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Independent Music’s Right to Fight

Photo Courtesy Analog Pussy

I RECOGNIZED HER VOICE IMMEDIATELY, EVEN IN HER DISTRESS, even though it had been a long time since we'd talked. Jiga, the 26-year-old female half of Jiga + Jinno, otherwise known as the Goa trance duo Analog Pussy, was calling from the home she shares with Jinno in Bocholt, a German town near the Netherland border. I detected tears in the pace of her breath, the pitch of her first few words. I figured it must be 2 o'clock in the morning. "How are you?" I ventured. "Well," she said, "I'm a little bit confused. Would it be all right, do you think, if for these first three minutes I talked to you not as a journalist but as just another person?" I agreed, and Jiga began her story.

"You know," she started in, "for six months we've been all over the charts at MP3.com. We'd made over $35,000 there." Only a month ago, I had marveled at Analog Pussy's lock on MP3.com's Top 40 -- not the trance Top 40, or the electronic Top 40, but the general Top 40. One of their singles, "Shperma Pornomatic," ranked No. 5, right under Faith Hill and three spots above Madonna. There were four more Analog Pussy tracks on the chart, including "Fight to Trance" at 33, and "JigaBabe" at 31. On May 7, their "melodic trance" single, "Beautiful Stars," climbed to No. 1.

"About two weeks ago, somebody from MP3.com contacted us by e-mail," she continued. "They said they were going to take back the money we had earned and redistribute it, and drop us completely off the site." Jiga wrote back, pleading with the "KGB," as MP3.com's Artist Activity Department has been nicknamed for its habit of recruiting informers. She asked them to explain. They refused. "They said only that 'We suspect that you and other artists are involved in suspicious activities. Then they wanted us to admit to these activities before they even tell us what they are. They kept referring to 'the original issues.' We said, 'Okay! We plead guilty! Just tell us what we are pleading guilty to.'" Still no answer. "I finally figured out that it's just what happens when you earn too much money there," Jiga concluded. "Then they don't want you anymore."

On May 20, roughly a week after Artist Activity's accusatory e-mail to Analog Pussy, MP3.com announced it had been acquired by Vivendi, the French utilities-company-turned-media-conglomerate that owns Universal Music Group, the corporation that in the process of subsuming smaller labels has drawn the wrath of other artists, including Courtney Love. In Love's lawsuit against Vivendi Universal, she complains that when she and her band, Hole, signed with Geffen, her contract promised "unique services," which disappeared with the boutique label's autonomy. L.A.'s Ozomatli made a similar claim against Interscope when the label acquired Almo Sounds, the small independent where the band had labored happily in relative obscurity; suddenly it was expected to churn out hits. Aimee Mann, whose battles with record labels have defined her career since she left Epic in 1993, re-acquired her last album, Bachelor No. 2, from Interscope "after that company lost interest in most of its sub-blockbuster artists following the Universal merger," according to her Web site.

MP3.com is, if not a label, a centralized place where unsigned musicians can pretend they have a label and promote themselves. "You could have your page, with your own page content," Jiga said. "It has been so, so good for artists." The company offered a post-buyout FAQ for concerned artists, addressing the question on everyone's minds: "Will MP3.com artists remain independent?" The answer: "Yes. The terms and conditions of various artist agreements will not automatically change as a result of this transaction." Automatically carries a lot of weight in that sentence.

Analog Pussy is not likely to be of much use to Vivendi Universal; the group already has a label, Hadshot, in Germany, for which it sold about 30,000 copies of its last record. Most of their passionately wired fans in the international techno-trance scene come to them online: The Internet allowed the dedicatedly underground Analog Pussy to become the rare Goa act to gain recognition in the broader international rave scene. Now, it seems, one of their most powerful publicity tools has been ripped out from under them.

"I don't understand -- isn't America supposed to be about human rights?" Jiga asked. An even trickier question is whether the Internet is supposed to be about unexpected successes, cultural surprises. There was a time in its early years when the Web promised a parallel universe of fabulous chaos -- a place where anything could happen, anyone could score what would have been otherwise impossible. With MP3.com's sudden absorption into the multinational hit-making market, that universe seems in peril.

IN 1993, JEFF PATTERSON, A 19-YEAR-OLD SOPHOMORE AT THE University of California Santa Cruz, uploaded his band's single, "Tower of Babble," to the Internet. He could not have predicted the consequences. Like Dorothy throwing water on a witch in flames, he probably thought he was doing something helpful, like giving record companies a chance to discover his talent. His band, the Ugly Mugs, had developed a following in the Bay Area bar scene, and Patterson had wangled enough studio time for the band to record a demo. But no one had the cash to press a CD. Jeff Patterson just wanted the Ugly Mugs to be heard.

One day, in computer-science class, Patterson consulted a fellow student, Rob Lord, who suggested that they sink $100 into the software required to digitize a song in MPEG layer 2 format and distribute it on Usenet, a network of discussion groups that was then the most heavily trafficked branch of the Internet. This was not the Internet we know today, what with its swarms of MP3s and disruptive file-sharing applications that have Metallica's Lars Ulrich in night sweats and the Recording Industry Association of America maneuvering its members into lock-down like anarchists at a WTO meeting. When Lord and Patterson posted "Tower of Babble" to the Usenet newsgroup alt.binaries.multimedia, they did it in 26 encoded parts. "We'd get messages like, 'Uh, could you repost part 24 please? It seems to have dropped out.'" The response overwhelmed them: "We got 30 or 40 e-mails from all over the world," Patterson remembers. "We thought, 'Jeez, there's some guy in Turkey wanting American music!'"

Patterson and Lord may or may not have been the first ever to upload a song on the Internet, but they were the first to share their tools with other musicians and launch a business based on the potential for distributing music with this new technology. Within months of that first Usenet posting, the pair began uploading their friends' bands' music and fielding requests from musicians around the world who wanted to mimic their strategy. With songs pouring into their vaults, they set up an FTP site where they could store the files whole and unencoded, and called it the Internet Underground Music Archive, or IUMA. Each band was asked for a donation of $10 to $20. "But to our surprise," Patterson recalls, "there was so much enthusiasm that everyone sent in $20."

If IUMA was meant to be a means of showcasing songs in the hope of getting a label's attention, it evolved into a place where a musician who was dropped from a label or never signed a contract at all could build a fan base without spending thousands of dollars on marketing. Where once only the privileged artist of cult fame -- Zappa, for example, or the Grateful Dead -- could disdain a record company's support or reject it altogether, IUMA was creating a model by which obscure musicians could dream of making good without a label's largess. By 1995, IUMA was a full-time operation with a staff. And Patterson made a prediction: "By the year 2000," he declared, "anyone with a sound card should be able to listen to a complete online [music] library." Unlike so many early predictions about Internet technology, this one came true.

In the year 2001, online music libraries are dominating entertainment law, dinner-party discussion, trade-magazine articles, and even content on gearhead Web sites once dedicated to cryptography and code writing. MPEG layer 3 audio compression, more commonly known as MP3, has been widely available since 1996, making it possible to reduce the size of an audio file by a factor of 12 while still preserving most of its fidelity. Broadband services running into ever more households have reduced the time it takes to download those files. Most of all, peer-to-peer file-sharing services such as Napster have promoted the idea that the Internet is a place to find music.

Since the phenomenon of Internet music became impossible to ignore in the late 1990s, the RIAA has positioned itself as its victim, characterizing online music traders as hacker pirates and describing the circulation of digitized tunes as music-business losses. Yet networked computers merely stepped into a widening void, created in large part by the industry's own profit-obsessed impatience with anything but the most generic of artists. MP3.com and Napster gained recognition not just by offering free music but by catering to individual desires in an increasingly homogenized market controlled by five multinational corporations with their souls in the international stock market: Universal Music Group, Sony Music Entertainment, BMG Entertainment, AOL/Time Warner and EMI/Capitol.

MP3.com's new parent, UMG, owns 16 labels, including A&M, Decca, Deutsche Grammophon, Geffen, Interscope, Island Def Jam, Jimmy and Doug's Farmclub.com, MCA Nashville, MCA Records, Mercury, Motown, Philips, Polydor, Universal and Verve Music Group, "as well as a multitude of record labels owned or distributed by its record-company subsidiaries around the world," according to its own press release. To make matters worse, commercial radio has been eviscerated and left for dead by the rise of Clear Channel Communications in the wake of the 1996 Telecommunications Act, which lifted media-ownership restrictions.

But the Internet, to paraphrase cypherpunk John Gilmore, interprets corporate interference as damage and routes around it; the eccentric and marginal find a perpetual audience online. The Big Five might still know how to engineer a hit; what they've forgotten is how labels like Elektra or Warner, before the buyouts, roped in fringe audiences by supplementing their pop rosters with idiosyncratic acts of genuine artistic merit. Those audiences are now being forced to follow their artists to Web sites.

 

AFTER JUDGE MARILYN PATEL OF THE FEDeral District Court required Napster to filter out copyrighted material being exchanged on its distributed network of servers, the record companies rushed to create their own downloadable music portals. AOL/Time Warner, Bertelsmann AG, EMI Group and RealNetworks have concocted a plan to license songs to subscription services via a venture called MusicNet, which recently inked a licensing agreement with Napster. MP3.com's technology and community will augment Duet, a service concocted by Vivendi Universal, Sony and Yahoo. MTV plans to sell downloadable singles and CDs through RioPort. IUMA is a brand now, acquired by the online subscription service Emusic in 1999, dropped when Emusic ran short of cash, re-acquired by Italian-based music portal Vitaminic the same week Emusic was bought, for $25 million, by UMG.

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 2600 offered as a means to break the anti-copying protection on DVDs. 2600 has 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."

"VIVENDI MAKES TOILETS," JIGA HISSES OF Jean-Marie Messier's media conglomerate. "Did you know this?" More accurately, Vivendi has supplied water to much of France since the middle â of the 19th century; only in the last five years has its 44-year-old CEO turned the focus to media. "What do they understand about music? Why would they be accountable to us?"

By their own reckoning, Jiga + Jinno have promoted their music and their MP3.com Web site aggressively. They bought paid ads on Google, they included the site in their 16,000-subscriber e-mail newsletter, they mentioned the site onstage every chance they had. But promotion is not prohibited by MP3.com, and they adamantly insist that they followed the terms of their agreement with MP3.com to the letter. They had simply mastered the art of Internet marketing, which is not suprising after five years of practice.

"We started out on the Internet by giving people free music," says Jiga, "and we just did it because we wanted to be heard." In 1996, the pair put up their first Web site, loaded with MP3 tracks. "Then we went on to a channel on the IRC [Internet Relay Chat] and told people, 'Go listen to our track -- it's in MP3.' And people would write back, 'What? What's an MP3?'

"Now if you did that, it would be considered spam. But back then, it was a way to get rolling. And we thought, all right, we won't make any money out of it, but at least somebody would hear these new tracks we were making, and be happy about it. And it started such a craze -- people started e-mailing us and saying, 'Take my e-mail address and let me know what you're doing.'"

By the end of their first run on IRC, Jiga + Jinno had 8,000 e-mail addresses in their database. Soon after, offers to appear live started streaming in. "We started to get gigs all over the world, and that was because of this one release. Our first serious show was in Holland, and it happened when this man wrote to us and said, 'YOU'RE ANALOG PUSSY! I WANT TO BOOK YOU!"

Performing is Analog Pussy's livelihood. "Two years ago, when we started our tour of Europe," Jiga recalls, "nobody knew about Analog Pussy, except in Israel, and the promoters took a big bet on us. And we came out -- I played cello, and Jinno played synthesizer -- and we slammed." Five hundred people showed up for that first show in Holland. Later that year, 2,000 turned out for Analog Pussy in Ibiza; 3,000 on a mountain in Germany; 5,000 nine months ago in England. They have played Hungary, Brazil, Switzerland; a U.S. tour begins this July, in Atlanta.

All the pictures from those live shows go up on Analog Pussy's own Web site, www.analog-pussy.com, "and we also find out what are the main regional Web sites that are connected to raves. We make sure they announce the show, and go to the Web site to see what people are saying, and drop a word to the forum. Two months ago we were in Canada, and again we made sure all the Canadian forums would be aware of the show, and we dropped some lines there. We had like 284 messages, and 3,000 people turned out for the show."

Jiga + Jinno have been making music together for seven years, and they'd already released two discs on big labels when their Internet careers began. "We released one album in Israel and another in Germany," says Jiga. "But we saw how the vicious cycle worked: A label spends a lot of money on selling an artist, then the sales aren't what the label expects, and they say to the band, 'Oh, you suck! It's not our fault; give us the advance back!'" Hadshot makes some money on Analog Pussy's CD sales, but Jiga + Jinno see little of that money. "We are overbooked for gigs every time, and that is the real money," says Jiga. "And a big video game company has asked to use eight of our songs. We found that when we put music out for free, we get money back in other ways, big time."

But for a signed artist with other sources of income, the real advantage of the Internet has not been money, but freedom. "First of all, it costs us nothing, really, except for the Internet connection," Jiga told me last March, while Analog Pussy was still being promoted heavily as a top artist on MP3.com. "I don't have to make a big campaign, and I can control everything. This is the coolest thing -- I can do everything I want, release everything I want, decide on the art, decide what CD I want to sell. Second, I make a separation between the real world and the virtual world. In the real world, the label gets a say in everything. In the virtual world, I am queen. No label will tell me anything. The Internet gives me the freedom to invent myself. Power to the artist! I can now make tracks in artistic freedom."

Now, "the virtual world is worse than the real world." Artist Activity suspended Jiga + Jinno three days after MP3.com solicited their testimonial. Jiga wrote a paean to the service, celebrating her liberation from labels and the "dirty" industry. She didn't know she was implicating the site's new boss. When the KGB e-mail arrived, Jiga cited her written praise as proof of her loyalty: "I wrote back, 'But we're still on your testimonials!'" Artist Activity responded, "Thank you for your commentary." The testimonial disappeared.

Jiga spent hours combing over Analog Pussy's P4P statistics, looking for evidence of automatic plays and mass downloads. She noticed strange visiting habits coming from IP addresses in Malaysia and Taiwan, although the repeat listings were too obvious to have affected the group's MP3.com ranking. She forwarded her findings to Artist Activity, "but they said, 'No, that's not it. It's not in the raw data.'" Baffled, Jiga wrote back again, beginning an eerie cycle of correspondence with an anonymous Orwellian entity. "What we look for . . . is candor from the artists involved," wrote the entity. "Then we can discuss modifying our stance." To which Jiga replied, "Are you asking me to admit to a mysterious crime that I HAVE NOT DONE? I declare to you with all my brain, mind, heart, body, soul, spirit: I DID NOT do anything . . ." The correspondent, at artistactivity@mp3.com, then began referring to itself in the first person: "I understand your denial is heartfelt. I suppose we've reached the end of our discussions on this subject, but please, should you feel more inclined to be a bit more forthcoming, contact me."

Jiga sent one final e-mail, on June 4: "I am a little person," she wrote. "I am a musician. I'm not a lawyer, or a professional industry person. I know very well how to operate synths; I know how to rock the house in raves. I can take a cello connected to flanger-distortion and play weird melodies on a fat beat.

"This is what I cannot do: Deal with something mysterious I am accused of doing, earning money and not getting it . . . confronting an unknown entity called 'Artist Activity.' Sure you have a lot of money, and power over me. But I have something you don't have: I believe in the power of music."

ANALOG PUSSY'S INTERNET SUCCESS DIDN'T start with MP3.com, and it isn't likely to end there; they still have 6,000 visitors a day to their independent Web site, and other models for attracting audiences and distributing music on the Internet are evolving, ways of working that will remain outside of any conglomerate's control. Don Joyce of the art-collage group Negativland, for instance, contends that the best public-relations move he can think of is to release all of his collective's music for free. "Free stuff attracts a lot of attention," he says. "I don't know how we'll make a living out of it. But I've never known how we make a living. We just do."

Several Web music services, such as Fair Tunes and Pay the Band, already give listeners a chance to donate directly to the bands of their choice. Eben Moglen, a Columbia University law professor and general counsel for the open source software movement, has an even more immediate compensation system in mind: He sees a future in which audio players allow listeners to tip their favorite musicians by clicking on a "credit" button. "It pops up and lists all the people who contributed to a work, and that list of contributors is clickable. Maybe they want PayPal to come up, or just get a list of who's listening and who clicks." But if such a player is ever to be invented, it's going to take an alliance among individual artists and open-source-software programmers -- something that's on the horizon but hasn't yet jelled. "Don't expect Winamp, which is owned by Nullsoft, which is owned by AOL, to be in any hurry to write the code for something like this. I mean, why should the people who want to control content make technology for cooperation between artists and audiences? Only the free-software world is the place where we can create player software that will make a direct connection between the artist and the fan."

And once the artist is connected with the audience, says Moglen, anything is possible. Should anyone scoff at the concept of a tip jar, Moglen reminds me that this is how art museums and public radio work; it's also how IUMA got its start. In the online music business, the donation model just might take some time to get off the ground. "We don't understand how all of this will be used, any more than the first two guys looking at the Model-T Ford knew about drive-in movie theaters. We can see only the underpinnings of a world in which people who listen to music can live in a closer relationship to the music they think is beautiful, and to the people who make it."

What about the Big Five? "They might decide to become advertisers, presenting a package of services artists need," he posits. "Or they might decide to devote themselves to the business they've been involved in all along, which is loan-sharking -- handing out promotional advances and then terrorizing their customers. But they can't insist on controlling by law the means by which music is distributed."

 

AS THIS ARTICLE GOES TO PRESS, JIGA + JINNO are in the studio, "writing the darkest, most depressing music you can think of." They decided to go on the record with their story, and remain in contact with other artists who were inexplicably suspended in May. So far, only one has come forward: "Angry Genius Boy," a political spoken-word artist who posts a similar story on his MP3.com site. AGB assumed he'd been singled out for his irreverence; he claims MP3.com had gone after him in the past for using a picture of John Ashcroft in vain. "But I think now they picked on the ones who had no recourse," he says. Jiga has not given up trying to prove to MP3.com that Analog Pussy's popularity is real, and to find out why MP3.com doubts that it is.

"Say that I have done something wrong, like I sent a bomb to their headquarters and wrote my name on it. Before they take my hard-earned money, shouldn't they tell me what I'm being accused of?" MP3.com's director of publicity, Greg Wilfahrt, refused to comment directly on Analog Pussy's plight -- "communication with the artist is confidential," he claimed -- but said that MP3.com might keep its reasons for suspension a secret so as not to give other artists any ideas.

"Let me word this carefully here," he said over the phone from San Diego. "In the communication that takes place between the artist and the company about irregularities, those irregularities are addressed with the band. The reason they wouldn't be able to discuss the issues of irregularities with the artist is that people could then figure out how to 'gain' the system."

"I understand," says Jiga, "that they are a company with certain financial needs that come before human relations. But if you have to be like that, don't promote yourself as a place for independent artists."

Sites that offer services similar to MP3.com, such as Ampcast.com, are still waiting to be exploited, and Jeff Patterson, who has remained IUMA's director of technology through every acquisition, promises IUMA will keep a face on its correspondence, despite its new parent company Vitaminic's express desire to emulate a label: "There's a focus at Vitaminic on signed content," he admits, "but since there are no serious label affiliations, there's no conflict of interest."

As for Patterson the rock musician, he's still waiting for the Ugly Mugs to break: If you include the years its members have taken off to finish school or launch new businesses, the band has been together for 13 years. Last month, it was the best unsigned band on RollingStone.com -- "for 24 hours," says Patterson. And one day, perhaps, an Ugly Mugs single will chart -- if only on the Internet.


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