The Heavenly Jukebox

Rampant music piracy may hurt musicians less than they fear. The real threat—to listeners and, conceivably, democracy itself—is the music industry's reaction to it
Elton John Gets Mad

To many musicians, the threat to the majors posed by the Net is more than counterbalanced by the promise of the heavenly jukebox. Ultimately, many music pundits say, listeners will simply pay a monthly fee and download whatever music they want. Music will no longer be a product, acquired in a shrink-wrapped package, in the vision of Jim Griffin, the co-chairman of Evolab, a start-up that is attempting to create a wireless version of the jukebox. Instead it will become a service, almost a utility. Consumers will have ready access to more artists than they do now, but will pay less for music; musicians will no longer be forced to cover exorbitant production costs, and will be able to reach audiences more easily than ever before. "Musicians will get paid," Griffin promises. "But to the consumer, music will feel free—just the way cable TV feels free once you've paid the fee."

Illustration by Jose Cruz

Huge obstacles stand in the way of this attractive vision. Legally, downloading a song can be construed as being simultaneously a sale (someone is buying the song), a broadcast (the song is being transmitted over the Internet), and a mechanical copy (the buyer is making a copy on a hard drive). Pooling the world's music would require negotiating copyright licenses with dozens of collecting societies (ASCAP, BMI, Harry Fox, and the like) here and abroad, hundreds of record companies big and small, and thousands of independent music publishers. One would also have to obtain licenses from the patent-holders on the codec and the developers of the copy-protection software, if any is used. The entire musical output of the world may well end up on Napster or its equivalent before the lawyers finish.

This possibility may not prove completely disastrous. In the past, creators who have lost revenue they should have received from intellectual property have been able to find other ways to support themselves, even if under reduced circumstances. Musicians will still be able to charge for performances, sell T-shirts, and make personal appearances at the launch parties of new dot-coms. Some may follow the singer-songwriter Todd Rundgren's lead and send subscribers regular shipments of music for a fee. Others will use the Net to introduce listeners to their music with the hope of then charging for more. More than a million people downloaded music by the band Fisher from MP3.com, and as a result the band was signed by a major early this year.

Such plans are not limited to pop groups. Symphony orchestras have been losing record contracts as labels cut back on releases whose sales potential is small. In June sixty-six symphony orchestras and opera and ballet companies, among them some of the nation's most prominent, announced that they were joining together to build audiences by distributing their music over the Net. Musicians will explore services like MP3.com's DAM, which charges fans a fee to burn songs from unsigned bands onto custom-made CDs; the musicians and the Web site split the proceeds. The company also pays bands to let their work be syndicated to restaurants and other establishments as hip background music. David Bowie, ever inventive, has sold bonds based on his future earnings. The singer-songwriter Aimee Mann, regarded by her label as uncommercial, successfully released a CD over the Internet. Limp Bizkit announced plans for a national tour of free concerts, with the band's fee picked up by a corporate sponsor—Napster.

In addition, businesses will probably still have to pay: they can be sued more readily than individuals for playing illicit music. And advertisers, broadcasters, film companies, Web sites, and other companies will always be interested in music. "Music draws a crowd," Griffin says. "And there are a lot of reasons that companies are interested in crowds. Look at the JVC Jazz Festival in New York, or Budweiser sponsoring the Rolling Stones." These firms sponsor music not to sell compact discs but because music provides an environment in which to put across a message. "Maybe Coke will find a way to integrate itself directly into the shows," says Hal Varian, the Berkeley economist. "Or they'll release the music free on the Internet, except that it will be wrapped in a commercial."

Varian is untroubled by the thought of corporate-sponsored music. What difference does it make if the Spice Girls are marketed by Coca-Cola or by Virgin Records, soon to be a subdivision of AOL Time Warner? The difference is that Virgin must recoup its costs from the sale of CDs and cassettes, whereas Coca-Cola can write off the whole undertaking as an advertising expense. If it hired experienced marketers, Coca-Cola, which has annual revenues much higher than those of the entire music industry, would be far better able to promote music than any individual label. If Virgin cannot make money from the sale of music, it will either be hired by Coca-Cola—or Nike, or Ford, or Frito-Lay—or be replaced by it.

Even if they lost their supremacy, the labels would still have ways to make money. Their expertise in production and marketing would still be valuable. And their control over the copyrights on music of the past would still generate licensing revenues from advertisers, broadcasters, and other businesses. Indeed, the proliferation of Internet radio and music-subscription services may create a windfall for the labels' music-publishing arms. But there is little doubt that in a world where individual listeners can ignore copyright rules, the labels will lose their dominant position.

Surprisingly few performers and composers would mourn the fall of the majors. The hostility musicians routinely express toward their industry is unlike anything in book publishing or even in Hollywood. Elton John, who has sold more than 60 million records and won four Grammies, is like a Stephen King or a John Grisham of music. It seems fair to say that neither writer would, as John did in March, on the Today show, vehemently denounce publishers as "thieves" and "blatant, out-and-out crooks." The major labels were now "just laughing all the way to the bank," he said. "But they won't be laughing very soon, because when the music on the Internet comes in, the record companies will all be crying."

When I tried to describe this rosy picture of artistic self-sufficiency on the Net to the science-fiction writer Bruce Sterling, he was able to contain his enthusiasm. In 1993 Sterling became one of the first writers to post a book in its entirety on the Internet. The effort was part of a time "when writers really had the idea that with all this great technology they could bypass the Man and go directly to the public," he told me. "Hell, I believed it—sort of, I guess. And you know what we all found out? It never works. Either you spend all your time marketing yourself, in which case you don't actually write, or you hand over the marketing to your Web-site guy or the new Internet entrepreneur who's going to take care of it all for you, and they then become your new boss."

Some artists may do well under the new system, Sterling said. Some won't. But, as he points out, the current attempt to weigh the results of the loss of effective copyright assumes that the majors will sit by passively as their role is usurped. They won't, of course. As they did in the past, they'll fight with every available weapon. And sooner rather than later they'll go after the Internet itself.

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Charles C. Mann, an Atlantic contributing editor, has been writing for the magazine since 1984. His recent books include 1491, based on his March 2002 cover story, and 1493.

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