Local Rhythms – Killing Internet Radio

head-in-sand.jpgLast fall, I wrote about web sites like Last.fm, Pandora and Mercora, that were shaking up the music world by offering thousands of niche channels and creating social networks for fans. Suddenly, it’s possible to discover artists who are laboring outside of the mainstream.

That could end soon. In early March, the Copyright Review Board, a government entity that’s almost completely controlled by the recording industry, made a decision that is, says Congressman Ed Markey, “a body blow to many nascent Internet broadcasters.”

The CRB ruling, retroactive to last year, triples the amount of money most web stations will be required to pay to record companies to use their products. This fee will not, it should be noted, go to the artists who made the music – that’s a separate payment. Worse, it exclusively targets Internet radio stations.

Regular radio outlets aren’t even required to pay the royalty, created 12 years ago. In 1995, a compliant Congress passed the Digital Millennium Copyright Act, a law that’s spawned nothing but greed and stupidity in its wake.

Since then, the best way into the business is Berkeley Law School, not the Berklee School of Music. Litigators have replaced lead guitarists, and record executives have started to think they’re rock stars.

All the while, the industry has tried to crush any and all technologies that might improve the fate of music in a world of declining CD sales.

It’s not hyperbole to say that if the ruling stands, most legitimate web stations will go out of business. The money CRB is demanding represents two to three times their annual gross revenue. Pirates don’t pay royalties, so they won’t miss a step. But an excellent chance to create a legal oasis for digital music will be delayed, if not destroyed.

When will these guys learn to get out their own way? In rural New England there’s a handful of music stations on terrestrial radio, but many are also online. Two of my favorites, the Point and WEQX-FM, are fuzzy in the car but come in loud and clear on the Net. That would end with the CRB decision.

These are the babies about to be thrown out with this ruling’s bathwater. Several web sites are following this developing story – the best is the Radio and Internet Newsletter.

Write your representative if you believe, like I do, that it’s time to stop this insanity. In the meantime, here are my live music picks for the coming weekend:

Thursday: Spring Savories, Claremont Opera House – A little music and lot of good food, as the State Liquor Commission and several area restaurants get together to show off their wares. Bistro Nouveau, Hullabaloo, Sophie & Zeke’s, Teal Lantern, North Country Smokehouse and the Java Cup, plus six wine vendors will participate in the event. John Lovejoy’s always a pleasure to listen to, especially when he’s tickling the ivories of the Opera House’s vintage piano.

Friday: Kid Pinky & His Restless Knights, La Dolce Vita – New London’s newest dining spot welcomes this fun-loving blues band. Bow-based Kid Pinky plays a smooth harmonica and is an ace piano player. This early evening (6:30 start) set should be long on sultry songs like Jimmy Reed’s “Hush Hush” the smoking original “Watchin’ You” – both of which can also be heard on “Blues That’ll Knock You Out,” the band’s latest CD.

Saturday: All Ages Metal Show, Hot Spot – This is a new nightclub located at the Everyday Inn in Rockingham, located just a little south of Exit 6 on Route 5. Saturday’s afternoon show features Jennings, Otumshank, Chapter 50, …And Then There Were Three and the Jonah Veil. The power trio Stonewall plays their own separately ticketed show at 9. It’s a welcome addition to the southern Vermont scene.

Sunday: Shawnn Monteiro, Center at Eastman – Jazz on a Sunday Afternoon continues with this fine vocalist, backed the JOSA Ensemble and bandleader Bill Wightman. Monteiro draws comparisons to Carmen McRae and Sarah Vaughn. Her set includes “Great American Songbook” standards from Cole Porter, George Gershwin and Duke Ellington.

Monday: Live Free Or Die, Claremont Cinema – Not a musical event, but after a seemingly endless wait, the indie film about bumbling criminals shot two years ago in Claremont has finally found a distributor. It gets its local premiere Monday, and opens to general release at several theatres on Friday. There’s an after-party, appropriately enough, at Hullabaloo.

Tuesday: Carbon Leaf, Iron Horse – After gaining exposure opening for Dave Matthews, John Mayer and Counting Crows, this rootsy band went into the studio last year and made “Love, Loss, Hope, Repeat.” It’s a record with the rootsy feel of 2003’s “Indian Summer,” but with more sheen, polish and punch. It has lots of layered harmonies, percussive spice and muscular grooves.

RIAA’s Internet Radio Double Standard

head-in-sand.jpgRadio Paradise, one of the many non-profit net radio stations due to die as a result of the Copyright Review Board’s recent misguided ruling on performance royalty payments, has started a blog to draw attention to the problems they and other netcasters face. RP proprietor Bill Goldsmith kicks Save Our Internet Radio off with a hard-hitting essay that highlights a fact which may be unfamiliar to many, that net radio stations are being forced to pay a fee that terrestrial broadcasters don’t:

Yes, both FM stations and Internet stations pay royalties to songwriters and/or music publishers. But the royalties in question are owed to the owners of performance copyrights, which means, in most cases, record companies – and to them, FM stations pay nothing at all.

How is it possible for such a massive disparity to exist? For the answer to that we need to go back to the 1990s, when music industry lobbyists persuaded Congress to include wording in two pieces of legislation (the Digital Performance Right in Sound Recordings Act of 1995 and the Digital Millenium Copyright Act of 1998) that drew a sharp division between analog and digital broadcasts. Their reasoning was that a digital radio transmission was not a radio broadcast at all, but a sequence of perfect digital copies of music performances provided to the user, who could then copy them rather than paying to own a CD.

Congress, bulldozed by the same crew that extended copyrights to 75 years, dutifully did the industry’s bidding, IN SPITE OF THE FACT THAT THE LAW HELPED NO ONE, NOT EVEN THE PEOPLE LOBBYING FOR IT.

Goldsmith spells out the history (familiar, it seems, to everyone but the RIAA Luddites):

Crippling an exciting, groundbreaking industry like Internet radio is certainly not in the best interests of the public, nor that of musical artists, and not even – if history is any judge – of the music industry itself. Just as they were unable to see how the advent of home music taping actually spurred the sale of LPs and CDs, they are unable to tell exactly what impact Internet radio and other forms of digital media will have on the future of their industry – and to behave as if they do know, and for Congress to go along with them, is a grave error, and public disservice, that needs to be recognized and corrected.

So, if we are building a business – even a non-commercial business like Radio Paradise – by the use of copyrighted material, isn’t it fair that we pay for its use? Perhaps it is. But the fact remains that what we are doing does not differ in any substantive way from what a company like Clear Channel is doing, and to move forward under the fiction that such a distinction exists is neither fair nor rational.

Of course, Clear Channel lives in the pocket of politicians, nonprofits like Radio Paradise don’t.

Internet Radio, R.I.P.

shotinfoot1.jpgThe music industry held the gun while the Copyright Royalty Board pulled the trigger today, as a decision to effectively triple the rate paid by Internet radio stations for retransmission of recorded works sounded the death knell for a budding business model. Via RAIN:

The Copyright Royalty Board (CRB) has announced its decision on Internet radio royalty rates, rejecting all of the arguments made by Webcasters and instead adopting the “per play” rate proposal put forth by SoundExchange.

RAIN has learned the rates that the Board has decided on, effective retroactively through the beginning of 2006. They are as follows:

2006 – $.0008 per play
2007 – $.0011 per play
2008 – $.0014 per play
2009 – $.0018 per play
2010 – $.0019 per play

RAIN ANALYSIS: In 2006, a well-run Internet radio station might have been able to sell two radio spots an hour at a $3 net CPM (cost-per-thousand), which would add up to .6 cents per listener-hour. Even adding in ancillary revenues from occasional video gateway ads, banner ads on the website, and so forth, total revenues per listener-hour would only be in the 1.0 to 1.2 cents per listener-hour range.

That math suggests that the royalty rate decision — for the performance alone, not even including composers’ royalties! — is in the in the ballpark of 100% or more of total revenues. (KH)

The industry’s rationale, which was adopted completely by the CRB, was as follows (via broadcastlawblog):

Essentially, SoundExchange argued that Internet Radio confers little promotional benefit to most performers, and that there was a large risk of “stream ripping” which would result in lessened sales of CDs and legal downloads. Moreover, the Recording Industry argued that the economics of webcasting are improving and that this higher royalty should be able to be paid by an “efficient” webcaster. In their proposal, no distinction is made between large or small webcasters, or between commercial and noncommercial entities.

It’s times like these that reveal the industry to be a passel of Luddites who can’t accept a future they don’t write word for word. If the record biz really believes that the risk of recording outweighs the promotional value of of Internet broadcasts (which can find listeners rather than the other way around), they deserve to die. Good riddance.

8150 Lawsuit Foments Intense Copyright Discussion

copyright.gifMy recent Local Rhythms post on the legal action taken against Vail’s 8150 club has generated a surprising amount of feedback. Most responses side with the artists, and many of them are factually false. It’s a very interesting discussion, and after stripping the lies away (the bands aren’t getting sued, the club is; Zeppelin members are signed as plaintiffs, so their names aren’t being used by the Vail Daily simply to get attention for a sympathetic scofflaw), many good points are made.

I should point out some facts left out of my article. There are two types of cover bands. One inserts a favorite song into a set of originals, or more to the point, learns how to shape originals by playing a variety of music from artists they enjoy. Sometimes this is an icebreaker for groups who have their own material but are too self-conscious to play it for a strange audience.

Monetizing the music they play would, in my opinion, destroy a lot of bands who typically get paid little or nothing to perform in the first place. There’s a great discussion going on at coverville.com that addresses this situation quite cogently. I’ll repeat one of the better posts here:

I’m in a band. A cover band. And in my home town of Ottawa, Canada, 90% of bands are cover bands. I can only imagine what it’s like for the rest of the world.

If the nightclub recorded the bands and made money with the recordings, that’s a different story. It’s copyright infringement since it lessens the commercial value of the original songs — by stealing money away from the creator.

But if it’s not, this falls under “fair use” of the copyright law. And I would even add that, the money the club owner makes is not from covers being played (which probably is the argument, here), since they are providing services, atmosphere, location, etc.

They are paying the bands to perform. Bands should be the ones held liable, not the club owners. And even then, I believe they shouldn’t. Do bookstores pay licenses for people coming into their stores only to sit down at the coffee shop and read books for free? I mean, they provide the location, amenities, and even a good crowd. Or what about a book review in a magazine read in said bookstores? What about music playing over the sound system playing at the music while they’re reading?

I’m not a intellectual property lawyer by any stretch, but as a writer myself, I know enough of the law to know this to be true in most cases.

This is going to turn out like the whole Metallica/Napster fiasco. And as we know, this didn’t stop anything.

Admittedly, this situation is different. Or is it? Labels attempt to intimidate their fans. In this case, clubs, bars and restaurants who hire cover bands will suffer the brunt of a decline in clientele when they are forced to hire original acts — unknown, or expensive (if popular), original acts.

The nightclub owner is not the ones who suffers. Again, it’s the fans. And it’s a tragedy.

Nevertheless, this is setting a dangerous precedent and bands will be facing a monumental task if they were to clamp down on every club with cover bands. And it’s not great marketing, either. You hear a song from a cover band at a club, you’ll be tempted to buy the original — or the album where licenses ARE paid to the original creators/labels.

Again, an egg-and-chicken dilemma.

On the other hand, there are bands like Lez Zeppelin, Hell’s Belles and Rain that ape famous bands like Led Zep, AC/DC and the Beatles – and make a lot of money in the process. Those are the groups ASCAP should be going after.

Because I write about a local music scene with many aspiring bands who have day jobs, and club owners who are sympathetic to them, I tend to side with the underdog. ASCAP isn’t a saintly organization, fearlessly representing defenseless artists. How many performers even own the publishing rights to their songs? The stories of ASCAP’s predatory practices are legion on my beat.

Radio’s ability to break new music has faded; fewer stations even play music anymore. Those fields are fallow, so ASCAP has ramped up nightclub enforcement. When I worked in radio, we lived in dread of receiving the ASCAP diary. Station management went so far as to try and ban their songs whenever possible during the recording period. But they always got their money, because the law was on their side.

Now it’s bars and restaurants on the receiving end of this treatment. If it causes nascent musicians to put down their axes before they even begin, that’s a bad thing.

Local Rhythms – More Reasons to Hate the Music Biz


pageopensnyse.jpgVail, Colorado – I know, that’s a strange dateline for a local music column. However, recent news from the Rocky Mountain State is hitting close to home.

In yet another example of a music business utterly bereft of new ideas, the members of Led Zeppelin and Van Halen are suing the owner of Vail’s 8150 nightclub for hiring bands that play cover versions of their material. They’re looking for more than $30,000 per song in damages.

Publishing organizations like ASCAP and BMI earn their money enforcing copyrights. That’s not necessarily a bad thing, but this is ridiculous. Worse than that, it’s counterproductive – at least where the musicians are concerned.

There’s a story of Paul McCartney seeing Jimi Hendrix play a teeth-rattling version of “Sgt. Pepper’s Lonely Hearts Club Band” in a London club, two days after that album was released.

I doubt Sir Paul was thinking about a performance fee that night.

Yet here are Jimmy Page and Robert Plant doing just that. These are the same guys who tried to rip off Howlin’ Wolf on their second album, by renaming his “Killing Floor” as “The Lemon Song” and trying to pass it off as an original. They were sued, and lost.

Van Halen is just a bad Xerox of Led Zeppelin, a band who spent the years before their big break playing – you guessed it – cover songs in L.A. nightclubs. I’m sure they were diligent about paying Roy Orbison every time they played “Oh Pretty Woman.”

Can’t they make nice long enough to complete a cash-grabbing tour like the Police? It makes absolutely no sense to risk losing their biggest fans (you know, the ones so dedicated they learn all of your songs, note for note).

But the reasons for this are sadly obvious. Neither band has made an even semi-interesting piece of new music in over 25 years. Like everyone else in the industry, they’re reduced to repackaging old work to milk past glory. It’s no longer music; it’s an annuity plan.

They should follow Eric Clapton’s cue; grateful for the success that “Cocaine” and “After Midnight” brought him, he made a record with J.J. Cale last year – a class act.

[A follow-up AlgoRhythms post to the 8150 lawsuit]

Who’s making music this weekend?

Thursday: The Wailin’ Jennys, St. Anselm College – A more rustic Dixie Chicks, this band has won several awards in their native Canada. Sweet three-part harmonies lift their bright, natural sound, which begs a question. Why does so much great Americana music come from north of the border? The Lovell Sisters, winners of a recent “Prairie Home Companion” talent search, open the show.

Friday: Have Blues Will Travel, Salt Hill 2 – Last week I talked about plans for Irish music on St. Patrick’s Day eve. Now comes word of music every Friday and Saturday in Newport’s newest restaurant. Tonight, it’s a well-regarded duo playing traditional, harp-sweetened blues. Tomorrow brings R&B, with Mike Benoit and Jimmy Ruffing. In the coming weeks the Eagle Block eatery welcomes stripped down pop (Rich Thomas & Wally Wysk 3/10) , bluegrass (Spare Change 3/24) and, obviously, Irish sounds. Great news!

Saturday: Chris Whitley Memorial Celebration, Boccelli’s – The hard-living Whitley left us in 2005, but his music continues to inspire. Jeff Lang, who recorded with Chris on “Dislocation Blues,” due for release this month on Rounder, headlines the show. Dan Whitley played an incendiary set at last year’s Roots on the River festival; once again he’s back for this, the second annual tribute to his late brother. Josh Maiocco hosts, Melissa Sheehan also performs.

Sunday: Fogey Mountain Boys, Canoe Club – Authentic bluegrass from a group of locals who love to play it. Since we’re on the subject of royalty fees, I wonder if Woody Guthrie lurked around campfires waiting for someone to play “This Land Is Your Land”? It’s doubtful, and these days all his stuff’s in the public domain. Since it’s Sunday, the Boys play for 3 hours. Sit close if you want to really enjoy the music.

Monday: Gaelic Storm, Iron Horse – This wonderful Irish quintet starts March in style with a long run through the region. They were in New London Tuesday, and play the Capitol in Concord tonight and Randolph’s Chandler Music Hall tomorrow. They have a neo-traditional sound that fits everywhere from the Dublin (Ohio) Irish Festival to the House of Blues (where they recorded a recent live DVD).

Tuesday: Open Mike with Josh Maiocco, PK’s Public House – Josh took the reins from Ezra Veitch last year for this Bellows Falls tradition, and he’s holding things down nicely. Anyone who wants to play can step up to the microphone and join in, but you should be aware that your friends and neighbors may be listening at home on WOOL-FM, which broadcasts everything live.



RIAA Sues XM, Judge Allows Trial

xm_radio.jpgThe music business doesn’t know how to break new acts, but they’re pretty good at breaking up new media business paradigms. Via SiliconValley.com comes word that a New York judge agrees with Atlantic, Capitol, BMG and a few other companies that XM Radio’s technology allowing users to tag and save songs cheats them out of money:

In refusing to toss out the lawsuit, the judge noted that the record companies consent to XM’s use of their copyrighted material solely for the purposes of providing a digital satellite broadcasting service.

The judge agreed with the plaintiffs. I think that’s how I’ll characterize them from now on; not the music industry, the plaintiff industry. Because all they do is sue people.

XM, for their part, says they’re adhering to the Audio Home Recording Act of 1992, which allows consumers to record off the radio. The XM device is akin to a cassette/radio combo player, they said. The judge didn’t agree:

“It is manifestly apparent that the use of a radio-cassette player to record songs played over free radio does not threaten the market for copyrighted works as does the use of a recorder which stores songs from private radio broadcasts on a subscription fee basis,” [Judge Batts] said.

Funny, the record labels didn’t feel that way about cassettes in the Seventies, when they successfully pushed for a tax on home recording. But these guys have never had any hindsight, 20/20 or otherwise.

More RIAA Stupidity

ggrillz.jpgAs control of the major labels passed from music professionals to money managers who view a melody as no different from a pork belly or a silver ingot, the discipline of record promotion basically died. So it’s unsurprising that the Recording Industry Association of America (RIAA) reacts to innovative forms of artist promotion instigated outside their plastic bubble in the only way they know how – with lawsuits.

Police arrested DJ Drama, purveyor of Gangsta Grillz, one of the most influential mixtape studios in the country. Via the New York Times:

On Tuesday night he was arrested with Don Cannon, a protégé. The police, working with the Recording Industry Association of America, raided his office, at 147 Walker Street in Atlanta. The association makes no distinction between counterfeit CDs and unlicensed compilations like those that DJ Drama is known for. So the police confiscated 81,000 discs, four vehicles, recording gear, and “other assets that are proceeds of a pattern of illegal activity,” said Chief Jeffrey C. Baker, from the Morrow, Ga., police department, which participated in the raid.

Even though he operates with the enthusiastic blessing of every performer of all the material used for his discs, despite the fact that, as Times reporter Kelefah Sanneh writes, “Rappers often seem proud to be considered good enough for a “Gangsta Grillz” mixtape,” and perhaps most importantly, with a complete disregard for the free promotion DJ Drama’s artful creations give their music.

It also seems clear that mixtapes can actually bolster an artist’s sales. The most recent Lil Wayne solo album, “Tha Carter II” (Cash Money/Universal), sold more than a million copies, though none of its singles climbed any higher than No. 32 on Billboard’s Hot 100 chart. That’s an impressive feat, and it’s hard to imagine how he would have done it without help from a friendly pirate.

Music that doesn’t get played on the radio, doesn’t chart through conventional channels, yet sells platinum – PLATINUM. It only happens because of the underground.

It’s like technology companies who put hackers in jail, when they should be hiring them.