March 28, 2001

1:44 PM

Best RIAA-vs-mp3 quote so far? Here's my candidate. I think it'll take five aces to beat it but don't hesitate to try!

As Eben Moglen, professor of law and legal history at Columbia University, puts it, "Is the RIAA and its friends doing some kind of technology surveillance? Yes. Is it going to work? No. It's really dumb. It's another serious mistake by an industry going out of business in the stupidest way, bumping its head on the steps on the way down, because the record industry was always a bunch of thugs and that's what they still are."
posted by jfuller (24 comments total)

Describing legitimate businesses enganging in voluntary exchanges of services as a bunch of thugs just doesn't make any sense to me. Sorry.

(Disclaimer: I run a small vinyl-based house/drum'n'bass label together with a couple of friends for fun)
posted by frednorman at 1:55 PM on March 28, 2001

Fred, have you ever read Hit Men by Fredric Dannen?

The sleaziest sleazebags in the Entertainment industry are in the record business.
posted by jpoulos at 2:00 PM on March 28, 2001

Note: I'm sure you're a swell guy, though, Fred. :-)
posted by jpoulos at 2:00 PM on March 28, 2001

I'm sure people have linked to this article before, but I'll give it another shot: Steve Albini, please explain to frednorman why the record industry is a bunch of thugs.
posted by argybarg at 2:47 PM on March 28, 2001

there's also courtney love's excellent digital hollywood speech, on the recording industry and how it screws musicians; incidentally, this was the most read article on salon last year. it's a fantastic read, she's a very smart lady.
posted by lia at 8:34 PM on March 28, 2001

Jpoulos: Hehe. Well, I haven't read the book, but still, I'd say there's a long way from being "sleazy" to being a "thug". Isn't there?

lia: My point is as follows: my (mini-sized) record label doesn't force anyone to do anything. In fact, quite the contrary, people come to us by their own free will, to get help in releasing, promoting and producing their material. We then negotiate the terms for our dealings, and if either part is not happy, no deal is signed. If, on the other hand, we're both happy, and we agree on a contract: we sign. Now where does the "thug" or "screw" part come in, exactly?
posted by frednorman at 12:19 AM on March 29, 2001

fred, I'm sure that your business practices are all on the up-and-up... it's the big labels that are the subject of everyone's criticism these days - they're the ones who have all the money and the power in the industry, and they're the ones who are screwing artists on a regular basis. Read about Courtney Love's experiences. Read about Prince's experiences. Read about TLC's experiences.
posted by Haveed at 8:14 AM on March 29, 2001

Prof. Moglen tells it lak it is!!!

(I don't think he's talking about small labels, but about the big 7... or it is 5 or 4 now? You know... the ones that treat talented artists like cigarettes.)
posted by Twang at 8:47 AM on March 29, 2001

My point is this: if the artists are not happy with a deal, they don't have to sign it. There's no force involved here. Thus the word "thug" is terribly misplaced. If you accept certain business terms, you accept certain business terms. Case closed.

Speaking for myself, I might not accept Courtney Love as a client, but Prince would be welcome here anytime if he's unhappy elsewhere ;-)
posted by frednorman at 9:34 AM on March 29, 2001

Fred, still, the contracts the record company often uses to sign bands are deceitful and unethical. It may be legal, but that doesn't mean people shouldn't dislike them.
posted by daveadams at 10:27 AM on March 29, 2001

My point is this: if the artists are not happy with a deal, they don't have to sign it.

Right... and then... go back to waiting tables?
posted by Mars Saxman at 12:35 PM on March 29, 2001

Mars: that, or doing the record label's work yourself. Heck, you could even hire some other people -- whom you trust -- to do it, as well. After all, it's not like it's a human right to be a successful artist, with a caring management working for free, or something. Managers and marketing specialists are people too, you know, with their own real rights as individuals.

In other words: If I, as a record label representative, were to do certain things for you, as an artist, I would expect something back, as payment. And if you -- for some reason -- are unwilling to give me that something back for my work, then I'm unwilling to do it in the first place. Simple as that.

Volountary exchange of services. Trade.
posted by frednorman at 12:57 PM on March 29, 2001

The problem with record-label contracts is a problem I have with all contracts of this type: they're exclusive. When a new band signs up with a label, they have to sign off that they won't sign with any other label for a long time, even if the label they did sign with never gets around to helping them produce an album!

A band should be able to sell their services to anyone who wishes to buy them. A contract should not be able to prevent selling to another party or buying from another party. But all too often they do. Exclusive contracts suck, but they're legal, even though they prevent "Voluntary exchange of services" and "Trade." Why should I like that?

Other areas where exclusive contracts suck:

College campuses are always signing exclusive deals with vending operators, restaurants, et cetera. I can't go out in the hall and buy a Coke if I want, I can only buy Pepsi. If I'm having a meeting and want to order pizza, I have to get Domino's; I can't order Pizza Hut or Papa John's. I'm surprised they haven't tried to prevent me from bringing soft drinks made my Coca-Cola and putting them in the school's fridge.

TV rights to sports games. I work for Southwest Missouri State University. Our women's basketball team will be playing in the NCAA Final Four this weekend. Most big Lady Bears games are broadcast on the local NBC affiliate. But they can't show these games because ESPN has an exclusive contract with the NCAA and won't agree to let KYTV broadcast it. Too bad I don't have cable.

A bit more important: Microsoft's past contracts with computer vendors that required they pay the DOS/Windows license fee for each PC they produced whether they sold it with DOS/Windows installed or not.

Some of my examples are just annoying, but exclusive contracts have sinister effects on markets: they artificially reduce competition. They're perfectly legal now, but I wish they weren't.
posted by daveadams at 2:13 PM on March 29, 2001

When a new band signs up with a label, they have to sign off that they won't sign with any other label for a long time

Uhm, if that's a part of the contract; yeah. But they don't have to sign the contract in the first place. Which was my main point all along. You see, if one is unhappy with the terms of a contract, one has four perfectly viable options: 1) accept them anyway 2) look around for alternatives 3) do all the work oneself 4) or go back to waiting tables

Nobody has a right to a perfect record deal, you know. But you sure have a right to negotiate. Just like the record companies do, as well. See? Don't agree = don't sign. Easy as a pie.

A band should be able to sell their services to anyone who wishes to buy them

Uhm, they are. And they're allowed to negotiate the terms for this to take place, too. Now, if they choose to accept those negotiated terms, they will have to follow them as well, no matter how unfair they think they are. And if they don't, they won't get the services they want from the record company either. This, to you, is unfair?

exclusive contracts have sinister effects on markets: they artificially reduce competition

I'd say quite the opposite. In fact, some of our clients -- at that teeny-weenie vinyl label which I co-run -- are probably with us *only* because they couldn't get nothing but exclusive contract offers from the Big Ones. In other words, those bad terms offered by the Big Nasty Record Company, provide a great business opportunity for small guys like me. And what's bad about that? Huh? Huh? ;-)
posted by frednorman at 2:31 PM on March 29, 2001

frednorman, I understand that you are actually part of the business in question and I'm not, but your comments sound frightfully idealistic. Using similar arguments one could claim that Microsoft has competition. Perhaps in theory this is true, but in practice we can all see that they own the world.

Sure, maybe musicians could refuse to accept contracts that barely paid their living, refuse exclusive deals, and so on. The fact that they don't tells me that, whatever the theory says, in truth the record companies are getting whatever they want and the musicians just have to live with it if they want to be musicians at all.

-Mars
posted by Mars Saxman at 3:37 PM on March 29, 2001

The fact that they don't tells me that, however much these artists disapprove of major parts of the contracts they're offered, they still accept them -- because they're more interested in receiving the services the big labels can offer in the first place, than they're unhappy with the deal. They lose some, sure, but they also win some.

This doesn't mean that the big record companies are thugs. What it means, is rather that that many of the artists believe that the big record companies are doing one hell of a job. They think tht they're so good, in fact, that they'd agree to signing mostly any contract offered at all, just to get their feet inside, with all the opportunities that implies. But go ahead, I say. That's their right. And that's their choice. I'd much rather sign many of these people to my label, under much better terms, but they don't come here. And there's a reason for that.

Just I have a choice, as a consumer, with regards to which OS I choose to use. Sure, I could switch to Linux, OS/2, Mac, FreeBSD, Unix, Irix or BeOS any day. But I don't. The reason I don't, isn't that I can't. It's that I want the benefits of Microsoft Windows, even though there are parts about it which I don't really like.

Just like with the artists, and the record companies: the choice between the big record companies with the bad terms vs. the smaller, and perhaps less capable ones, like mine, with better terms.

Take your pick.
posted by frednorman at 9:08 PM on March 29, 2001

Musicians sign contracts with major labels because they want to be STARS and they have the impression that the major labels are the only way to become STARS. Which is still more or less true, although it will become less so as time goes on.

Musicians who just want to make a decent living doing what they love to do will continue to reject major label contracts, as they always have. They just have more options now.
posted by kindall at 10:00 PM on March 29, 2001

"But I don't. The reason I don't, isn't that I can't. It's that I want the benefits of Microsoft Windows"

Sure you can. Lots of people already do, and I'm working on doing it myself. But that's the problem, you see...it's not just a drop-in solution. You have to work at it, and work really hard at it sometimes.

It's the exact same thing with record labels and their contracts. Sure, you could go with an indie label, and get 1/100th the exposure, 1/1000th the fame, and...well you get crap for a "fortune" either way. Or you can go with a major label, who's tons more restrictive, but at least you've got a shot.

It depends, mostly, on whether you're doing it for the fun or the money, I imagine.
posted by CrayDrygu at 10:01 PM on March 29, 2001

some of our clients ... are probably with us *only* because they couldn't get nothing but exclusive contract offers from the Big Ones. In other words, those bad terms offered by the Big Nasty Record Company, provide a great business opportunity for small guys like me. And what's bad about that?

Are you saying that the big record companies would offer contracts at all to these bands if they couldn't get exclusivity? I doubt it -- more customers for you! And anyway, I'd bet that if it weren't for exclusive contracts, your label could pick up a lot more small-time artists because they couldn't get locked in to signing away their rights and even if they were signed with a big label, they could record on yours if they weren't being treated well. When bands are signed into exclusive contracts with labels who won't let them record, your label is losing out on the chance to compete, the band is losing, consumers are losing. Everyone loses.

Yes, it's their choice to sign the contract, but even if we skip over the issues of naive teenagers hoping to make it big believing anything the A&R scout promises without ever consulting a lawyer... you know, there are certain things we don't allow contracts to cover. I mean, should we let people sign themselves into slavery? Why not if they had a chance to read the contract and decide not to? Because it's wrong. Slavery is not a condition that we allow contracts to enforce. Similarly, we shouldn't allow contracts to enforce this type of exclusivity.
posted by daveadams at 10:05 PM on March 29, 2001

I mean, should we let people sign themselves into slavery?

Sorry, but that's just a logical fallacy. If someone signs up for something, then it's by definition not slavery anymore. It's an agreement they've chosen to enter, on the basis on their own free will -- not something which has been imposed on them by the use of raw force.

We do already allow people to limit their options of choice, if they want to. Say, if you choose to work as a consultant for X-Company, you can't work for Y-Company, at the same time, if that's limited in your contract. If I choose to sell the exclusive right to my services to Company 1, I can't sell the very same to Company 2, if that's what we've agreed on. That's a limitation I have a right to impose on myself. Already. And that's the way it always should be. Because I also have the right to break the contract at any time. With the consequences of that in mind, of course. Which makes your analogy to slavery look pretty misplaced.

When bands are signed into exclusive contracts with labels who won't let them record, your label is losing out on the chance to compete, the band is losing, consumers are losing.

That's something the band should've been thinking about before they signed anything, if you ask me. Sometimes, when you agree on something, you'll regret it afterwards. That happens. But it's a deal you've signed, nevertheless. You've promised to accept certain terms. You've chosen to limit your own options. Now you can choose to cope with the terms you've accepted, or you can withdraw from the agreement in its entirety, and lose out on the benefits you wanted from it in the first place. Pretty simple, really. And not exactly comparable to slavery now, is it?
posted by frednorman at 2:30 AM on March 30, 2001

> In other words: If I, as a record label representative,
> were to do certain things for you, as an artist, I would
> expect something back, as payment. And if you -- for some
> reason -- are unwilling to give me that something back
> for my work, then I'm unwilling to do it in the first
> place. Simple as that.
>
> Volountary exchange of services. Trade.

Fred! Logic, logic. The fact that an exchange between A and B is voluntary has nothing whatever to do with the question of whether A or B is a sleazeball.

Consider crack dealing. Pure, Adam-Smith-style economic transaction, A is free not to sell, B is free not to buy. These facts do not somehow perfume the character of either participant. A is a sleazeball, B is a dumb fuck.

Now then, consider party A (Sony A&R guy, erotically waving "standard rich-and-famous contract" -- jfuller tips hat to Muppet Movie) in front of party B (nouveau bar band with collective intelligence of Nsync) while drool puddles up in B's collective lap.

The two cases are precisely parallel. The voluntary nature of the transaction is entirely extraneous to the point -- point being that party A in each instance is notorious bagbiter. Verstehen sie?
posted by jfuller at 6:58 AM on March 30, 2001

Perhaps what we're really discussing here, is semantics.

You see, as a non-native speaker of English, I read the word "thug" as "criminal, violent and/or fraudulent". While you seem to read it as "sleazy, greedy and/or tough-minded". In other words, we're talking past eachother. And that's no use.

Now, I'd be the first to admit that some record companies' representatives can be sleazy. Even greedy. And certainly tough-minded. But my point was, all along, that none of this constituted criminal -- and thus legally punishable -- behavior. Immoral? Perhaps. But not criminal. Which is what daveadams suggested we make it.
posted by frednorman at 7:45 AM on March 30, 2001

That's a limitation I have a right to impose on myself. Already. And that's the way it always should be. Because I also have the right to break the contract at any time.

No, you misunderstand. They don't have the option to break the contract at any time. They aren't employed at-will as you are when you work for Company X or Y. Besides, I see no reason why you shouldn't be able to sign up with companies X and Y. If you can handle it, then you should be able to do it. Exclusive contracts disallow that.

not exactly comparable to slavery now, is it?

Of course at-will agreements are nothing like slavery. My point is not that these bands are signing themselves into slavery, my point is that we have rules on what contracts can or cannot enforce. A contract which bound a signee to actual slavery would not be enforceable in court. There are other things we don't allow. Like the selling of children, or body parts. What I'm saying is that we should add exclusivity agreements to the list of things we disallow.

none of this constituted criminal -- and thus legally punishable -- behavior.... Immoral? Perhaps. But not criminal. Which is what daveadams suggested we make it.

Eh? The only difference between immoral and criminal is what we choose to make it. I'm not saying it's criminal now. I'm saying it should be.
posted by daveadams at 12:36 PM on March 30, 2001

And I -- still -- disagree. Let's call it an EOD :-)
posted by frednorman at 1:08 PM on March 30, 2001