How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties

Many Artists Support (And Are Supported By) P2P

1 Leave a comment on paragraph 1 0 I have already mentioned several high-profile recording artists who have publicly voiced their support for P2P and free music sharing for a variety of reasons, but these are only the tip of the iceberg. In my expert report for Arista v. Lime Group,[1] I cite dozens more, and a now-defunct blog called Pirate Verbatim collected over a hundred such quotes between 2010-2011.[2] Of course, not every artist supports file sharing; several prominent musicians, such as Bono and Lily Allen, have come out strongly against the practice, and others who had expressed support (such as Shakira[3]) have recanted or repositioned at the behest of the industry. But a great many (perhaps the majority of) working musicians continue to support the practice, and an increasing number of both independent and major label recording artists are embracing P2P as a positive dimension of their fan relations and business strategies.

2 Leave a comment on paragraph 2 0 Several artists, such as Steve Winwood,[4] Counting Crows,[5] Green Day[6] and Heart[7] have actively released their new music to P2P networks, some of them prior to the official release date. Many others have experimented with innovative distribution and revenue models that rely upon P2P either tacitly or explicitly as a central element. A great example is Nine Inch Nails. For his 2008 album Ghosts I-IV, frontman Trent Reznor parted ways with his label, Interscope, and released the music on his own website under a Creative Commons license (much like this book), allowing his fans to freely redistribute the music in a noncommercial capacity, on file sharing networks and elsewhere. In addition to freely available digital files, NIN also released the music under a number of premium packaged formats, including multi-track DVDs, heavy duty vinyl, and an “ultra-deluxe limited edition” box set costing $300.[8] The 2,500 ultra-deluxe box sets sold out in a day,[9] and within the first week, NIN had grossed over $1.6 million in sales revenues across all formats.[10] Retail distribution was handled by Sony Music’s RED division, as well as Amazon MP3. The album’s CD release was successful enough to win it 14th place on the Billboard 200 chart, as well as the number 1 position on the Dance/Electronic Albums chart. For his following album, The Slip, Reznor pursued a similar strategy.[11]

3 Leave a comment on paragraph 3 0 Another excellent example is the band Radiohead. In 2007, the band, which had recently parted with longtime label EMI over financial and strategic disputes, self-released its album In Rainbows on its own website, offering fans the opportunity to pay anything they liked for the songs in DRM-free MP3 format. Despite making the music effectively free and freely shareable, the band had a significant commercial success. Although official sales figures for the album have never been announced, the band’s publisher, Warner Chappell, reported that sales of the new album on the band’s site during its first twelve weeks of release yielded more income than total online and off-line sales of their prior, major-label album.[12] Roughly two months after the self-release, the band shipped a retail CD version of the album via major label distribution deals. In its first week of official release, sales of the CD format pushed In Rainbows to first place on the Billboard 200, as well as the UK Album Chart.[13]

4 Leave a comment on paragraph 4 0 A third example is rock/R&B megastar Prince. More than almost any other popular recording artist, Prince has shown an enthusiasm from the internet’s earliest years to experiment with new forms of distribution, sales and marketing. Although his stated position has been subject to numerous shifts and reversals (not long ago, he declared that the Internet is “completely over”),[14] he has benefited immensely from innovative distribution strategies based on free distribution and redistribution. In 2007, for instance, he released his new album Planet Earth as a CD included freely in 3 million issues of Britain’s Mail on Sunday tabloid newspaper. In addition to being paid a reported half a million dollars plus royalties by the paper’s publisher, Prince went on to play a twice-extended, sold-out, 21-night engagement at London’s 02 arena during the subsequent two months, which grossed over $22 million in revenues.[15] A copy of Planet Earth was also given away freely to every ticket
purchaser. This newspaper distribution strategy was so successful, he repeated it three years later with his 20Ten album.[16] Although Prince has been a vociferous opponent of file sharing at times (and has sued torrent tracker The Pirate Bay), there is little question that his financial success as a touring artist owes some of its longevity to his efforts to make his music freely available for people to access and share.

5 Leave a comment on paragraph 5 1 While Nine Inch Nails, Radiohead and Prince were pioneering innovators who could not have predicted the successful results of their experiments in the late years of the 2000s, countless other artists have followed confidently in their footsteps, and improved upon their models, in the years since then. Singer-songwriter Sufjan Stevens sold over 10,000 copies of his 2010 EP, All Delighted People, from his artist page on Bandcamp.com in a single weekend, despite making the album available for free streaming and only promoting the release via a single email, a single Twitter message, and a single Facebook post.[17] Based on these sales alone (the album wouldn’t be released on CD for over three months), it debuted at #48 on the Billboard 200 chart, and climbed to #27 in the following week. A year and a half later, indie punk musician Amanda “Fucking” Palmer financed her new album and tour via crowd-funding website Kickstarter.com, raising over $1 million in a single month from over 20,000 individual backers[18] without any corporate funding or marketing support, and becoming an overnight blogosphere “DIY” sensation in the process. She charged only $1 for a digital copy of the entire album (tacitly acknowledging that its market value is practically nil), while offering more unique formats and merchandise (such as signed art books and custom-painted turntables) for larger pledges. While the costs to provide these additional incentives were high, she still anticipated netting more revenue than she would from a major label contract for the same music.[19] These cases, though celebrated, are becoming the rule, rather than the exception; musicians raised nearly $20 million in crowd-funding on Kickstarter alone in 2011,[20] and that number is sure to skyrocket; the site’s monthly traffic doubled during the first half of 2012.[21]

6 Leave a comment on paragraph 6 1 In addition to the many famous musicians using P2P and digital music sharing to extend and grow their careers, there are also many recent examples of obscure or emerging musicians whose careers were propelled into the stratosphere via free online distribution. One widely-celebrated example is teen pop sensation Justin Bieber. After his mother posted home videos of the Stratford, Ontario 14-year-old singing (unlicensed) pop R&B songs to YouTube, he was “discovered” accidentally on the site by a former label marketing executive, who helped him sign a recording contract with Island Records.[22] By the time his first single was released in 2009, the singer was already the 23rd-most-popular musician on YouTube. After his commercial release, Bieber continued to grow in popularity, fueled by free sharing on YouTube (where, at the time of writing, he has the most popular video of all time, with over 740 million views), Twitter (where he is the currently second-most-popular account, with over 22 million followers), and P2P networks (where he is consistently among the most shared musicians, according to BigChampagne). None of this free sharing kept Bieber’s first
two albums from selling like gangbusters (each earned RIAA-certified Platinum status in the US and Canada), and it’s clearly only helped fuel the “Bieber fever” driving millions of fans to buy his merchandise and attend his live concerts for nearly half a decade thus far.

7 Leave a comment on paragraph 7 0 Another example of an artist climbing from obscurity to fame on the coattails of free Internet distribution is The Gregory Brothers, a Brooklyn-based indie band best known for their YouTube video series “Auto-Tune the News,” (ATTN) in which they remix and harmonize television news footage. Although ATTN has enjoyed significant traffic (millions of views per video) and press attention since its debut in the Spring of 2009, the band was catapulted to mainstream success with the July, 2010 release of ATTN episode 12b, “BED INTRUDER SONG!!!!” This video, which remixed a Huntsville, AL local news story about an attempted rape, and featured the colorful personality of the victim’s brother, Antoine Dodson, garnered over 50 million YouTube views within its first four months of release.[23] Additionally, within a month of its first appearance, thousands of other YouTube fans had posted their own interpretations of the song, accounting for tens of millions of additional views. This viral success translated to a degree of market success beyond the confines of YouTube; the song was made available for paid download on iTunes, and charted on the Billboard Hot 100, a rare accomplishment for an iTunes-only song by an unknown act. The Gregory Brothers shared 50% of writing credit and revenues with Dodson,[24] who has also used the video to sell merchandise and music of his own, and has reportedly used the revenues to move his family out of the projects, to a safer home.[25]

8 Leave a comment on paragraph 8 0 As these two examples make clear, P2P alone cannot take all the credit for launching new musicians’ careers; social media and online video sites such as YouTube (both of which also qualify as “free online distribution”, and frequently lack licenses from copyright holders) have played an increasingly important role since the mid-to-late 2000s. Recently, internet researcher Alex Leavitt reported on Twitter that a major record label had seen 42% of its new musical acts originate as YouTube cover artists.[26] This statistic, though anecdotal in nature, reflects an evident truth: namely, that sharing unlicensed versions of commercial music freely via the internet has replaced the traditional “demo tape” as the primary vector for amateur or independent performers to shop their wares to the music industry and to a broader audience. While Bieber is the best-known example of this phenomenon, my personal favorite is Arnel Pineda.

9 Leave a comment on paragraph 9 0 Pineda served as the lead singer of The Zoo, a popular classic rock cover band in his native Philippines. After the band posted several cover versions of songs by Journey to YouTube, Journey co-founder and guitarist Neal Schon contacted him to ask whether he’d be interested in auditioning to be the band’s lead singer. Pineda got the job; the resulting album, Revelation, sold a million copies within six months of its release,[27] and their tour that year grossed over $35 million. Fortunately, Schon and Journey saw something of value in The Zoo’s YouTube covers; had the copyright holders simply censored or prosecuted the cover band for its “piracy,” Pineda might have been bankrupted, Journey might have missed out on an ideal lead singer (and a $35 million paycheck), and Journey fans around the world might not have been able to enjoy their new album and live concerts.

10 Leave a comment on paragraph 10 0 [1] 715 F. Supp. 2d 481 (2010). The report is a matter of public record, and is available at http://www.scribd.com/doc/55319273/Limewire-Sinnreich-Report.

11 Leave a comment on paragraph 11 0 [2] At the time of writing, the blog archive is still available at http://verbatimpirate.wordpress.com/

12 Leave a comment on paragraph 12 0 [3] IFPI, Digital Music Report 2012.

13 Leave a comment on paragraph 13 0 [4] Katie Dean, “Winwood: Roll With P2P, Baby,” http://www.wired.com/entertainmentlmusic/news/2004/07/64128, July 9, 2004.

14 Leave a comment on paragraph 14 0 [5] http://bit.ly/Je3zHh

15 Leave a comment on paragraph 15 0 [6] “Mike Dirnt (Green Day) Interview,” Downloaded from  http://blogs.1077theend.com/aharms/2009/05/15/mike-dirnt-green-day-interview/

16 Leave a comment on paragraph 16 0 [7] “Heart Crazy on TrustyFiles P2P File Sharing Network Distribution,” http://www.trustyfiles.com/corp-press-heart.php. July 19, 2004.

17 Leave a comment on paragraph 17 0 [8] Jeff Leads, “Nine Inch Nails Fashions Innovative Web Pricing Plan,” New York Times. www.nytimes.com/2008/03/04/arts/music/04nine.html. March 4, 2008.

18 Leave a comment on paragraph 18 0 [9] Trent Reznor Sells 2500 Ultra-Deluxe Vinyl NIN Ghosts at $300 Each in a Day,” http://synthesis.neU2008/03/05/trent-reznor-sells-2500-uItra-deluxe-vinyl-nin-ghosts-at-300-each- in-a-day/, March 5, 2008.

19 Leave a comment on paragraph 19 0 [10] Van Buskirk, E. (2008). Nine Inch Nails Album Generated $1.6 Million in First Week. Wired Listening Post. Available from http://www.wired.com/listening_post/2008/03/nine-inch-nai-2/

20 Leave a comment on paragraph 20 0 [11] Eric Steuer, “Nine Inch Nails’ “The Slip” out under a Creative Commons license,” http://creativecommons.org/weblog/entry/8267, May 5, 2008.

21 Leave a comment on paragraph 21 0 [12] August Brown, “Radiohead’s publishing company reveals the take from ‘In Rainbows’,” LA Times, http://latimesblogs.latimes.com/music_blog/2008/10/radioheads-publ.html, October 15, 2008.

22 Leave a comment on paragraph 22 0 [13] “Radiohead CD tops UK album chart,” BBC News, http://news.bbc.co.ukJ2/hi/entertainmentl7173993.stm, January 6 ,2008; “Radiohead Nudges Blige From Atop Album Chart,” Billboard,
http://www.billboard.com/bbcom/news/article display.isp?vnu content id=1003694375.

23 Leave a comment on paragraph 23 0 [14] Kyle Anderson, “Prince Says Internet is “Over”, But Radiohead, Trent Reznor And Othera Beg to Differ,” http://newsroom.mtv.com/2010/07/07/prince-internet-is-over/, July 7, 2010.

24 Leave a comment on paragraph 24 0 [15] Greg Kot, Ripped: How the Wired Generation Revolutionized Music, 2009.

25 Leave a comment on paragraph 25 0 [16] Paine, A. (2010). Prince To Release ’20Ten’ For Free In Europe. Billboard, 6/29/2010.

26 Leave a comment on paragraph 26 0 [17] “What is a Sufjan?” Bandcamp the blog. 8/24/2010. http://blog.bandcamp.com/2010/08/24/what-is-a-sufjan/

27 Leave a comment on paragraph 27 0 [18] Data is from Palmer’s Kickstarter page: http://www.kickstarter.com/projects/amandapalmer/amanda-palmer-the-new-record-art-book-and-tour

28 Leave a comment on paragraph 28 0 [19] Palmer, A. F. (2012). WHERE ALL THIS KICKSTARTER MONEY IS GOING. http://blog.amandapalmer.net/post/23551030051/where-all-this-kickstarter-money-is-going-by-amanda

29 Leave a comment on paragraph 29 0 [20] Resnikoff, P. (2012). Kickstarter Helped Musicians Raise $19,801,685.21 Last Year… Digital Music News. 1/11/12. http://www.digitalmusicnews.com/permalink/2012/120111kickstarter

30 Leave a comment on paragraph 30 0 [21] http://www.quantcast.com/kickstarter.com

31 Leave a comment on paragraph 31 0 [22] Jan Hoffman, “Justin Bieber is living the Dream,” NY. Times, http://www.nytimes.com/2010/01/03/fashion/03bieber.html. January 3, 2010.

32 Leave a comment on paragraph 32 0 [23] “The Top 10 Viral Videos of 2010,” http://www.spike.com/blog/top-10-viral- videos/1 02980?page=2&numPerPage= 1, December 22, 2010.

33 Leave a comment on paragraph 33 0 [24] Eliot Van Buskirk, “Gregory Brothers of ‘Bed Intruder’ Fame Discuss TV Pilot, Antoine Dodson,” Wired, http://www.wired.com/epicenter/2010/08/gregory-brothers-bed-intruder-antoine-dodson- autotune, August 13, 2010.

34 Leave a comment on paragraph 34 0 [25] Mike Thomas, “Chicago Transplant’s fame grows beyond web,” Chicago Sun Times, http://www.suntimes.comllifestyles/2928984,kevin-antoine-dodson-tv-deal-11291O.article, November 29,2010.

35 Leave a comment on paragraph 35 0 [26] https://twitter.com/alexleavitt/status/201440625684529152

36 Leave a comment on paragraph 36 0 [27] http://www.riaa.com/goldandplatinumdata.php

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