

Siva
Unless your goal in copyright is the work of the next artist.

Chris
Why don't you just do something new.

Chris
There is a de facto license that is out there.  The so-called "fine art" license.  If you create a derivative work on the fly, real-time for a club and press some discs for a DJ club.  I don't think anybody is going to say "yes that is fine", but they also are unlikely to do anything about it.  But to say that is acceptable to make these recordings over and above the rights of the original copyright owner.

Bowie has offered up his masters with mash ups as a contest. - mashing up old bowie with new.  But they are all the same bowie.  He is allowing people to sample in a controlled way.

Siva
That sounds really boring

Chris
You don't have to do it.

Suzanne
Its boring because it is not illicit.  It would be more dynamic with works from other artists.

Questions:

Senator Norm Coleman

I have found it exceedingly difficult to deal with guaranteeing the future of music given the technology moves quickly and the law moves slowly.  This effort to get law, technology and ethics in sync is extremely difficult.

The answer is not going to come from Washington.  I appreciate what is going on here cause we need the action at the ground level, from which we can make adjustments.  They said Disco would never die, and it did.

There are three monving parts

The technology is changing.  The consumer is changing.  The entertainment industry is changing.  and each wants the law to help them achieve their goals.

The local record store is an historic throwback.  Brick and mortar has become click and order.  Recent declines in music sales remind me of falls in sales of iron ore.  Consumers are going to drive this economy even if they only have learner's permits.  Can we hang on to old business models.  If so, how long.  In my view, suing your customers is not good business.

The DMCA may have altered the course of Copyright law.

P2P is here to stay.  You cannot blame them for the spread of technology - are you going to shut down the internet.  I am concerned about their ability to get into your home, via your computer.  My records are on my computer.  The principal purpose appears to be the illegal transfer of copyright materials.  We cannot ignore this while highlighting some beneficial uses.  But the music industry is going to have to work with the p2p providers.

HR4077 - with criminal penalties for the reckless disregard for copyright.  We should be wary of the power of government at this level.  It is proposed to use the FBI to ferret out downloading activity.  If there is another terrorist attack, and we were to have to ask the FBI how are you allocating resources - in the midst of issues of national security, should the resources of the FBI used for controlling illegal downloading.  I think not.

S2237 - The so-called pirate act.  Shifts the litigation of piracy to a civil act.  I recognize the desire to change behavior.  On the other hand, using the power of government here I have a similar concern.  There has to be a better way than using the resources of the government to solve this issue.

The government may require that P2P service inform people that transferring copywritten files is illegal.  If the paradigm is changing with technology, then we should change the paradigm of solutions.

Here in Washington, water is free- but it may have lead in it.  People will pay for something that is free if they know it is safe, or is easy to use, or it has value.

Hardware and Software companies need to be a part of the solution.  You cannot stop all illegal use even if the federal government is suing hundreds of people.  Not when the technology is changing everyday.  If you create models that are safe, affordable and easy to use, we can keep moving forward.

The automobile did not like the technologically advanced method for building cars.  from 1903 -1911 there was a legal battle over whether it was legal for Henry Ford to use technology within the auto market.  I don't know if this is true, since I got the information on the internet.

Getting congress to sue will only slow the inevitable changes.

Step 1  Cut out who did what to whom.  Law is a great surgeon with fat fingers.
Step 2  Find common ground

The industry needs to find new business models. The consumers need to compensate artists.

The movie industry has a big dog in this hunt.  When they move forward, the dynamic may change in this market.  By acting in ways the music never did.

Dialogue vs Discussion.
Don't expect the answer to come from government.  Don't come knocking until you are done talking.

Jim Griffin CEO, Cherry Lane Digital/Pho (moderator)
Mike Dreese CEO and Co-Founder, Newbury Comics
Peter Jenner Sincere Management and Chairman, AURA and Chairman, IMMF
Gary Shapiro President and CEO, Consumer Electronics Association
Cary Sherman President, Recording Industry Association of America (RIAA)
Tina Weymouth & Chris Frantz Talking Heads/Tom Tom Club

Is this a Good time for being in music?

Shapiro _ this is a transition, we are in the middle of a revolution.  What we are changing is the way everyone has access to music.  Because of technology you have a phenomenal level of choice.  Do no wrong - don't come in an legislate.   You would never have had alot of the ingenuity we have had today had copyright owners gotten everything they have wanted over the years.

Tina
We have to do it all ourselves now.  The new model is labels have to have merchandising.  I didn't get into this to be in the garment business.  I don't have time to write my own music.  We spend all of time to keep our heads above water.  What's going to happen to my kids  - you complain when we get seventy more years on our copyrights, but it my take seventy years to pay for my casket.

The whole republican party has been hijacked by gangsters and crooks.  I never thought the mafia running the music business would look good in comparison.  Deregulation has created Clear Channel.  And record labels have to pay to have music played on the radio.  It costs more to get music played on the radio than to simply buy the ad time.

Mike
The entire world is turning into a brandfest.  Even the spice girls didn't think ehy were going to sell lunchboxes.  The Tiger woods effect is everywhere  - he will eventually collect over one billion in endorsement revenue.  The landscape for artists is changing very rapidly.  People are moving away from radio - or towards Topless Radio.  Just like John Madden footbal steals attention from other entertainment forms, artists have to deal with this.  This is the entertainment business.  But if you want to compete in the entertainment business, you have to think about this new business.  Even google is plain payola, you have to pay for every click through.

Gary
How much is radio really going to matter in the future.  Defeated through indencency laws and the lack of interest by the digital youth.

Mike
When a band that can put 2000 butts in chairs get a $200,000 endorsement from a soda company, is it good or bad.

sadf
Springsteen was offered a bottling plant from a soda company.

Tina
The best music is not in commercials on television.

Manager guy
The essential model that hypnotizes us all is mass media.  COnflict of interest between the huge retailers/labels and radio who all want huge volume from less titles, less choice.  It reminds of Henry Ford - you can have nay car you want as long as it is black.  Technology presents the opp to pass from a mass media model to a mass of niche markets model.  Some of the richest earners in the world have been musicians, which may not continue.  The vast bulk of musicians do not earn a living, while a tiny percentage earn insane amounts of money.

Tina
With marketing and promotion costs where they are, labels cannot afford to break new bands.  Bronfman is killing the industry.  Thanks to deregulation he is able to ruin thousands of people's careers.

curly
When somebody does this no one wants to complain.  We had a good record at Ryko.. they fired the product manager four weeks after our record was released.  They had to let people go in order to survive.  Walking into record companies is not what it used to me.  It;s like walking into a morgue.  You would to hear a telephone ring.

Cary
Its tough being inside the RIAA.  There isn't an appreciation that these are businesses that have to make a profit.  I think its great that bronfman bought Warner, cause AOL wan't do well with it.  When you lose 30% of sales you cannot afford all the employees and the impact is felt by the music.

Jim
Are yo doing more with less at the RIAA

Cary
It is tough.  Not a more challenging job in Washington.  If you try to explain the stakeholders in the music industry, people have no concept of how difficult it is to get things done.  Only in music is there such a multiplicity of players

What about the anti-trust exemption you are looking for?

Cary
Offer new products that bring back the habit of buying music .  Like the DualDisck - CD on one side, DVD on the other. Publishers, say this is more than one copy of themusic - the red book, the compressed file, each DVD version - that's five copies.  Thus they each need to be separately licensed and they may be new types of mechanical licenses.  They was no royalty for streams, subscriptions, until we gave the publishers an advance so we can proceed and agree to a large-scale rate later.


Shapiro
New technology is dislocating.  When the TalkingPicture came out, a lot of people lost their jobs.  For the first time in history, the customer has stepped down in quality.

Tina
We need better software (meaning music).  Who do you fire are record labels - the accountants and lawyers? No the artists and A&R people.

Brit
The present structure of the industry represent the technology of the 20th century,  The future label will act as venture partner and broker of licenisng.  The present heirarchy is disfunctional and will not work.  THey are tasked to an impossible task.  To sign an artist they "know" is going to be a worldwide, star.  You ask people to do stupid things, stupid things result.  We have to find ways to get music into the market in better ways.

Next - Where are we going from here.  Will it cost $40,000 to fill an iPod
Mike

Chris
I get my biggest checks from ASCAP.  Which is directly related to how many times my songs are played.

Tina
Its a good model, as long as it is scaled to the size of the business.  A compulsory (per track) would not scale in the same way.  I don't think sampling is "art".  I don't want to hear the

Peter
My crystal bollucks - the model in 5 or 25 is $100 a year subscription to all the music you want.  There will still be CDs.  There will still be other incremental model.  Everyone will pay for music services.  We will look back and wonder what we were worried about.  The present business model sucks,

Cary
All things that have been said are true, and all are possible.  The industry is re inventing itself .  we will see many new oppotunities.

Shapiro
I can never hear the government the government has all the solutions.  We are becoming more like poland was.  While the internet is providing such a wider level level of choice.

Brian Zisk Technologies Director, FMC (moderator)
Kevin Arnold Founder, IODA (Independent Online Distribution Alliance)
Charlie Chan musician
John Flansburgh Musician, They Might be Giants
Tim Quirk Executive Editor, Music, Real Networks and band Too Much Joy
Derek Sivers president and programmer, CD Baby
Holmes Wilson co-founder, Downhill Battle

Holmes
Payola in radio, payola in print has led to contracts artists not necessarily need sign.

Tim
The spread of music consumption online, beyond the the major five labels.  40% of highlighting placements are from indie labels.  The editorial team works on its own.
Access to everything results in more listening.

Derek
State of indies.  The services have been very open to adding independent music.  Sales reports are even better than expected.

Charlie
Sony was not successful at selling my music.  Protest outside parliament in 1994.  Put music downloads online and sales converted.  Selling on my own actually helps for cash flow reasons.  Most airplay comes from placement in films and most sales come as a result.

Kevin
Digital music distributor.  We don't have a large catalog of artists for whom we already are selling music, but are in it for the long-term given the potential we see.

John
We own some of our music which we sell online.  We are creating our own store for paid downloads.  You kinda hope that iTunes price level works as it sits at a price under which the artist can make money.  Subscriptions are tough for artists?

Tim
Why do subscriptions not work

John
I haven't made any real money.  Other than any payments I received up front.

Tim
Rhapsody pays a set royalty per stream, not a percentage of revenue.

John
the blurred line between broadcasting and selling.  We sell expensive products people don't really want.  The problem with streaming is … Sum up the business of music penny business… streaming turns you in to a little broadcasting fee.

Tim
Questions whether john is happy be be paid as a songwriter for radio play.  Yes the money from streaming, so far, has not been large.  But in the future it is going to be.

John
Its not just about the consumer.  Its about me to.  I am afraid this is a crummy deal for artists.

Tim
In the end, the total pay from a fan for a series of plays in a service could compete with the CD revenue.

Brian.
Phish sold 2.25 million dollars worth of downloads last year.  Any of the other indies seeing that?

John
I'd be in any other business if I were in this for the money.  The distributors will cut the deals with the services.  While doing you own thing, on your own site, is very easy with direct payment.  It says to the fan, "this is me, this is my stuff.  there is no label getting rich.  This is something done by real people.

Will artists play in all services while also doing their own thing?

Kevin
Yes.  And they should.  I don't believe CDs will be gone in 5 years.  It will be about however you can get ahold of music.

How many different services for CDbaby?
22
What is the distribution of sales

Derek
Artists who sold only three CDs suddenly sold 300 downloads.  Also people are searching by genre/style and can come up with you record.

Is there a reason to withold your music?

Tim
I don't think so.  Even when people come to my own site, most people choose to goto Amazon.  There is too much power in 1/2 a century of recordings

John
Is the new boss the same as the old boss?  Internet companies are back now.  This is the way things are going.  Major labels are a punchline.  There is a lot of confetti in the air.

Kevin
We are at the beginning of this process.  Eventually there will be a good result.

Holmes
We see something radically different.  The center isn't going to hold.  In the short term the good things might come true.  Within a yaer lawsuit-proof file-sharing clients,  These clients will add meta data, album graphics and other services.  Not necessarily bad… as more people do this, the pressure on major labels will be full.  Alternative compensation systems.  This flat fee could provide artists with more money since it should be non-recoupable.  In the near-future.  War or Truce.  Bills passing through congress make sharing music a felony.  Likely to pass.. thus everyone goes to the encrypted land.  The Truce is a realization that p2p has to be brought into the fold.  The technology could exist quickly.

Any chance of an ACS?
John - not alot of history on this.  If XM takes off, then this large scale subscription seems more reasonable.

Kevin
Is this a tax

Holmes
Long diatribe on ACS.

John
This is very utopian.  The indie artist is keen to say yes and no.

Holmes
Isn't it already over.  The best-selling CD in the country is blank.  The new consumer is being trained to download free music.  They got good SAT scores, they are not stupid.  Free is free.  File-sharing is the future of music, the income streams that have existed for the last fifty years will not existent.  Before the pop tune, there were few revenue streams.  Being a musician is a crummy life, you get used to it.

Charlie
I am not readily available on peer services.  I make money selling music online, and have made an application for selling mp3s online.  I don't believe in circumvention or protecting my music.  I have respect for my fans.

John
When we announce a new MP3 through out mailing list, with a password, 100,000 people stop by, then 100,000, then 50,000.  But only 50,000 people are on the list.
New fans are just generationally different.

Holmes
The presence of free music hasn't cancelled music sales.  People get music through both channels.  You have the music you listen to and the music you pay for.  People pay for the music they really value.

John
There is no bigger cultural pinnata than the major record labels.  These are decisions that individuals get to make.  Your decisions are those that are made by big governments and don't allow artists to negotiate for themselves.  We feel like the more we can negotiate on our own, the better we can do.  I need to make my situation as best as I can for myself.

Then I zoned out.

Mossberg (M) interviews Glaser (G)

(M) Why are you in both music services and download music stores?
(G) At the end of the day, people want music both ways.  The jukebox provides unlimited access at a flat-fee.  The download store is the analogous to the physical music store.  We think subscription are the foundation, long-term, for most consumers.  75% of households have pay television, and music services will align to this. 

(M) Isnt the subscription the only provider of any profit?
(G) Alot more value can be added within a music service.  More money per subscriber than per track.  Unclear on whether the service is ultimately more profitable.  Retailers have proven profits at a massive scale, while he thinks more money can be made in the subscription service.

(M) There are irrationalities on all sides of this market.  What planet are the labels living on? Example: raising prices while sharing is still so formidable.
(G) The planet spreadsheet.  Raise price by 10%, we make 10% more money.  But piracy scale dwarfs the legal music download business.  Up to 200 million in legal activity, but is there more than a few billion in the sharing realm.  Piracy is never on the spreadsheet, or it is on a different spreadsheet - the litigation spreadsheet.  Likely will raise the price of hot albums.. but will they lower the price on catalog items (like 50 cents).  Pennywise and pound foolish.

(M) Format - rigidity on the technology side.  The proprietary DRMs in place in the market stall portable player sales.
(G) Breifly debates over units vs dollars in the flash player market.

(M) Secure music is not portable across diverse portable players - even software players.  Even Sony's decision for a proprietary format in Connect.
(G) Yes.  This is as stupid as the issues on the record company side.  We are pushing for universal playability across hardware.  We support quicktime, openMG, windows media… Suggests to labels that they use leverage to open up the formats.

(M) Is this not a risk?
(G) What are the sources of innovation in this business?  The dimensions for adding value.  If the iPod were open, it should in turn be more popular within a service that is innovative.

(M) But the iPod closed market is seamless.
(G) Banter.  Apple will replay the scene of the last 25 years.

(M) Why do labels offer iTunes better terms. Example: their terms for more flexible at the outset.  Now changed the number of identical burns, while other services are at 5.  Increase the number of machines to 5, while everyone else has 3.

(G) Two things.  Steve is better at merchandising his advantage with labels.  He got the labels to move on the individual track licenses.  But all services will soon have the same flexibility, once applications are updated. (interesting - are the rights provided by the application?)

Questions from the Crowd (C)

(C) Has the market broken down such that statutories are the solution?
(G) Practically - getting consensus on that issue is unlikely.  Consider the creation of a purgatory… for live sessions, bootlegs, etc.  We cannot release them, in case we might be hit by cascading liabilities.  A positive might be a purgatory - not cleared, but you can work with them as long as you pay some agreeable rate.

(C) Why has there not been more price action downward?
(G) Lowest Common Denominator is the issue.  The challenge is to get all majors to agree to a split model.

(C) What about independent music on the major services, in terms of promotion?
(G) We have relationships with more than 200 labels.  Within rhapsody, 90% of the tracks are listened to at least once during any given month.  Subscriptions enable a more flexible experience and the best opportunity for guerilla marketing.

This panel kills fascists consisted of:

Jenny Toomey
Danny Goldberg
Paul Metsa
Paul Thetic
Michael Munz
Jay Rosenthal

Main question being Music as political speech: is politics the only difference between art and craft?

Favorite protest songs?
Paul
Peter Paul and Mary version of Blowin in the wind, Turn Tun Turn.
Woodie Guthry - Hobo's lullaby

Jay
Billy the mountain - zappa
They aint making jews like jesus any more
Run to the shelter - Sweet Honey and the Rock

Paul Thetic
At least i'm trying what the f*ck have you done -Minor Threat

Danny
Rich man's way - Steve Earle
Give peace a chance - john lennon
Eve of destruction / ps sloan - Barry Mcguire

Jenny's proposition
The myth that art is not, or should not be, political

Jay
There are three categories of this political positioning.
Active politically, but material is not
Active politically, but only some material is
Active politically and all material is political


Danny
Music+Politics were so intertwined, they almost felt like the same thing
We are bogged by a modern fear that both the good and bad of 60's will happen again, given open political protest.  The youth vote is worth less than the elderly vote cause the elderly actually vote.  MTV saw .6 rating for Clinton vote episodes in 92 (700,000 viewers) while 2million tuned in for Kerry episode, with little promotion.

Pat
Spends his days using punk music to motivate people to vote.
Agrees to lack of distinction between Bush and Kerry - Coke vs. Pepsi?
Music may not be the best tool for distributing accurate information - but can be backed by other information sources: internet, publishing.

Mike
History of music and unionism in the decade of AFM and latin music / tejano
Latino musicians being paid $50 per song by the recording labels as opposed to matching union rates.  It took nearly ten years to get a congressional hearing over the labour issues in tejano music.  Example: Celina - all english music recroded was subject to professional wages, all spanish wages were straight payout below union rates.  Finally, in 2001 major latin labels agreed to AFM proposal.

Paul
Has being political hurt or helped your career? Well, the sound of four people applauding in a stadium after a political song is not enjoyable.  Political music should stand up as a musical piece.

Jay
Sex is now the biggest political issue.  The taliban silenced musicians as well.
Who is in charge inside the beltway affects all musicians.  You have to fight for your rights to express yourself.

Danny
Dixie chicks sold $49 million dollars worth of tickets after the outrage.  So being political does not necessarily hurt your career.  Its important to mix political speech with musical vision.  If the music is too didactic, too preachy, you risk boredom.  Asked why Howard Stern, who has been vulgar for 20 years, was suddenly pushed off the air after he criticized Bush.