Warner / Griffin plan, same old song
p2pnet news | P2P:- It’s the same old song . . .
Warner Music Group has hired Jim Griffin to come up with a plan to issue licenses to ISPs so that their customers can share music without threat of being sued. The ISP would add a couple dollars to the customer’s monthly bill in return for access to music.
It sounds like a wonderful idea, until you take a closer look at it. Focus on the winners and losers from the plan.
WMG wins. First, they get that monthly stipend from all the ISPs without really having to worry about how good the music is they put out any more. As long as there is an Internet, they will be paid, no matter how much, or how little, crap they actually produce. This may actually be a business model for music that Edgar Bronfman himself cannot screw up.
And like they say on the infomercials, “but wait, there’s more.”
WMG wins a second way, too. They can stop financing all that litigation against grandmothers and crippled kids with an open p2p file on their computers and reaping the well-deserved public abuse it engendered. This isn’t going to make their litigation counsel happy, but, hey, someone’s got to feel the pain that progress brings.
The ISPs break even on the balance sheet. Whatever WMG charges, they pass along to their customers. They get free from dealing with those John Doe subpoenas, too, so that makes them winners that way.
The customers? Well, that’s the funny thing about this. They lose. In some very interesting ways.
Customers can still be sued
This idea is being “spearheaded” by WMG. No other major label (or even an indie) has joined in for one reason. It would be collusion in restraint of trade if they did. Now I understand that the powers behind the idea are seeking anti-trust clearance from the Department of Justice to join arms with their copyright holding brethren and begin singing “Kumbayah (or else)” at the ISPs.
And until and unless they get every copyright holder to agree to join in and share the revenue from the monthly fee, the customer that downloads a non-member’s music is still infringing on copyrights. And they can still be sued.
Just like, today, only by a smaller number of potential plaintiffs. Boy, that’s progress.
But there’s another class of “losers” that this plan creates. Those ISP customers who don’t download anything. They’re paying a couple extra bucks a month for the privilege of not getting sued for something they’re not doing, with the money going to entities that they aren’t doing business with.
And if you think this is going to stop with a monthly music fee, you’ve got another thought coming.
You think the MPAA won’t expect to be compensated for all those movies floating around on BT? Hey, even a Matthew McConaughey movie is going to make money under this system.
How about game and software rights holders? Rights holders in text, and graphic arts, too?
How much do you think it is going to take to subsidize every holder of rights in intellectual property so they never have to really care any more if their stuff is really any good, because they are going to be paid every month whether it is or not?
It’s more money than I’ve got, I can assure you.
‘How do the artists get paid?’
You may notice that I’ve limited these last comments to rights holders. I haven’t said a word about the artists and writers who actually create this stuff. We can expect Mr. Griffin and the wonderful folks paying him to make sure we understand this is all about the artists.
Except it isn’t.
There isn’t one artist involved in this plan. There isn’t one person dedicated to looking out for artists involved in this plan. You can be we will hear of some high minded promises, and there will probably even be some hand picked “artist representatives” to watch over things, even if they aren’t really accountable to anyone except the people who picked them, who are pretty much guaranteed not to be artists.
I work for artists. Every time someone comes up with the latest plan to save the music business, I always ask the same question:
“How do the artists get paid?”
I don’t like the answers this time.
It’s pretty much settled that if this plan goes into effect, one organization will have to be charged with collecting the money, figuring out who is going to be paid, and paying them. Now it’s pretty clear that this outfit is going to have to rely on sampling rather than a full census of all the musical uses on everyone’s computers, if only because getting the full census involves a level of intervention that exceeds even the most Orwellian of Big Brother scenarios, and no one is seriously suggesting that.
So they’ll sample. And that’s not good, unless you’re in the sample, and 99% of artists aren’t going to be.
Sampling favors the mainstream. If WMG has 99 artists, and you are putting out your own by yourself on your own label, a sample is going to hit a WMG 99 times out of a hundred, and you one time out of a hundred. That means that WMG ends up with 99% of your money as well as all of their own.
And no one is letting on what share the artists get out of all of this. Given that the major labels are still actively arguing that downloads are to be treated as royalty events under contract terms, which means that the labels are often crediting artists with only 2 or 3 cents per download, even when they net 70 cents on a download through iTunes.
Remember who is financing Mr. Griffin in “spearheading” this plan, and where the money ends up should come as no surprise to anyone.
When it comes to issues of who makes what money from the exploitation of music, copyright holders like labels are on the opposite side from artists.
The only time labels have shared money with artists has been when they’ve been forced to, and that usually happens only after the game has been rigged in the labels favor. Take a look at SoundExchange for a good example of this.
So let’s look at the scorecard if this plan goes through.
They win, you lose
WMG and the other copyright holders are assured of immense amounts of continued revenue without any consideration of the quality of the stuff they make available.
They win.
They don’t have to sue as many people as they are doing now.
They win again
ISPs don’t spend a penny out of their pockets, passing the fees on to their customers. Their legal fees go down, too, because if they sign up, they don’t get sued.
They win.
Their customers who download get some protection from being sued, but only as long as they download music that is provided by the copyright holders who are part of the plan. If they wander off the reservation, they remain fair game.
No gain there for customers.
The customers who don’t download get to subsidize the ones that do.
They lose, to the tune of millions of dollars a year.
And, as usual, artists will be used as poster children, but will have to rely on the honesty and sincerity of record labels to participate in this plan and see one cent of the money it generates.
They lose, too. Again.
The devil is in the details
The devil of the Griffin plan will be in the details.
We haven’t seen many of those details yet.
We don’t know how the plan is supposed to be accountable to artists or to the ISPs or to the customers of the ISP.
We don’t know how the plan will deal with the need for transparency, so everyone can see that all the players are being treated fairly and honestly.
We don’t know how the artists will be compensated, if they are going to be compensated at all.
There are some pretty smart people who question whether this collective license is the right way to go, just because those details may not have answers that are good enough, and alternatives (such as a more comprehensive system of direct payment from customers to artists) can be designed that don’t face those problems. They might be right about that, and the world might not collapse if the Griffin plan fails to be embraced by the entire world.
As we hear more from WMG and Mr. Griffin, we should be paying close attention to how these problems are addressed, and demanding good answers.
Everyone has a stake in this, whether or not they actually download music, and it will only be a step forward if their needs are heard and addressed.
The idea that the Griffin plan works well enough because some people win if it is imposed shouldn’t be enough to carry the day.
Fred Wilhelms – p2pnet
[If the corporate music industry had any ethics, Wilhelms would be its 'ethicist-in-chief,' wrote CounterPunch's Dave Marsh. Wilhelms is an entertainment attorney based in Nashville, Tennessee. You can contact him at fred.wilhelms @ gmail dot com.]
hired Jim Griffin – Warner Music ‘classic protection racket’, March 28, 2008
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