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posted 26 Jan 09     

Got To Do What You Should:
A Free and Legal MP3 Manifesto

The mainstream music industry must learn
to stop worrying and love the
free and legal MP3.

Careful followers of Fingertips may have noticed a blip in the normally smooth weekly presentation of free and legal MP3s in December, when a song I featured, Sam Phillips' charming and deep "Sister Rosetta Goes Before Us," was pulled down by the record label before the end of the first week of being spotlighted here.

The record company, Nonesuch, a part of Warner Brothers, delivered an email apology to affected bloggers via Toolshed, the music promotion company with which it was working. Toolshed, you should know, is a digital-savvy company widely known for promoting musicians via the use of, typically, one free and legal MP3. In an effort to sound both contrite and magnanimous, Nonesuch took the blame upon itself, exonerating bloggers of any legal wrongdoing. The problem, said the Nonesuch executive, was that he never realized Toolshed was going to put MP3s online versus streams.

Okay, so he didn't know that a company that pretty much always uses free and legal MP3s to promote its clients was going to use a free and legal MP3 to promote Sam Phillips. Fair enough. But his supposedly generous gesture, absolving bloggers of criminal activity, was irritating for those of us (myself, and at least one other) who only seek to post free and legal MP3s in the first place. It's our stated policy. We do not want to post MP3s that are not free and legal.

Meaning that if a free and not-legal MP3 somehow slips through the cracks, guess what? It's a mistake. The only way it happens--as with the Phillips song--is when the MP3 is presented as free and legal. There was no way for anyone to know it wasn't until, oops!, the very record company who released it decides it didn't really mean to.

I am so happy to know that Nonesuch will see to it that the law will spare me punishment for something that was an unavoidable mistake.

Beyond merely irritating me, this incident illustrates yet again how baffled the major record companies remain when it comes to downloads. The Nonesuch executive could not bring himself to utter the name "MP3" in his explanatory letter; what he said was, "I did not realize these tracks were not streaming." It's like okay, if I don't mention MP3s, they don't exist. To the big boys, there is no difference between free and legal and free and not-legal. The big problem to them is "free." Free does not compute.

This is a common attitude at the upper echelons of the music industry. We all know that they hate illegally posted MP3s, but the truth is they hate legally posted MP3s also, when they're free. Which is why, by and large, the bigger record companies never post them. (Or, when they do--hello, Nonesuch!--it's probably a mistake.)

I'm not surprised about this, of course. When all is said and done, the big labels continue to do what big labels have always done best: burrow their heads deep in the sand when faced with changes to the status quo. Having been dragged against their will into a world in which music exists digitally, without a physical product that needs to be manufactured, they continue to try to make this new world function like the old one.

But everything changes when music is available digitally. Major record company desire notwithstanding, there has not been and there never will be a slick and handy transition from everyone buying physical copies of songs and albums to everyone buying digital copies of songs and albums. The appearance of free digital music has gotten in the middle of all this and has rendered the industry's simplistic ideal an impossibility. The public will never buy everything it used to buy. The question for the music industry is whether it wants to work with this reality or continue to fight it.

I contend that if the industry keeps fighting it, more and more potential revenue (and customers) will be lost. If, on the other hand, the industry finally starts to accept digital reality, which includes the reality of a certain amount of freely distributed music, the record companies might learn how to stop worrying and love the free and legal MP3.

For it is in fact the free and legal MP3 that might yet save the music industry.

So far, of course, the major record companies are nowhere near understanding this. They--along with a surprising number of smaller record companies--cling against all reason and evidence to the belief that "protecting" every single song on an album is somehow the road to increased sales, and they rally around any scheme that seeks to circumvent the reality of downloading altogether. Look no further than the current hyping of unlimited streaming services to see the lengths to which the music industry continues to want to fool itself.

And yet the actual answer to a workable future for record labels and musicians alike is staring everyone in the face. What needs to be done is not complicated. Lord knows I never thought I'd be quoting Ronald Reagan, but what we have here is pretty much a "Mr. Gorbachev, tear down this wall," moment. Only in this case it's more like "Mr. Gorbachev, put a gate in the wall." Because I'm not saying everything has to be free. That's silly and unrealistic. I'm just saying one song has to be free. One song from every album and EP.

So that's it--that's my Free and Legal MP3 Manifesto. It's got one immutable principle: Every album or EP released by anyone, anywhere, should have one easy-to-access free and legal MP3 available. Moving forward, this should be the industry standard.

Note that it doesn't have to be two or three or four free and legal MP3s. Just one free and legally distributed song per album, across the board. And note that I mean one easily accessible free and legal MP3, not a file you can access only after surrendering your email address, or a file so buried beneath Flash-based web tricks that you can't figure out where the download has gone. One accessible link to a free and legal MP3, for every album released.

If this sounds like what is already going on--well, believe me, it's not. Yes, in the particular corner of the independent music world in which Fingertips largely hangs out, many albums automatically come with a free and legal MP3 or two. But you may be surprised how often this is not the case; Nonesuch Records is hardly the only culprit. Plus, there's often a built-in dead end, as bands who get popular often disappear from free-and-legal-MP3-land. The Decemberists, for example, were Fingertips heroes in the site's early years. But then they signed to Capitol Records and that was pretty much the end of the free and legal MP3s. Foolish strategy but it happens all the time.

Equally foolish, alas, is the strategy of over-compensating, of putting everything out there as free and legal MP3s. I appreciate the goodwill involved, but it actually doesn't help anyone. It's kind of a child-like response to the mean and crazy world, an immature coping mechanism: "Okay, if people want to take my stuff anyway, I'll just let them have it, and hope that money will just magically appear because I'm being so nice and giving."

Enough of that. Like President Obama (wow, huh?) just said, it's time to put away childish things. The situation here demands level-headedness; it requires everyone to release the greedy pipedream of blockbuster sales so that we might all see a middle ground in which musicians can earn a living, record companies can thrive (but modestly, not extravagantly), and the music finds its rightful homes in people's hearts (and iPods, or bookshelves, or wherever people most like to keep it).

So: let every album have one free and legal MP3. Other songs must be purchased; the album, if desired, must be purchased as well. If this were the industry standard, if every album had one free and legal MP3, the industry would be in better shape, and the path for future growth clearer.

Here are five reasons why:

1) Free and legal MP3s do not equal lost revenue.

Let's begin by shredding once and for all the fantasy that every free and legal MP3 downloaded equals money the record companies aren't receiving. That's a patently false, self-serving assumption.

To begin with, when you offer a free and legal MP3, you invite many many experimenters, people who grab it because it's free but would never have bought it if it weren't free--who often would have no idea it even existed if it weren't free. There's no lost revenue in that at all. This would be like saying it was lost revenue every time someone heard a song on the radio but didn't go out and buy it.

Okay, and then what? Well, they listen and decide if they like it. If they don't, then these people would not have bought the song anyway. Again: this is not lost revenue.

If the downloader likes the song, then we get to the all-important fork in the road: he or she can then buy another song from the album (or maybe even the whole thing), or still not buy anything further. In the first case, you've created revenue, so, okay, phew. But then there's that troubling second case to deal with, and this is probably one that has the labels fretting: "You mean they downloaded the song for free, they liked it, and they still aren't giving us any money?"

Well, yeah, maybe. But it is shortsighted to see this as simply lost revenue. What you generate here instead are two important things: customer goodwill (hey! they keep giving me a free song! and they're sometimes really good!) and technologically effective promotion. Look: this "free song" will pop up in the listener's iPod, will make it onto playlists, will generate awareness of the artist in question. Over time, there's still significant sales potential, especially in this day of fostering community between artists and listeners. Record companies must begin to understand the promotional value of this exposure, which leads us to point number two:

2) Free and legal MP3s are the single most valuable way to promote artists to music fans in a post-radio age.

Let's return to the plight of our magnanimous Nonesuch friend. So, yay, he protected every single song on a worthwhile but off-the-beaten-path album. I have to wonder: are copies of the Sam Phillips album therefore flying off the shelf? Do people think, "Well, crap, since I can't have any free songs I better buy the whole album?" Not in 2009 they don't think this.

The easiest and most effective way to promote an album, especially an album that is not in any case destined for million-seller (or even 100,000-seller) status, is by making a free and legal MP3 readily available. Give people a song to have, to listen to in the context of their preferred music-listening environment. Let it spread around the internet, friend to friend, blog to blog.

I find it ironic that record labels that are squeamish about letting loose free and legal MP3s had no problem for decades handing out free physical copies of their records to radio stations. Oh, well, one might say, that's an entirely different thing. There were huge audiences at stake. Giving a free record to a big-city radio station could result in millions of dollars of sales.

True enough, at the very top end of the music market, commercially speaking. But these same record labels also had no trouble shipping copies of many albums destined for obscurity (where's the return on that?), and no trouble shipping albums to some pretty tiny radio stations, including all those college stations with audiences that number in the dozens at any given time.

Truth be told, radio has pretty much disintegrated for the majority of recording artists. Hardly anyone gets on the radio. (Sam Phillips certainly doesn't get on the radio, outside of a coterie of "adult alternative" stations.) And it doesn't matter because nowadays, people's computers and people's iPods are, effectively, their radios. That's where they listen to music, both old and new. And the only way record companies can get on these "stations" is--how?

You got it: by giving people a free and legal MP3 to download and play--to, essentially, "program" on their own personal station. Because, yes, in order to listen on computers or MP3 players most easily and comfortably you have to give people the song, not expect them to sit there trapped in their browser listening to a stream, or trapped on a particular web site where music is free if you watch the ads, and not sitting in front of a screen watching a video. (Am I the only one left who realizes that a video is not a song? Just curious.)

And guess what? Delivering a free and legal MP3 to all of them costs a lot less than printing CDs and shipping them out for free to hundreds of radio stations around the country. Never mind lost revenue, what about all the expense involved with that entrenched promotional technique for all those years? To the extent that it "paid off" when a handful of records hit the big-time, fine--that was then. For the music industry to move forward in the 21st century, it has to relinquish that pray-for-a-blockbuster mentality, and the marketing techniques that went along with it.

Give people one song, make it easy to download and use anywhere they want. That's how you get your records played on these individual "radio stations." They usually have just one listener each, but there are millions of them across the country.

3) One free and legal MP3 per album makes for easier and less confrontational policing.

For starters, if there is automatically going to be one free and legal MP3 from every album, right away you'll have fewer bloggers posting illegally distributed tracks. I'm guessing many will be happy to stick with the legal one, particularly if approached reasonably; right now, for far too many albums, and for pretty much every major-label album, they don't even have this choice.

Second, when labels set about policing things online, they can use an approach which is kinder and gentler and thus much more likely to move future music-sharing behavior in a more legally-oriented direction. "The track you have been sharing is not legally available for free online distribution," the email can state. "However, were you aware that the song 'Free and Legal,' from the same album, is in fact available for free online distribution? Here's the link."

Or whatever. The point is, with one sanctioned free and legal song from every album, the record industry will finally be closer to being on the same page as 21st-century music fans. Record labels will effectively be entering their world rather than creating phony and pointless and old-fashioned barricades.

This strikes me as a more important issue than anyone seems to bother to realize. Thanks in large part to its well-known campaign to sue people who were illegally downloading their songs, the major record companies spent the better part of the current decade in open conflict with their own customers and potential customers. As a believer from the outset in free and legal MP3s, I obviously have no sympathy for those who have chosen to download a lot of music illegally, but I also have no patience for record companies who choose only to see that behavior as reprehensible rather than try to understand the context and work to find a middle ground.

After all, the record companies, from the outset, could have combatted illegal downloading with this idea: "Hey! Do legal free downloading instead!" But they chose instead to see this as a war and to see their customers and potential customers as enemies. Not real smart in the long run.

I would also, by the way, have no sympathy with bloggers who, in a world in which there is a free and legal MP3 available from each album, would continue to post songs that are not freely and legally distributed. Bloggers are perfectly entitled to tell the world what songs they like; they are not entitled to decide on their own what songs to make available for public consumption. This is a freedom that many presumed to take from the outset, but this freedom continues to have no basis in fairness or legality.

4) If you have to give away one good song this means you must, in theory, put out albums with more than one good song on them.

Needless to say, this would be another excellent outreach strategy for a bedraggled industry.

Although I can offer no direct evidence of this theory, I am pretty sure that there exists in the music industry an additional resistance to free and legal MP3s that has to do with the suspicion that if a music listener gets one good song for free, they won't buy the rest of the album. (After all, why else would Mr. Nonesuch be so resistant to releasing one Sam Phillips song?) To the extent that this is true, I'd say that music listeners have been well-trained over the years by their experience with albums that have only one good song on them in the first place.

As long as giving away one good free and legal MP3 from an album is the equivalent of giving away the store, as it were--because it is in fact the only good song--then, yes, this is a legitimate concern. There is one pretty straightforward solution to this, however: make sure the albums you're releasing are actually good. The days of fooling people into buying a whole album based on hearing one good song really have to be over if the Free and Legal MP3 Manifesto is to be effective. Surely we don't need so many albums anyway, as fewer people appear to be interested in buying them in the first place.

Note that this does not mean there will be no more albums. Can we finally agree to put an end to this black-and-white, all-or-nothing, sound-bite-oriented world view? If albums are going through a less-popular phase this hardly warrants the idea that no one wants to record them or listen to them henceforth and forevermore.

5) The music industry herein has a newborn opportunity to affirm the value of what it is selling.

Okay, so stick with me here, because I know that lots of people still think that handing out free digital music undermines the idea that music has value. To begin with, songs have become mere files, and files are eminently and endlessly copyable and distributable; add to that free distribution and where's the value? Where's the possibility that people will pay for it?

And the record companies themselves have gotten so spun around and bamboozled by the fledgling century's digital realities that here they are, after years of complaining that giving away free music compromises the idea that music has value, lining up to experiment with the idea of giving unlimited access to music on streaming sites via a minor or bundled fee--something, ideally, that the end user won't even notice or realize he or she is paying.

Talk about devaluing music! Treating music as a utility, like electricity or water, inherently devalues the artistry and effort of any individual artist, the subjective worth of any given song. But the industry seriously considers this idea now because, well, it's desperate, like an addict whose supply has pretty much run out. It'll try anything to get its mojo back.

Returning to the spirit of the Inaugural Address, I'd like to suggest that the industry seek not the pipedream fix but seek instead the true opportunity in this long-standing crisis brought on by digital distribution. What that opportunity may be is nothing less than the full embrace of what it has to offer us.

I mean, think of it: here are companies selling one of humankind's most profound creations: song! Often grouped into album! And for decades upon decades now, these same companies have largely sought to treat their products as just that--mere products. (Or, in true industry parlance, the singular: "product.") But these aren't screwdrivers and frozen pizzas that are being sold. This is music. The word itself has magic in it. When something is music to your ears, it's wonderful, delightful, perfect. When you have to face the music, you're dealing with something significant, serious, not to be ignored.

I know that many many musicians have been waiting, without hope or encouragement, for record companies to understand the inherently special nature of their offerings, waiting for the suits and the bean counters to take into account the personal, aesthetic, subjective, and artistic aspects of their so-called products, not just in terms of projecting sales but in terms of how they do business from the ground up.

And now: here's their chance. Not by forcing value upon us (e.g. suing from an aggrieved position) but by proactively asserting that their products do indeed have value. Invaluable value.

And they can do this, paradoxically, by first offering us a gift. Never mind the promotional merit (which, as discussed, is real and significant)--how about simply seeing the mandatory free and legal MP3 each album must offer, according to the Free and Legal MP3 Manifesto, as just that?: a gift. The record companies and artists will give this gift to music fans, now, because the technology has long since arrived to make it possible, because it's a valiant way to break into our fragmented, overconnected lives, because they so value what they produce that they want, first, to share it with us.

Because: when they hand out a yummy free sample of something earthy and organic at Whole Foods, do you think, "Well, gee, this must be worthless if they're willing to give it away?" Or, "Hey, this must be pretty good or they wouldn't be giving out tastes?"

The music industry has completely blown it so far, but here at the outset of what clearly is a brand new day I'm thinking maybe it's not too late. And we, the music fans, can assume our responsibility in the matter as well. We can receive this gift with newfound appreciation. And with our appreciation we can likewise offer our hard-earned dollars when we hear something that moves us, that lifts our spirits, that assures us that it was created out of hope and inspiration and artistry.

And yeah I know not every piece of music is created in this manner. And I know this whole issue is complicated by convoluted circumstances and thorny issues. But I have a dream. And now I have a Manifesto. Change, as we have seen, may begin with just such things.


"The Sound of a Brand New World" - posted 10 Jan 08
"The Future (or not) of the Album" - posted 2 Aug 07
"The Secret...okay, a different one" - posted 24 Mar 07
"Foulplay" - posted 16 Jul 05
"14 Arguments for the Elimination of Pop Music Critics" - posted 10 Feb 05
"Alarmed" - posted 16 Mar 04

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