Music: The Internet’s Original Sin

Cory Doctorow

In a recent Search Engine podcast, host Jesse Brown wondered about music’s ongoing centrality to the debate over file-sharing and freedom. After all, the music industry has all but abandoned lawsuits against fans, and services from Last.fm to the Amazon MP3 store present a robust set of legit ways of hearing and acquiring music. The labels have even abandoned DRM. So why is the music industry the enduring bogeyman of Internet policy fights? Brown called downloading music ‘‘the Internet’s original sin,’’ and posited that we’ll go on talking for music for a long time yet.

I think he’s right. Music exists in a sweet spot between commerce and culture, individual and collective effort, identity and industry, and digital and analog – it is the perfect art-form to create an infinite Internet controversy.

Let’s start with music’s age. Movies are still in their infancy. Books are in their middle age. Stories themselves are ancient. But music is primal. Books may predate commerce, but music predates language. Our relationship with music, and our social contracts around it, are woven into many other parts of our culture, parts that are considered more important than mere laws or businesses. The idea that music is something that you hear and then sing may even be inherent to our biology. I know that when I hear a catchy tune, I find myself humming it or singing it, and it takes a serious effort of will to stop myself. It doesn’t really matter what the law says about whether I am ‘‘authorized’’ to ‘‘perform’’ a song. Once it’s in my head, I’m singing it, and often singing it with my friends. If my friends and I sing together by means of video-sharing on YouTube, well, you’re going to have a hard time convincing us that this is somehow wrong.

Music is also contingent. The part of a song that is ‘‘musical’’ is totally up for grabs, and changes from society to society and age to age. The European tradition has tended to elevate melody, so we think of ‘‘writing a song’’ as ‘‘writing the melody.’’ Afro-Caribbean traditions stress rhythms, especially complex polyrhythms. To grossly oversimplify, a traditional European song with a different beat (but the same melody) can still be the same song. A traditional Afro-Caribbean song with a different melody (but the same rhythm) can still be the same song. The law of music – written by Europeans and people of European descent – recognizes strong claims to authorship for the melodist, but not the drummer. Conveniently (for businesses run in large part by Europeans and people of European descent), this has meant that the part of the music that Europeans value can’t be legally sampled or re-used without permission, but the part of the music characteristic of Afro-Caribbean performers can be treated as mere infrastructure by ‘‘white’’ acts. To be more blunt: the Beatles can take black American music’s rock-n-roll rhythms without permission, but DJ Danger Mouse can’t take the Beatles’ melodies from the White Album to make the illegal hiphop classic The Grey Album.

The reality is that all music takes from all other music, anyway. They called Brahms’s first symphony ‘‘Beethoven’s Tenth’’ for reasons that are immediately apparent to anyone familiar with both composers. The parts of music that can be used under the banner of ‘‘inspiration’’ and the parts that constitute ‘‘infringement’’ or ‘‘plagiarism’’ or some other frowned-upon taking are arbitrary, and there is an enormous gap between how the law treats music production, how music producers describe what they do, and what scholars who study music see happening.

Meanwhile, the recording industry has always had a well-deserved reputation for corruption and maltreatment of artists. From the recurring payola scandals that crop up every decade or so to the never-ending stream of stories about the bad deal musicians get, the industry has never been able to credibly claim that buying artists’ creations from their labels will end up enriching the artists themselves. No fan cares much about the commercial fortunes of labels themselves – if we care about anyone, it’s the musicians. When you learn that – to pick just one example – the labels only recently ended the practice of running secret ‘‘third-shift’’ pressings in the dead of night, CDs that were not on the books and that were sold without generating royalties for the artists, it’s hard to credit the idea that taking music without paying for it always harms artists. Incidentally, the thing that stopped third-shift pressings wasn’t ethics or artists’ rights movements – it was the provision in Sarbanes-Oxley that made executives personally, criminally liable for balance-sheet frauds.

Maltreatment of the talent isn’t unique to music, of course. But movies don’t have obvious ‘‘creators’’ to sympathize with. Rather, they have directors (who tend to be either totally unknown or incredibly rich and famous), and actors (ditto). Even screenwriters have a reputation for being awfully well-off when compared to other kinds of writers, especially novelists. And while novelists are obviously the creators of the books we love, the standard novel publishing deal is much better than the standard recording deal – a licensed work rather than a work for hire, no expenses charged back against the creator, more transparent royalty reporting, etc.

I think even the record industry recognizes that appealing to the innate justice of its survival and profit is a nonstarter. That’s the only explanation I can think of for their campaigns in the past decade that have focused on the risk to young peoples’ moral character as a result of file-sharing. This is a pretty poor argument, of course: when the record industry spends half a century telling would-be censors that it is not in the business of safeguarding the morals of young listeners, it’s pretty rich for the same industry to turn around and announce that it is only suing and threatening kids to save them from a life of sin and degradation.

Music production is also in the sweet spot between movies and books when it comes to technological advances. It’s true that word processors, desktop publishing, and e-books have increasingly led to a credible notion of a truly independent author who does it all for herself, but the one-man music studio is a more advanced than the one-writer publishing house. Meanwhile, movies are still generally viewed as enormous collaborations requiring big, complex companies behind them to coordinate all the big, complex tasks that go into making a feature. There is a widespread sense that almost everything a record label does can be done by the musicians themselves, using the same equipment that the rest of us use to play Minesweeper and watch YouTube. The reality is that there are many musicians who can write or perform a song, but can’t arrange or edit or master or market or bookkeep that song, but it’s still pretty easy to imagine a world in which all the current record labels die, but recorded music continues to thrive.

Back at the beginning of the file-sharing wars, during the delirious 18 months during which Napster went from zero to 52 million users, much of the focus was on the novelty of getting music for free – but there was also a lot of buzz about getting some of that music at all. Prior to Napster, more than 80 percent of recorded music wasn’t for sale (except as uncatalogued, obscure used LPs). The record industry had always enjoyed both the savings from not having to warehouse and manage all those physical products, and the increased profits that arose from limiting choice. Napster, the original long tail marketplace, showed that audiences hungered for abundance of choice.

Twelve years later, abundance is the signal characteristic of all media. The media choices available to us are staggering in their variety and depth. As I write this in mid-2012, there’s an hour of new video appearing on YouTube every second. Video-on-demand services like Netflix present libraries that make the biggest Blockbuster store of yore seem like a single shelf at the back of the corner shop. Amazon’s self-publishing platform is attracting thousands of new books, from marginal titles of extreme specialist interest to algorithmically generated spam titles that repurpose Wikipedia entries and random scraped Internet text. There’s also plenty of fiction, some of which is brilliant and much of which is in the ‘‘90 percent of everything is shit’’ region predicted by Sturgeon’s Law. Curation is the watchword for the coming century: some process by which you are able to outsource some of the reviewing and ranking of all this material to communities, algorithms, or individuals.

But the accelerating growth of media in the online world means that no matter how carefully you choose your curators to ensure that you’re getting just enough media and not being overwhelmed, you will still end up overwhelmed. Everyone feels like there’s more media than they can handle coming in through the narrow, select channels they opted into, from Facebook and Twitter to a favorite blog or podcast. It’s not enough to choose one’s channels carefully; you also have to be able to skim what comes through those channels and make snap decisions about what you will experience in depth. Blog posts and quick YouTube clips are easy enough to glance at and decide whether they’re for you or not.

But novels and feature films are damned hard to ‘‘skim.’’ Figuring out whether you like a novel enough to read it through requires a substantial investment of time and attention. Deciding whether to watch a feature film, likewise.

A lot of music reveals itself well and quickly. Sign up for a predictive personal radio station like the ones provided by Last.fm, and you’ll find that it only takes a few bars’ worth of sound before you know whether you’re going to keep listening or hit the skip button.

What’s more, music is well-suited to multitasking, that characteristic survival activity of the 21st century. It’s not easy to read a novel while doing something else – notwithstanding the comedy cliché of a bookworm proceeding down a public road with his nose in a book – and movies also want you to switch off everything else while you watch them.

Music is much less jealous of your attention, perfectly comfortable with fading into the background. If you’re one of those people who works with music on all the time, you want your music to come out of your device like water coming out of a faucet. It’s natural that music that ‘‘feels free’’ fits right into our lives.

It’s also customary – and simple – to reference music. Whistle the Jeopardy! theme when a friend dithers over the menu at a restaurant; ‘‘Whistle While You Work’’ when you want to get your roommates to pitch in and pick up after themselves; ‘‘Blue Skies Smiling at Me’’ when spring has finally sprung where you are (and ‘‘April Showers’’ when the rain comes back). Sure, we quote iconic movie-lines at each other, and everyone knows a few literary quotes, but music is quoted much more widely in our daily lives – and in music itself, which is chock full of snatches from other music – than other media. When it comes to learning to be a musician, re-use, copying,­ and performance are central: you learn to play music by playing other peoples’ compositions, period. Budding filmmakers may try to re-create their favorite scenes, or work in ways that are obviously inspired by their predecessors; young authors may copy out a favorite passage to see how it works. But music is a field in which it is considered central and normal to reproduce others’ creations for years, commercially and privately, as a means of earning your chops.

All these factors – music’s suitability to a world of abundance, music’s ubiquity in our culture, music’s freight in our history, and the industry’s tarnished reputation – mean that the Internet and music businesses will continue to collide for the foreseeable future. There’s no end in sight to this controversy.