Pirates have a proverb: if your boat is sinking, don't sue the water

[imomus]

More tales of piracy today. A story in the LA Times, Sinking a music pirate, details the cautionary tale of one Mickey Borchardt, a student arrested by the FBI and involved in a criminal trial for illegally trading music files online. The RIAA are not sueing him, but are clearly behind this, and have recorded a propaganda video in which Mickey "repents". Mickey talks in the LA Times article about his deep shame about his former life as a buccaneer on the high seas of P2P. He has become a collaborator, a shill. The message is that property is property and theft is theft. He pled guilty in March and will be sentenced in May "in the same courthouse as Zacarias Moussaoui", which, symbolically at least, can only mean one thing: the death penalty. But, while that's no less than Mickey seems to think he deserves, it won't mean much; he's already ritually disembowelled himself on behalf of the RIAA and its message.

I have a few things to say about this. First of all, Mickey, as a recording artist I have to say "Thanks for dying one thousand deaths, but you have not died for me. NOT IN MY NAME!" The RIAA's cause is not mine. If I have to choose between being an industry bod and being a pirate, well, I choose piracy every time. The free blue waves of the high seas of musical adventure win out over the fenced green tombstones of the money-property graveyard. Of course they do.

Let's take a case in point. Some reckless buccaneer with a music blog has posted the whole of the new Stereolab album Fab Four Suture. Here it is. Now, I know Stereolab personally. I wouldn't say they're exactly friends, but we've played together, appeared on panels together, and so on. How do I feel about downloading their stuff? Well, I feel it's okay. I agree with the general impression that (like the music industry itself, some might say) Stereolab have been coasting for a while. They keep releasing the same record. It's a nice record, subtly arranged, pleasant. But I've bought it quite a few times already. So I feel justified in just downloading this new one.



No doubt some people will feel the same way about my new record, Ocky Milk, and that's fine too. These "unconvinced" listeners will at least listen, even if they don't buy. That may not matter to the RIAA, but it matters to me as an artist. And even if these people don't buy this record, they may buy another one, or they may come to a live show, or they may pay for a track off iTunes or E Music.

Or, you know, one of these downloaders may have sex with me, or give me a column in a magazine, or ask me to come and give a talk at an art school, or collaborate on a project, and that will lead to, you know, marriage, or a surprise twist in the career path, or something equally amazing. "Peer-to-peer" can mean much more than just sharing music. To the RIAA, a "peer" is simply a freeloading customer, a source of monetary loss. But to me a peer is a person, the source of all sorts of possible gains, quantifiable or not. To the RIAA, with a business agenda but no human agenda, that peer engaging in P2P can only mean the loss of dollars. To me it can mean the possibility of barter (the theme of artist Carolina Caycedo's work), but also friendship, communication, and a million other human possibilities.

Live At the Witch Trials is an article on Pitchfork about the RIAA's persecution of P2P pirates. "Recorded music sales worldwide have dropped by more than 15% since peaking at nearly $40 billion in 2000," says entertainment lawyer Steve Gordon. "Although sales of digital singles on iTunes and other authorized digital services have multiplied in volume, they have not earned nearly enough income to offset lost income from declining CD sales... I tend to believe there is a cause and effect between P2P and declining music sales -- but that the record companies exacerbated the impact of P2P by (a) Overpricing CDs, and (b) Failing to give music lovers a high quality low priced alternative to P2P."

Exactly. But it's bigger than that. The record industry pays too much attention to incremental changes in sales figures and too little to the big picture: the sea change the internet has brought, and the big navigational changes we need to make in order to respond to it. The important questions are the ones the RIAA isn't asking. Does music want or need to be property? Does it want or need to be an object? What happens when you get a number one single without selling a single CD? Is it worth becoming a beastly, litigious and unpopular person for the sake of a lost 15% and a rigid adherence to an outdated (and unjust) business plan? Shouldn't the music industry instead be thinking about the post-atom bit and the post-bit atom, developing a new focus on non-digitizable forms (concerts! performances!), or looking at how physical music objects might enhance themselves as niche products?

I still like CDs. As an artist, that's one of the things I make. I want you, ideally, to buy my CDs. They're the best platform for me to communicate from, and I put a lot of work into getting them right. I commission beautiful sleeves from James Goggin, I get John Talaga to design morphs between tracks that make no sense at all if you're listening on an iPod shuffle. I prefer the AIFF format to the mp3 format. It sounds a bit better. I have other issues with mp3, but they're mostly about music saturation and the risks of audio pollution of the environment (the subject of my next Wired column, as well as a Click Opera entry last month). I do think buying CDs is virtuous, but it won't always seem that way if the people selling them appear as vicious as the RIAA currently does. We pirates have a proverb: if your boat is sinking, don't sue the water.

There's no high moral ground when you're at sea, but if you want this whole thing in landlubber language, nobody puts it better than Saint Matthew, apostle and evangelist: "Therefore take no thought, saying, What shall we eat? or, What shall we drink? or, Wherewithal shall we be clothed? (For after all these things do the Gentiles seek:) for your heavenly Father knows that ye have need of all these things. But seek ye first the kingdom of God, and his righteousness; and all these things shall be added unto you."

Comments

[ortho-bob.livejournal.com]

one of these downloaders may have sex with me

How about a firm handshake and a boyish grin? Or would that just get me half the tracks?

[scottbateman.livejournal.com]

I download most of my music these days, simply because I can't afford CDs right now. But since I mostly bought used CDs before, the artists aren't missing out on much money, and the stuff I like, I evangelize about at every opportunity, leading to some people to buying the music (I have friends who turn to me for music-purchasing advice, since I'm up on all the new stuff). Which is all a roundabout way for me to rationalize stealing music, I suppose, but I feel the net result is good for the artists I like the most.

For instance, Stereolab--I think the new album, while not as great as their work circa 1994-6 (Transient Random, Mars Audiac Quintet, and Emperor Tomato Ketchup are all nearly perfect), is still a vast improvement over their past two studio albums, and I'm a-tellin' everybody to go out and buy it.

[jimyojimbo.livejournal.com]

I can't help but suspect that if the only music being swapped on P2P was your stuff, or Stereolabs, or anything down the less "populist" (gah!) end of the spectrum, the RIAA wouldn't two sh1ts about it.

Again, I supsect that most of the 15% drop in sales is down to the younger end of the market adn mainstream pop sales. I imagine that rather than buy a full-price CD consisting of singles plus filler, the kids would rather just download the singles. Even if they do that legally, it's going to hitturnover, isn't it?

[imomus.livejournal.com]

The fact that Mickey is being sued not by the RIAA but by "the American people" (it's a civil criminal trial) and that his case is being heard "in the same courthouse as Zacarias Moussaoui" suggests a sinister subliminal message: that music pirates are terrorists aiming their hijacked music planes at the Twin Towers, attacking the American people and the American way of life. So, while 15% may not seem like a big deal, the metaphor is that a 15% hole in its skin can collapse a whole edifice.

[jimyojimbo.livejournal.com]

Well, like i said, I think its likely (with no evidence whatsoever!) that most of the drop in sales will probably be due to a certain market and a certain type of music. The stuff I'm thinking of - Britney, Beyonce, etc etc - aren't treated as music or art by the companies, are they? it's more like a corporate investment with the decision based on risk vs gain. If we spend x million on songwriters and production, then x million on marketing, do we feel that we have a good chance of recouping and making a profit? It seems like a very difficult business model to maintain; it'll be a high risk investment and so I imagine a 15% sales drop really does give them the willies. And this is where the majority of the majors' money comes from, I imagine.

Hopefully they might (!) realise that all this arresting on or two kids scare tactics is just so much pissing on a mountain to try and erode it, and they might start cutting back on their unsutainable "artist" rostra. And pigs might orbit the moon, as they say.

[patitamofi.livejournal.com]

So you're saying this is all about finding a spouse or some nookie for your non-industry bod?!

Seriously, it's troubling that this is a civil criminal case. Combined with the effort to ram DRM down our throats, it seems that much more puritanical--like we shouldn't be listening to music at all.

Especially not if it's all about sex! Gasp, the horror!

[(Anonymous)]

Out of interest, how many CDs would you on average buy per month (ie actually part with your hard-earned cash)?

And OK, you've mentally justified downloading the new Stereolab, but isn't it the case that one can always make up some justification for downloading something if one wants? What if you find yourself downloading something you genuinely think is original and marvellous? Do you then go out and buy it? That Scott Walker album you were raving about the other day. Scott only puts out an album once a decade, I doubt if he's too rich. Are you going to buy his album on release? Is there any moral compunction to buy an artist's work at all, or is every purchase like a voluntary act of charity? Just wondering...

[horsdumonde.livejournal.com]

In the everlasting wars between Art and Greed, one has an obligation to support the cause of Art and oppose that of Greed, which means paying for what ought to be paid for and stealing what ought to be stolen, from those who deserve to be stolen from. The next time one of us pays top dollar at a big box chain store for a Top 40 recording, he is stuffing bills into the g-string of mediocrity, meanwhile, across town at the tiny, struggling independent record shop, the bored clerk is staring at the clock while the music one ought to hear languishes on the rack, unappreciated. If we who are able to think for ourselves do so before acting, the problem will take care of itself.

[badspelling.livejournal.com]

Exactly Momus, exactly. I am with you on the whole CD thing. The more I muse on downloading (or P2P piracy) the more I think that paying money (at today’s prices) for an mp3 file is ridiculous folly. I mean, these files barely exist at all. One loose surge from your mains supply and they’re gone. When was the last time a CD you bought spontaneously combusted in your hand?

I'll continue to buy the CDs and then I can burn them into whatever format I want. I think that's the question really: Do we have to pay money for each format that we use to digest this music? Surely, after the initial purchase of the music, on your favoured format, it should be yours to do with what you will. I think this should include sharing it with friends, via what is an inferior quality format. I know, intellectual copyrights blur this next point a bit, but imagine buying food and only being able to eat it yourself.

[grande.livejournal.com]

Forgive me, I'm feeling a tad dense today so this will likely be not so eloquent...
There's no high moral ground when you're at sea
You're right.
But to me a peer is a person, the source of all sorts of possible gains, quantifiable or not.

I guess I see all music as one of those things thats sort of intangible. It's a service which is non exclusive. We're all providers in a sense. The beauty of the p2p networks can be likened to ad revenue. Even the folks that aren't paying for it with cash are generally doing a service. Or at least I'd like to think so. This may not work in the short scale of things, but I think in the long run, exposure and coverage trump the initial numbers, and likely bring in more money than folks realize.

As for where I stand? I'd have to agree with you on most things. Do I distribute and download? Of course. Generally speaking I only do this with groups I don't think people have heard of, so I take some solace in that, but I feel its important to buy the album just the same. I also buy their merchandise and see their concerts. I want to support these folks because I want them to keep making the music. Machines like Madonna charging 355 bucks for a ticket to her latest concert? I doubt any amount of money I could pour into that machine would make it run any better or keep it going when it's on its last leg.

It's kind of amazing. To those that make the most money, the dollar is important for an entirely different reason that the dollar is important to those who make less. Once more proving the high ground varies upon on the wave you ride.

[imomus.livejournal.com]

I probably buy about 4 CDs per month in the store. And they usually aren't the ones I end up listening to most. In fact, given my peripatetic lifestyle, they're a problem. I'm living out of a suitcase, and they weigh it down. Bloody atoms!

And OK, you've mentally justified downloading the new Stereolab, but isn't it the case that one can always make up some justification for downloading something if one wants?

Sure, and one can always make up some justification for selling a CD for $18 dollars then giving the artist a tiny bit of that. You know, the current music industry model did not come down from the mountain with Moses.

I think there is a moral compunction to buy CDs as a gesture of support for the artist and also the label who invested in them. I will not, for instance, share the copy of Scott's new album I have. And I will not reveal, even under torture by RIAA inquisitions, where I got it. This record stops with me. I do plan to buy it later. The mp3s have convinced me that it's worth every cent. I'm glad Scott was able to make it, and I appreciate that a record company invested in him, and needs return on its investment. I know that my rave the other day has inspired many people to buy the record.

However, as a musician I can tell you that I record with very minimal record company investment. I see no consistent correlation between musical quality and investment, nor between the size of the label and the size of the artistic achievement. I can envision a future without a music industry, but not a future without music lovers, so when I see the music industry torturing the music lovers (or getting the government to do it for them), I see something sad and cruel, something dying exacting punishment on something living.

On the point

[(Anonymous)]

"To the RIAA, with a business agenda but no human agenda"...

Honestly, this particular sentence and your very mellow analysis of the P2P issue from an IP rights owner's (sic) point of view, give the most straightforward account of the whold damn matter - EVER!

[tassellrealm.livejournal.com]

The internet has pretty much weaned me off everything.

Not only can I not be bothered to buy/own things like cds, records and books - I can't even be bothered to download anything either.

I must have the cleanest hard-disk on the planet.

Re: On the point

[imomus.livejournal.com]

I can only tip my hat to Karl Marx, whose distinction between exchange value and use value (http://en.wikipedia.org/wiki/Use_value) is as relevant today as it was when he scribbled it on the back of a Greek Street napkin.

[silenceinspades.livejournal.com]

Or, you know, one of these downloaders may have sex with me, or give me a column in a magazine, or ask me to come and give a talk at an art school...

isn't that sort of the intent of the internet to connect people? that seems to be what the industry is most scared of.

i went to the virgin megastore in union square for the first time over the weekend and could not bring myself to spend $18 on vashti bunyan or pink mountaintops though i fully intended on purchasing them. had they even been $14 i would have. instead i went home and angrily downloaded them. so, the virgin megastore actually promoted aggressive downloading from me, and i'm a passive person. they are obviously looking to start a fight.

[notazionist.livejournal.com]

Since using P2P, I've bought and digested more music then ever before. For example, our livejournalist of whom I'm posting on his blog. But I've also never spent more on music in my life -- I travel to shows more, buy more CDs. With P2P, you can travel with an artist more more quickly, find out who produced them, who else the producer produced, who else the artist collaborated with, etc. You can understand musical histories through music, if you hadn't lived around the time the music was produced.

Artist friends of mine are in the same boat as you, Momus. They offer their films and music for free downloads, hoping that those unfamiliar will be interested in a purchase. And it definitely works for more "independent" artists (I believe artist revenues, for self-distributed musicians and filmmakers is up near 25%). I plan on hosting my films online for free downloads.

Ahoy!

[mini-snape.livejournal.com]

As long as they don't actually hang us and I get to finish my bachelor thesis about pirates, I'm fine with it all.

I especially love the way DVDs call me a pirate. It's like a little compliment each time.

[(Anonymous)]

nick, you're unfair. this record is worth the 10 pounds it costs in most shops. i've bought it (as i systematically buy every new stereolab record) and i feel just happy with it. (odot)

[landonmetz.livejournal.com]

Mickey Borchardt sounds like an RIAA exec.

[(Anonymous)]

I wish I could find the Vashti Bunyan album in a real store for £10. (which is what $18 directly translates to at the moment)

Virgin Megastores' standard non-offer price for any album they happen to have sitting about ignored on a shelf is £16.99, I noticed yesterday. Almost $30. Oh, economies.

peer 2 peer with momus!

[cityramica.livejournal.com]

i find your ability to simultaneously maintain and utterly destroy the myth/mask of the artist astounding. at one point i thought i had seen beyond your facade, but then i realized that you totally embody it. human agenda indeed. it's funny to be friends with you. who are you, anyway?

[merrow-sea.livejournal.com]

I download to check things out. If I really like it, I buy it. I want the package: the art, the lyrics, the whole intent of the artist in this particular piece of work - even the 'filler' since that's subjective.

CD's that don't stand the test of time get traded in at the local indie music store for new works. I burn mixes to turn friends on to music I think they'll like. It's exponential exposure for artists, especially those without big PR budgets.
Weed was started by music lovers trying to come up with a new (legal) distribution model:
http://www.weedshare.com/
I have a mac and so haven't tried it, but it's good to see people experimenting with an alternate business paradigm.

[(Anonymous)]

Pepsi and iTunes had a similar advertisement last year. They took a bunch of young people who had been sued by the RIAA for illegal downloading, and had them on a commercial where they advocated "legal" downloading off of Apple's itunes while also repenting for their previous sins. The kids even said afterwards that they were using their paycheck from the commercial to pay off the legal costs of the lawsuit.

-Thessaly

Well-played!

[(Anonymous)]

Y'know, I've read lots and lots of articles smearing the RIAA. Hell, back in my heady columnist days I wrote quite a few. But this one takes the cake: it gets to the real crux of the biscuit, as Zappa would say -- what is property? Can music be "owned"?

And you're absolutely right: the P2P platform does open itself up to some exciting collaborative possibilities. Are you familiar with the "demo scene" that is an integral to the Soulseek community?

-Rob R.

Re: Well-played!

[taniwha-nz.livejournal.com]

hmmm.....
so, can you explain then why your music on emusic.com is restricted and cannot be purchased by people here in New Zealand? (and other countries i'm sure)

emusic sez "We're sorry. This album is unavailable for download in your country (New Zealand) at this time. Please check back later."

(meanwhile itunes is yet only selling in a handful of countries so far)

I'm happy to pay for it... but it's a question of how much effort i want to put into finding somewhere that will actually sell it to me.

hence P2P is my friend