As human beings we live for the spiritual connection music provides. Music has always been connected with religion and has been repeatedly shown to have healing power. (http://www.musictherapy.org/)

But what happens to music when it is produced without that mystical groove? What effect does it have on people when there is no emotional communication in their music, no ‘grin on the groove? ‘

When music is created inside a computer using what is called MIDI (music instrument digital interface) the beat is placed on a grid. Every note can be perfectly aligned and then reproduced with flawless precision. The drums, keyboards and bass can all be replicated using perfectly recorded samples instead of live players. Recorded short segments or ‘loops’ of music are often sampled from old records or purchased in royalty-free loop collections and used as the basic rhythm track for a new song. Computer hard drive recording has driven down recording costs until it is now possible to record a credible album in your bedroom studio — sometimes with no human being actually playing a musical instrument. The music is exactly reproduced but with no emotional communication.

I began using a computer to create music back in the mid-1980s. At that time the available memory on a computer was 64K, so you couldn’t do much. Each instrument had to be written into the computer and then recorded on tape. Then you had to write another track in the computer and use a sync tone to record that track onto the tape in time with the previous track. It took forever and the results were seldom worth the effort.

Today you can build a massive track in a couple of days. It is still labor intensive and the software is often mind-numbingly complex and buggy, but the results can be broadcast quality.

Like most contemporary songwriters I have used computer recording for practically my whole career. But I must admit, I never once heard a computer ‘put a grin on the groove. ‘ I have had entire weeks in my home recording studio working slavishly in front of the screen and at the end of the work the results lived or died by whether the melody and lyric could carry the song. The groove never lifted me up to that place where only a great band can go. I can’t ever remember breaking into spontaneous laughter or joy listening to the computer ‘print out’ the track. I never once felt healed.

In this age of connectivity we Twitter, ‘blog, e-mail and post every portion of our lives on social network sites. But at the deepest level of emotional communication, our music has lost its groove. We find ourselves with music that leaves us unfulfilled and blame ‘Big Corporate Record Labels’ because the music is slick but soulless.

Admittedly, quantity and quality have never coexisted peacefully in music. Big hit records are nearly always lowest-common-denominator music. But even the Big Labels used to make better records. If you listen carefully back over the decades somewhere in the early 1990s you start to hear the music flatten out. The tracks become more formulaic simply because the software used to record it works best within those formulas. Drum loop samples often lock a track into a single groove; one dynamic level; and even worse, one chord change. It is not by some Big Record label’s marketing plan that Hip-Hop has become so dominant on the charts. It is the perfect music for computer reproduction. Low cost/high return music is the path of least resistance when a record label is facing massive losses from music piracy. Back when the big labels were rolling in money they could afford to invest in lots of diversity in their catalogs. Now the business plan has been reduced to ‘crank up the computer and crank out another track’ exactly like the last hit.

This leads to consumers feeling cheated when they pay for a whole album and nothing seems to connect with them emotionally. Then they use that feeling to justify stealing the music. This just perpetuates the ‘loop’ we are stuck in. Computer music doesn’t connect, people steal the music, record labels cut costs, leading to more computer music.

To break out of this loop it will take music that can really groove — music that actually connects on that deep spiritual level. We need bands that play together for years and develop that ESP-level of communication that all the great groups had. Take a quick listen to Booker T and the MG’s or James Brown. Listen to Count Basie and discover the meaning of swing. Hear Alison Krauss and Union Station and the greats of Bluegrass like Bill Monroe. We need music that is made by hand and played with fire and devotion.

But whenever and wherever you encounter that band that ‘puts the grin on the grove,’ buy their music, Don’t steal it. The connection of music is a two-way communication. The musicians and songwriters need to feel the love too!

I have witnessed cognitive dissonance corrupt the thinking of everyone from skate boarding teenagers to Stanford law professors.

Once people adjust their thinking to justify their behavior, it is practically impossible to change that behavior.  It is just too painful to admit when you have knowingly been doing something inexcusable. It is much easier to continue making excuses.

So in the interest of preventing the onset of ”cognitive dissonance,” if you are an illegal down loader, here are the top ten rationalizations to avoid. If you find yourself using any one or more of these excuses, beware!  You are only fooling yourself.

1. Artists aren’t getting paid anyway.
2. Artists and songwriters are all rich, and don’t need the money.
3. Record labels need a new business model.
4. Stolen music promotes live shows.
5. Stolen songs don’t displace a sale; the perp wouldn’t buy it anyway.
6. I want it all my way, and I want it now (convenience).
7. Destroy the ‘gatekeepers’ and the little guy wins.
8.  Information wants to be free!
9. Illegal downloading is ‘sticking it to the man!’
10. The copyright term of protection is too long.

The insidious problem with all of these excuses is that they don’t justify theft; they just make people FEEL better about stealing. Can you imagine using any one of these excuses in front of a Federal judge?

If you said yes, your mind has probably already been hijacked by cognitive dissonance. Your only hope of escape from this crippling mental affliction is to change your behavior. Delete all those illegal music files, today, or subscribe to legal downloading services. Here are three that charge pennies for each song you buy:

iTunes

Rhapsody

Amazon

… not such a great price to align your actions with a positive self image.

So, go ahead, unite your behavior with your image of yourself as one of the ‘good guys.’  You’ll thank me when you do! <Wink>

“The biggest challenge, right now, is changing the behavior of a generation of Internet users to get them to pay for music.”

The statement is correct, but entirely ignores the fact that for the last ten years, LimeWire has been encouraging and enabling that very behavior.

Zaidi’s quote reminds me of the old joke about the man who shoots his parents, then begs the judge for mercy because he is an orphan. I would expect that the RIAA, just like that judge in the joke, is going to take a rather jaundiced view of any appeals for mercy from LimeWire.

LimeWire ignored the plight of songwriters and artists for a decade while massive music looting took place through use of their software. The evidence in the recent Federal Court ruling reveals that they knew about the illegal activity and did nothing to counteract it. Instead, LimeWire encouraged it.

LimeWire showed no mercy, but now begs for mercy from the people they harmed.

In a world of perfect justice LimeWire’s CEO, Mark Gorton, would have to personally pay back every cent that LimeWire stole from thousands of songwriters and artists. Added to that would be a life sentence of community service finding jobs for the songwriters and artists he helped put out of business.

But the truth is, nothing will replace all the years and careers that were lost; artistic dreams that were dashed; and music that was never created.

Revenge may be sweet, however, it is seldom a good business model.  I would hope that the RIAA will take a pragmatic view of all their options before making their final decision about whether they show ‘mercy’ to LimeWire.

If there is any way to leverage LimeWire’s hundreds of millions of users to resurrect artistic opportunities for American songwriters and rebuild the ravaged infrastructure of American music, then the option should be considered.  Preferably, of course, such a solution should not benefit LimeWire and Mark Gorton in any way that would establish the precedent of looters and their enablers profiting from their own wrongdoing.

As Zaidi said, it’s a very big challenge to change the behavior of a “generation of Internet users” who have never paid for music.  No one knows that better than him because LimeWire is responsible for enabling so much of that behavior.

Nothing is more terrifying.

Each new day we sit down and try to invent our future through words and music. Most days we fail, and fail badly. If we get one song in a hundred recorded we are on our way to the Hall of Fame.

So the question arises each time we stare at that empty page. Why do we do it? As we are so often reminded by family, friends, and society, we really ought to “Get a real job!” Sadly, this message gets ingrained in our minds and after a while we find ourselves lying in bed at night and asking ourselves if we shouldn’t give up and get a ‘day gig.’ Once we internalize our demons there is little use for others to remind us how shaky our chosen profession is. Yet they continue unabated. Isn’t it ironic that the ‘Real World’ is so tough on dreamers? Without them we would all still be turning over a rock to find our dinner.I am certain that even “one in a billion” talents like Edison, Einstein, Curie and Beethoven all had their detractors telling them to quit wasting their time day dreaming and do something useful. But where would our civilization and our culture be if these men and women had decided to give up on their dreams and aspirations and ‘get a real job’?

Recently I was reading comments attacking one of the SGA’s pro-copyright statements when I encountered the tried and true ‘Get a real job’theme. Here are just three examples:

Zenstic wrote:

“if so many of the SGA’s members are unemployed and not making much money at all,  shouldn’t they be worried more about becoming useful and productive members of  society. God forbid if you had to live like us peasants. (rolls eyes).”

szlevi wrote:

“If those poor, poor songwriters are suffering so badly, they need to get new jobs.”

chronomitch wrote:

“Would it really be a bad thing if we had fewer song writers?”

I suppose that some of this rancor toward the dreamers comes from the Puritan work ethic that is so ingrained in our culture. The, “idle hands are the devil’s workshop” crowd will always be with us. But something else is at play here as well. That something is fear. A blank page is a very scary thing. Most people don’t have the nerve to stake their entire future on selling something that they have to come up with entirely off the top of their heads. They tell themselves that it is more sensible to get a real job. But in fact, they are just afraid to live out their dreams and so they tell themselves, and everyone else, that it can’t be done, that it shouldn’t be done.  Not as a career.

Sometimes this antipathy towards creators takes a more sinister form.There are people who are not content to toss off the occasional disparaging remark to a songwriter or two. There are those who feelcompelled to actively pursue the destruction of the dream — for profit. Mark Gorton, the CEO of LimeWire, who has profited for ten years from the massive  looting of songs, is a prime example. LimeWire is a parasitic company. It bleeds the money out of other people’s creative works and eventually kills their jobs and their dreams. Mr. Gorton has never had to face a blank page. He lets others do the scary work, and then he steps in and steals the rewards. And until recently, Mr. Gorton had never had to face the creators on whose backs he planted his boots. But last week, a U.S. District court told Mr.Gorton that his ten years of destroying the hopes and dreams of songwriters has come to an end.  He will no longer be able to sit back and illegally profit from the work of others. In short, Judge Kimba Wood told him, and I’m paraphrasing here… “GET A REAL JOB.”

Freedom of speech is alive and well in the United States, but it does occasionally take a bizarre turn. Witness this example from the MAY 2010 issue of PC World Magazine (MAY 2010 issue) warning illegal downloaders:

“The next people who bust you for illegally swapping music and movies could be the folks you pay for internet access.”

They go on to instruct the criminals that:

“THE FIX = Support for organizations such as Chilling Effects, the EFF and Public Knowledge, which fight laws that turn Internet service providers into Hollywood’s hired guns.”

It is one thing for PC World to try to sell magazines by offering advice to looters as to how they might lobby for changes in the law decriminalizing their thefts. However misguided, espousing that point of view is the legal right of any publication, and of any American.

From an ethical standpoint, though, it is another thing altogether to run a public advocacy organization that, under the guise of representing “free speech” interests, is actually dedicated to protecting the interests of these same looters.

The Songwriters Guild of America, for the last 80 years, has spent the vast majority of its time and resources educating and advocating for protections in the United States to shield creators from being mercilessly exploited and ripped off by those both within and outside of the music industry. Recently and far too often, we have seen the EFF and Public Knowledge (among other, similar groups) on the other side of our issues.

At the SGA, we understand that there are important legal issues surrounding issues of copyright protection upon which reasonable people may disagree. But we would hope that the one thing we can all agree on is that the championing of laws that facilitate or even legalize the theft of another citizen’s property –be it intellectual property, personal property or land– is NOT the proper role of any legitimate public advocacy group.

When the EFF and Public Knowledge are referred to as ‘THE FIX’ by an article advocating ways to avoid detection of the crime of illegal downloading, we would also hope that those groups would step forward and take the opportunity to explain how and why their organizations do not promote or support –and in fact actively oppose– the engagement of their supporters in criminal activity. We are still waiting and hoping that they will do so.

Both the EFF and Public Knowledge have in the past been strong advocates on genuine issues of speech freedom. SGA has supported them in those causes and has joined with them, for example, to advocate for restrictions on Media ownership concentration in radio because we feel that diversity of opinion is a critical component of democracy.

But what part of being ‘THE FIX’ for a mob of music and movie looters is related to the preservation of freedom of speech? Thousands upon thousands of creators are waiting for that answer, even as their livelihoods vanish before their eyes.

A great song is an emotional ‘message in a bottle’ from the artist to the fan. Both the artist and the fan benefit from this communication. From listening to Joni Mitchell’s “Blue” album, I got as close as I will ever get to understanding the unfathomable depths of a woman’s emotions. Over the years, I’ve bought at least five copies of the album and attended her concert in Memphis. So we both benefitted from her album; though as a rabid fan I would say I got the best of the bargain.

Over the years I have written countless times about the cultural, sociological and financial value of a great song. But after reading Steve Walbridge’s article “You Are Hereby Sentenced to One Year of Reality,” (Jan/Feb 2010 issue of Elmore Magazine) I was reminded that real fans are why great songs exist and survive. Without someone who will take the time to open the bottle and read the message in our songs, we would all be lost at sea.

Walbridge talks about phoning in sick to work so he could travel to New York and scour the record bins for great music. That is what fans are about! I am not an advocate of ditching work, but I am saying that for real fans, great music will get you through those times of having no money better than having money will get you through times without great music.

These real fans are everywhere: they’re the person at the water cooler who gives you his or her detailed critique of the latest and greatest music that you’ve never even heard of; they’re the kid who spent every cent he made last summer on old vinyl record albums recorded before he was born; they’re the acid-jazz guy who clerks at the little record shop who is so far out on the edge that you personally doubt his sanity! As music creators we owe all these folks a tremendous debt of gratitude.

We know how easy it is to steal music nowadays. As President of the Songwriters Guild I have spent years attacking the people who have been decimating the songwriting profession by disrespecting the music with their theft. But in all those years I don’t remember ever stopping to say thanks to the true fans.

So I am hereby extending a huge collective “THANKS!” from all the songwriters at the Songwriters Guild to all of the fans out there who love and nurture the music. You know that the people who create the music are trying to share their feelings and hopes and dreams with you. You have ‘opened our message’ by supporting our art with your purchase of music. We want you to know how much that means to us.

SGA President Rick Carnes recently interviewed Chris Castle. Castle is one of the handful of attorneys who have held senior in-house positions at both music and technology companies: Chris was Senior Vice President of Business Affairs at Sony Music Entertainment, Inc., Vice President of Business & Legal Affairs at A&M Records, Inc., and was recruited by Shawn Fanning to join SNOCAP, Inc. as its Senior Vice President of Business & Legal Affairs and General Counsel.

Chris is frequently involved in the more complex and difficult issues at the nexus of music and technology.  He specializes in transformative licensing—taking illegitimate online companies and helping them to become legitimate under the laws and business practices of both the US and ex-US jurisdictions.

—————————————————————-

1. Your background includes copyright law, technology and music. How did that happen?

I did my first tech deal in 1986 (with Ted Cohen, in fact), and worked on some of the first CD Plus titles and digital distribution issues in the late 80s and early 90s. I moved to Silicon Valley in 1998 because I was tired of beating the drum on digital and getting virtually no support in the music business. I’m back in LA most of the time now, but still in the Bay Area on a regular basis.

I am an unabashed “creator maximalist” but not necessarily a copyright maximalist—those are two different things. My view is that creators have more right to their work product and labor value than anyone else and the law should protect that. No one seems to think that you should penalize any other class of entrepreneurs of the value of their economic freedoms, so I’m not quite sure why creators have been singled out. Aside from the perception that they are easy pickings by public companies with big budgets and lots of lawyers—aka The Man 2.0. But we’re used to dealing with The Man and that’s good experience for handling The Man 2.0.

2. Is it true that you were one of the original lawyers representing Napster?

Yes, and then the core Napster team asked me to get involved with Shawn’s second company, SNOCAP first as an advisor and then as general counsel. I closed up three of their four major label deals and helped them create many aspects of the company that still exist today.

3. Give us your insight into how the Napster case changed the legal, technological and musical landscape.

Okay, you asked. Personally, I think the importance of Napster, the company, was much more significant that the outcome of Napster, the lawsuit. I had nothing to do with the litigation, so maybe I’m biased in that regard. The company changed the music business as we know it.

To say that there was a significant missed business opportunity with Napster is the understatement of the decade if not the century. There were some very bright people on both sides who were able to make common cause, such as AIM, the Harry Fox Agency, Steve Gottlieb, but there were many people on both sides who allowed themselves to be wedged and they way, way overplayed their respective hands.

Most people don’t focus on the Napster subscription service that never launched, but it was not vaporware and it was a significant development. It bore virtually no resemblance to “voluntary collective licensing” and was unlike any of the p2ps who came later. Shawn tried to keep the edginess of Napster within a structure that was rights respecting, or at least ever-cleansing. He never got to launch it.

I often wonder what would have happened if Napster had been able to launch its paid service back in 2000 or 2001. I doubt we would have had to endure the anti-copyright crowd to quite the same extent.

I sometimes think that the anti-copyright world is one big carnie, with side show barkers and thimbleriggers for everyone. First we were told that free was the new paid, then we got the “hybrid economy,” which is a real joke.

The “hybrid economy” was best described by Lessig in his recent Steven Colbert appearance in which he used Flickr as an example of the hybrid economy at its finest—creators (including amateur creators) do all the work, and Flickr makes all the money. The same could be said of amateurs and independent artists on YouTube.

Needless to say, that hybrid model just hasn’t worked for creators, and is built on the back of a largely uncompensated creative class.

Lately, we had a startling revelation from Chris Anderson that free isn’t the new paid, paid is the new free. This is also known as the 10-second MBA: buy low, sell high.

You have major corporations grinding down creators. The Google Books settlement and the YouTube litigation are prime examples of corporate bullying of the creative class. The U.S. government has allowed a major corporation to use its financial might derived from the public markets to essentially steal from creators until they wore them down in litigation which Google can afford to continue essentially forever. Another prime example of why Google cannot be allowed to win in its lobbying efforts for orphan works.

Artists are growing weary of fighting the privileged in Silicon Valley who choose to bully them while offering them beads and blankets in settlement of the fight to steal their copyrights. On the one hand, artists with any leverage are negotiating new business models with downsizing record companies. On the other hand, artists are getting skewered by some tech companies trying to steal their copyrights.

4. Beyonce vs. Etta James in a 10-round cage match, who wins?

Mavis Staples.

5. You represent artists and bands, if I want to be the ‘next big thing’ what is the best route to success in this Brave New Digital World?

That’s a very genre-specific question. It also depends on what you mean by “success.” I highly recommend that artists view the South Park episode on the YouTube stars and their “theoretical dollars.”

6. Can art survive Google? Art doesn’t scale, you know, so that’s a big problem for Google?

On the bright side, it took Steve Jobs, a man of singular creative vision, exactly the right temperament, humor and gravitas, charm and decisiveness, as well as design and marketing genius to will products into existence to create what is still the most significant music retailer in the world. As anyone from “Hollywood” knows, there are lots of people who can come up with great ideas, but there are very few people who can execute great ideas. And we certainly don’t have a monopoly on that realization.

But Eric Schmidt is no Steve Jobs.

Apple has been serving the creative community from the beginning, and Apple understands how to be cool in a world of cool people. Steve Jobs and the Apple team understand that creativity isn’t brought by the stork and originality is not mere regurgitation.

It really saddens me when I hear people in our business bag on Jobs because if it weren’t for him we would be in even worse shape than we are. Apple is one of the shining cities on a hill in this whole online world of corruption and net pollution.

As Hernando de Soto’s work demonstrates yet again, you can’t have a successful market without clear and enforceable economic rights. With very few exceptions, we live in a first world economy offline and a fourth world economy online. iTunes is one of those few wonderful exceptions—but it’s a huge one and an instructive one.

iTunes proves that you can get licenses and you can build a business based on respecting artists, economic freedom and labor value. Even Google appears to be coming around to this realization with the potential deal with Universal—and that is news, that is man bites dog.

We needed a Churchillian figure to stride the globe and knock heads together to make a solution, and we got him in Steve Jobs. I just hope he sticks around forever. I don’t know what we’ll do without him.

I really don’t want to be stuck with The Man 2.0 qua Google. If that’s who we end up with, art will not survive as a means to sustain creators.

7. I see you a lot on Capitol Hill, what are you up to?

You have me confused with Jack Black. He’s up there constantly.

8. ‘Orphan Works’,  a myth or misnomer?

If you define “orphan works” as a 1:1 digitization of a library’s holdings if responsible and accountable people try but can’t legitimately find a copyright owner, it is not a misnomer. There is a perfectly legitimate reason to allow real libraries and preservationists to digitize their holdings or restore decaying works. The Europeans have a very good start on this process, as do the Canadians. They also seem to understand the huge potential for big corporations to game the system. Both those cultures show great deference to the rights of creators and stake holders in trying to balance the interests in an orphan works solution.

That wasn’t what the Shawn Bentley Orphan Works Act was about, however. It was a Google-backed fire sale for our culture and violated so many international norms that it was almost certain to land the U.S. back in arbitration before the WTO just like the infamous Fairness in Music Licensing Act a few years ago. The orphan works bills in the last Congress had very little to do with orphan works and everything to do with a give away for big corporations wishing to commoditize art. Jim DeLong has a great piece on this titled “Google the Destroyer” (http://www.ksrlaw.com/NewsPage.aspx?id=Publications&article=1199752418745).

9. With music distribution becoming increasingly decentralized, will music break into a thousand tiny “colonies of the saved?”

If I were starting a label today, it would look quite different than a label I would have started five years ago or even two years ago. The challenge is to fight your way above the crowd just like it always has been, it’s just that now you are fighting your way above the crowd in a 100 million title bargain bin.

The one thing that is a constant, at least so far, is the live performance. There is just nothing that beats connecting with the fan one on one. Fans still buy CDs at shows, they still buy tickets, they still crave that direct connection. That hasn’t changed, and clips on YouTube will never replace the live show.

I had an argument with a leading member of the digerati one night who said to me in his best Marie Antoinette impression, “Well artists will just have to learn to get along on less money.” I thought to myself, I’d love to hear you say that at a 6 a.m. roadie breakfast in front of a 30-man road crew at the Holiday Inn that’s 2 miles east of West Armpit. Orcs wear makeup — if you catch my drift.

10. You constantly take pro-copyright positions that are unpopular with many in the tech community. Since you are a lawyer and all the big money these days seems to be in tech, have your pro-copyright views been bad for business?

Well, it is a bit schizophrenic. There are some music lawyers who have essentially abandoned their roots in a rush for the gold, but I’m not one of them. I have been trying to explain the goals of the technology community to the creative community and those of the creative community to the technology community for over a decade. You’re almost certain to make someone mad at you.

I like to think that I try hard to understand where the other side is coming from. When you think about how software is created it’s much easier to understand the collectivist thinking in the anti-copyright groups and the open source mindset in particular.

Code is often created by large groups of people who don’t really benefit very much from the commercialization of their work product and get virtually no individual recognition for it. Because engineers know going in that they will likely never own the rights to the code they create, ownership is almost not a factor. That makes it easier for them to embrace the open source concept. They do get some stock in their companies, but not much and the number of big payouts are relatively small compared to the number of washouts in the boom-and-bust cycle.

Songwriters and artists can and often do own or control every aspect of their work. And this is, I think, the origins of the individualist thinking that makes our creative community different from technology. They have little hope of controlling their labor value and maybe don’t care as much about it because they don’t ever expect to have anything to say about how the Google algorithm is used, for example.

I think it’s a shame that part of the extraordinary value that engineers confer on Google is compensated in free food. Can you imagine saying to a songwriter, we own all your songs, but invite your friends over for mac and cheese? It’s kind of sad. It’s easy to see why they don’t want any union organizers in there.

Engineers are often completely mystified by how many songwriters can control one song and there are many complaints about the complexities of music licensing. They just don’t understand how someone who owns 1/16th of a song can be as important as the writer who owns 50%. That scenario doesn’t seem to happen in the tech world. That’s not a value judgment that one is “better” than another.

I think that many people confound pro-copyright with pro-corporate and that is not true. I don’t think that a pro-copyright position is inconsistent with many tech companies since they rely on copyright as part of their IP treasure chest (see Tom Rubin’s many good statements on these issues). It’s incorrect to bunch all tech companies under the same tent.

On the other hand, it is absurd—absurd—that we are into the digital reality 10 years by anyone’s measurement and there are at most three or four companies that have managed to stick out the ridiculously complex licensing requirements for music online. It is virtually impossible to launch a global music brand now without tiptoeing through a minefield of licensing agreements that even experts have trouble navigating.

We have to find a way to lower transaction costs on these licensing problems while maintaining a robust system of economic freedoms and protecting labor value. Every day that goes by without a solution just increases the likelihood that entrepreneurs will prefer to seek forgiveness than ask permission.

11. How about that Creative Commons?

One of the best marketing campaigns in business history was when Arm & Hammer baking soda convinced people that buying the product and pouring it down the drain was a way to keep your pipes clean.

You have to admire Creative Commons’ ability to raise money for their organization on the basis of something that is already a right of every copyright owner. I don’t have a problem with any copyright owner disposing of their rights in any way they want, that’s all fine with me. The problem I have with Creative Commons is the license as it applies to music. I haven’t ever thought about any of their other licenses. Joan McGivern of ASCAP has an excellent article on the subject (http://www.ascap.com/playback/2007/fall/features/creative_commons_licensing.aspx) .

I am somewhat mystified by Creative Commons, the organization, and why they have to raise so much cash. It sure does cost a lot of money to give things away for free.

Oh sure the gate keepers – the major labels – are vanishing. But it seems that the pundits forgot one thing. When there are no gate keepers, no one takes up tickets and there are no gate receipts. The result? No money, no fun, no future…

Instead, the digital distribution of music has been ceded to an anonymous mob of music looters on peer-to-peer services (P2P) that give away our music. These P2P services sell advertising on their sites and keep the ad revenues for themselves. They offer us nothing in return – though it’s our music that brings millions to their service. With the rise of these P2P services, the sale of CDs predictably dried up. People realized they could steal the exact same songs they once paid for, and with no fear of consequences. Some estimates claim that 95% of Internet music downloads are illegal.

With this widespread theft of music, songwriters and artists are now effectively living in an age without copyright protection. We have no way to ensure we are paid for the use of our songs. But we have been here before. One need only look to the past to see how songwriters will fare in such a world.

“An thou make minstrels of us look to hear nothing but discords”
William Shakespeare

Those are the words of Mercutio spoken to Tybalt in Romeo and Juliet, but they have a special message for the P2P music thieves of today as well.

In the 19th century, in the United States, songs from England, Scotland and Ireland were not protected by U.S. copyright laws. So U.S. songwriters had to ‘compete with free.’ They had to attempt to sell music in an environment where those seeking it could simply steal it from those writing in England, Scotland and Ireland. After all, songwriters in those countries had no legal recourse when their music was stolen. Consequently there were only a bare handful of professional songwriters in the U.S., with only Stephen Foster actually rising above the level of anonymity. Yet, in spite of his worldwide fame, he died a pauper in a flop house with only 47 cents in his pocket.

One could belabor the obvious injustice of America’s “songwriter of the century” not being able to make a living but, I want to discuss what the lack of copyright protection does to the quality of the music as well.

In Stephen Foster’s day he was forced to write music for Minstrel shows because that was the only type of song that the public couldn’t get for free from England, Ireland or Scotland. Our greatest popular music composer was reduced to writing ‘darky’ songs for white people in blackface to sing in touring road shows. Foster has often been criticized for the racist content of these songs by those who don’t understand that he wrote what he had to write to try to make a living and keep his family together. In the end he was unable to do either and the public never got to know what songs he might have been able to produce if they hadn’t been so interested in stealing music from abroad. It is a noble thought to believe that songwriters will write and artists perform because they are driven by the pure desire to create. But the reality is that we must eat and put roofs over our heads and feed families. And if we can not begin to meet these basic needs through our creativity, then creativity itself suffers. Those not willing to die paupers will be forced to set aside their creativity in the name of work which will support them.

The decimation of the professional songwriting community of this last decade hasn’t really struck home yet to most current listeners. Illegal downloading continues unabated while legions of sneak thieves plunder the great songs created during an age when there was copyright protection and some level of prosperity for U.S. songwriters. As a result, the quality of music being stolen is still high. But theft of our music is now driving most professional songwriters out of the record selling business and what few remain are engaged in trying to place songs in advertisements, TV shows and movies. The best and brightest popular composers are now reduced to writing background music to sell trucks and clothes. Just like Stephen Foster, they are scrambling to keep their families together and make a living writing whatever they can in order to survive. Once again American music will suffer a long, wasted period.

But perhaps the day will come when the public will begin to ask, “Why must we discover new music on TV commercials, video games, and Grey’s Anatomy?” Whatever happened to the day when we could turn on the radio and hear a hit?

Perhaps people will begin to realize that songs don’t just fall out of the sky. They take blood sweat and ink to create, and the song writers deserve to be paid for the great value and meaning they add to all our lives.

Perhaps then, the brilliant digital future of music may finally arrive.

Let’s hope it is sooner than later. Let’s hope the 21st century isn’t a repeat of the 19th.