Real Good for Free

Way back in 1970, long before musicians knew that they were “digital content creators,” Joni Mitchell wrote a song comparing her life as a star entertainer to that of a street performer.

Why “subversive?” Because we’ve always had this great concept of music that was real good for free. Some music you pay for, and some music is free. Free music is just out there for the taking. Someone put “his” music into the public domain, and you wandered by. No charge, unless you feel like throwing a couple of coins into the hat. Except for one little problem. It’s not strictly true. One of the great dilemmas of the music business is that while a few well-paid superstars and a large number of street performers play music for us to enjoy, only some of them perform it legally. Odds are pretty good that Joni Mitchell’s street performer played at least one copyrighted song, and that when he got home and tallied the day’s take, he didn’t forward the appropriate royalties. In other words, he was a thief.

Now, it’s one thing to look the other way at this blatant disrespect for property rights, but it’s another to actually lament the plight of these tal­ented musical thieves—in a copyrighted song, no less. In many ways, it breeds contempt for the entire notion of proprietary music. Our star per­formers and major record labels have long fostered this sort of cultural contempt; in many ways, it’s good for business. But it is cultural con­tempt—and as the record companies have learned, it can come back to bite you.

We’d all like our music to be real good for free. But it isn’t. It isn’t because it costs money to compose music and it costs money to produce music. Until fairly recently, it also cost money to distribute music. But the information sector changed that. These days, music is nothing more than a bit string. Anyone can copy and move digital music around the Internet—hence around the world—at pretty close to zero cost. The people who own the rights to distribute it no longer control the chan­nels of distribution.

The music business, like the software business, found that the Internet had altered a critical element of its production and distribution model. But unlike the software industry, which had always been in the information sector and was at least somewhat adept at navigating tech­nological change, music and its people dwelt in a different world. Music thus became the first mature industry that the information sector swallowed.² Its players are still reeling from the change. The copyright owners—led by the record companies—are fighting to regain control of distribution. Many of their battles have taken place on the IP front, where they’ve convinced some judges to uphold the rights that they sought to protect, and some politicians to introduce bills that would strengthen those rights. They’ve also faced defeats on the IP front, because neither all judges nor all politicians have agreed with their argu­ments. The combatants have met on the technology front. The record companies have sought to reimpose control by developing technologies that complicate copying and circulation.

Music’s future is thus likely to look quite different from its recent past. No one can be certain what direction it will take. Will the record companies find better ways to reassert control over distribution, or will technology force them to relinquish their distribution rights and to turn elsewhere for profits? Will ubiquitous music available on demand from wireless devices become a subscription service—and if so, who will be in charge of collecting fees and of distributing them among the many holders of music copyrights? Will recorded music become little more than a way to promote live performances—or to sell products? Will corpo­rate sponsors become the primary “patrons of the arts,” putting talented musicians on salary to develop Top 40 jingles? Will our IP laws become increasingly expansive, and the penalties for infringement increasingly harsh? Or will they become less restrictive to accommodate the easy, cheap distribution enabled by new technologies? And if our IP laws do change, how will we handle the overlap period, in which one set of rights protects valuable “old” music while a different set protects “new” music?

These are some of the questions that we’ll have to answer over the next few years—or decades. But they’re also far more than that. The future of the music industry will reveal how we handle ourselves when the information sector takes over a mature industry. We must try to understand how music slipped into the information sector, and consider how we should respond now that it’s there to stay.