Independent Music’s Right to Fight

All of these services are likely to turn to formats more secure than MPEG layer 3, such as Liquid Audio or Windows Streaming Media, compression technologies nurtured under the Digital Millennium Copyright Act of 1998, which put a legislative stamp on record-industry profits. Under the provisions of the DMCA, anyone who cracks the code of an encryption scheme or watermark designed to protect copyright can be prosecuted under federal law. The legislation has already been used to control people who link to computer code or post certain programs such as DeCSS, which the magazine 2600offered as a means to break the anti-copying protection on DVDs. 2600has so far lost in federal court, but the decision is being appealed; meanwhile, DeCSS is being printed up on T-shirts. An industry alliance called the Secure Digital Music Initiative (SDMI) is monitoring online music for similar transgressions.

This effort is being expended, say the Big Five, to protect the rights of artists and at the same time ensure that the consumer will have a manageable interface for a wide range of music, conveniently filtered for their listening pleasure by an expert (or robot). But music has a pesky habit of resisting all efforts to commodify it. It thrives on cult interest and mystery, loses magic when it's too tightly controlled. If the variety in the music libraries available on Napster proves anything, it's that consumers, given choices that are effectively infinite, do just fine. Analog Pussy and other electronica acts capitalized on the Internet's capacity for connecting eccentric pockets of fans, and independent retailers and distributors who cater to select audiences have found on the Internet the ideal bazaar for their irregular wares.

MP3.com was always a non-discriminating portal, accepting all artists regardless of genre, following or merit. It has functioned somewhat like a label: Under the terms of its "Digital Automatic Music" (DAM)/netCD program, the company produces and sells special CDs of an artist's music, which contain MP3 tracks that can be played on an ordinary CD player. MP3 also offers a "Digital Publishing Channel" option that provides musicians the means to make their music available through a "paid subscription channel" they administer themselves. Artists can enroll for free in MP3.com's "Standard Program" and earn 50 percent of the revenues on CD sales. The Standard Program until recently included "Payback for Playback" revenues as well, a small amount of money, usually a few cents, paid to the artist for every download of a song (Analog Pussy typically made over $6,000 a month on P4P). As of April 1, only "Premium Artists" -- those willing to pay a $19.99 monthly fee -- earn P4P money.

The service has its friends and foes. It has paid out $160 million to record companies for copyright violation, including $53 million to UMG. One group, Tokyo Dawn, pulled all but one of its songs from the site when it determined that the site's P4P option created an unfair hierarchy among the site's participants (a band's earnings show up for all to see underneath its picture); Randy Newman and Tom Waits are currently getting in the long line of the company's litigants over unauthorized use of their music. But before things got ugly, Analog Pussy believed in MP3.com almost as if it were religion. ("I sang them in my sleep," Jiga told me.) For certain independent musicians, the site's controversial visibility worked in the artist's favor.

"I've had five and a half million downloads," says Mikel Fair, also known as the Houston-based 303Infinity, who in 49 weeks during the year 2000 had singles in MP3.com's Top 40. "I never expected I could get that kind of attention anywhere. The electronica section has thrived, because dance music just doesn't get airplay. There was one point at which electronica was so popular that you could hardly distinguish between the electronic Top 40 and the general one."

Fair worries a little that the Vivendi Universal acquisition of MP3.com will become "geared toward promotion of Universal's products," and admits that changes to the P4P program, which began last December, have significantly reduced 303Infinity's earnings. "The P4P formula is a bigger secret than Coca-Cola," he says. But he insists that people who have been suspended from the system have been justly accused. "Every single artist who has been suspended has been suspended for serious cheating allegations," he avers. "No -- not just allegations, activities. MP3.com has an entire team of people investigating on a daily basis. They're not suspending people to save money for a car payment."

MP3.com's P4P FAQ defines cheating and gaming as "any mechanism put in place by a participant that takes the place of real fans." Fair himself was investigated when his MP3.com site was linked to an "automatic play" site, where MP3-linked windows pop up on a user's computer insistently until the machine has to be rebooted. He doesn't know how he was cleared, exactly, and when I asked him what made him so certain that other artists were guilty, he grew a bit more circumspect. "I guess it's just my opinion. I can't verify it, but if they weren't cheating and MP3.com said they were, it would threaten the integrity of the whole company."