So it's telling that online music distributors (OMDs) are among the few start-up companies that consistently manage to stay up longer than it takes to download their products. All too often, though, they do it by balancing on the backs of musicians who don't know how much their product is worth. Using a potent mix of techno-speak and marketing hype, OMDs such as MP3.com, Tunes.com, and Yahoo Broadcast Services (formerly known as Broadcast.com), along with a bevy of look-alikes, are gobbling up free music (er, content) in staggering quantities.
OMDs have been enormously successful at painting a full-color media picture of themselves as virtual Davids out to slay the mighty recording industry Goliath. By promoting themselves as cool, underground, anti-establishment sites fighting the good fight on behalf of poor, downtrodden musicians everywhere, OMDs have persuaded thousands of musicians (a whopping 28,000 in the case of MP3.com alone, according to MP3.com's CEO, Michael Robertson) to hand over their tunes, no questions asked.
People like Robertson want consumers to believe that the Internet puts the reins of power back into the hands of the artists. But what he and other OMDs really mean, of course, is that the Internet puts the reins of power into their hands.
It's a mighty attractive business model: scot-free use of inventory, with minimal accountability to the owners of that inventory, which generates revenue from music fans, from advertisers, from the artists themselves -- even, according to one industry insider, from the recording industry. But why on earth would an artist want to give up all rights to his singles -- the very cuts that have generated the most revenue historically -- and, for the most part, to a start-up company at that?
"No one's paying independent artists right now," says Brandon Barber, product manager of digital music for Tunes.com. Barber's site is a music hub that controls RollingStone.com, TheSource.com, and DownBeatJazz.com; it offers professional music reviews and Webcasts, in addition to downloadable music. According to Barber, Tunes.com is considering paying artists in the future, but is "trying to be as agnostic as possible until a standard emerges."
A standard does exist, of course, and has for years -- it's just being ignored by OMDs. It's called copyright, and it ensures that artists get paid when companies make money off their music. Basically, there are two types of music copyrights. One is the right of the songwriter to get paid every time someone performs one of his or her songs. The other is the right of the performer to get paid every time his or her performance of a song is reproduced or broadcast. It's simple, really. Furniture-makers own the furniture they make; songwriters and performers own the art they create.
But because songs and performances are harder to track (and easier to steal) than, say, a sofa, copyright owners have the option of registering their work with performance organizations (ASCAP/BMI/SESAC) and reproduction licensing organizations (the National Music Publishers' Association's Harry Fox Agency). These organizations exist to track the use of copyrighted songs and pay royalties back to the rightful owners. Specifically, the performance licensing fees that radio and television stations, film companies, live venues, and even jukebox owners pay to ASCAP/BMI get kicked back to performers; the reproduction licensing fees that recording companies pay to the Harry Fox Agency get kicked back to songwriters.
Contrary to popular opinion, which still views the Web as a kind of anything-goes frontier, U.S. copyright law already addresses music distributed over the Web. So do performance and reproduction licensing organizations. Whether they admit it or not, OMDs follow the radio model when they allow visitors to stream song files, and the record-pressing (distribution) model when they allow site visitors to download MP3 tunes. So why aren't they coughing up licensing fees like everybody else?
"This is all still in the infancy stage," says Steven Phenix, director of publicity for WorldNet Box Office Inc., a company that Webcasts and archives live music performances at ClubCastLive.com. "We plan to renegotiate the contracts artists sign with us in the future so that, eventually, they will make money."
His cheerfully optimistic sentiment was echoed by Jim Werking, president and CEO of AustinMP3.com, which distributes downloadable MP3s by Austin, Texas-based artists without compensating them -- although Werking say his company plans "to create opportunities for artists to profit from their work."
"Nobody knows what's going to happen with online music," Werking says.
History, of course, begs to differ.
According to the National Music Publishers' Association, every new advancement in music reproduction and distribution technology has spawned the same tired argument. First, it was TV and radio broadcasters who claimed they should be able to use music for free, arguing that broadcast exposure helps sell records. Then it was film and television producers; next, restaurant and club owners. In all of these cases, organizations representing musicians -- from established record-industry alliances to unions -- finally forced companies to follow the law and pony up for the value they were receiving.
Technically, OMDs aren't stealing music; they're talking independent musicians into giving it away. Some would argue that this is a subtle difference, but it does exist.
How do they do it? By requiring indie artists to sign outrageously one-sided contracts for the privilege of -- get this -- Being on the Web.
"It's absolutely ridiculous," says band manager Vicky Moerbe. "The Webcast contracts I've seen expect musicians to sign away everything. Not just the right to broadcast their shows, but to archive them, turn them into CDs, make money off them from now until forever -- all without paying the musicians a dime. You know, musicians make little enough as it is, and here these companies are trying to get rich off them."