Robert Hull is a friend of mine and he writes a terrific weblog focused on pop culture and the history of music over the last few decades (for instance, A Double History of the Supremes’ “Love Child”). Robert’s seen a fair amount of that history first-hand - he used to be an executive at Time Warner, in the music division, and before that he was a writer at Creem magazine. Robert doesn’t often write about politcal issues, yet, while reading over his recent posts, a very political question came into my head: why doesn’t the government do a better job defending the copyright of music? (Mind you, it’s a rhetorical question, as I’ve already got several possible answers in my head, but please add your own ideas in the comments.) For perspective, the current music scene needs to be contrasted against the way things used to be, a perspective which for me was sparked upon reading this history of K-Tel, an old article which quoted Robert and which he has recently reposted:

K-tel wasn’t the first label to specialize in compilations. California disc jockey Art Laboe pioneered the practice of licensing material from several labels with his Oldies but Goodies series in the Sixties. Ron Popeil’s Ronco (immortalized in “Weird Al” Yankovic’s “Mr. Popeil”) sold plenty of compilations alongside useful products like Mr. Microphone and the Record Vacuum. However, it was K-tel that truly cultivated the form into a pop culture institution ripe for parody.

During the Seventies, K-tel’s marketing ploys had the same seedy appeal as a carnival barker’s come-on. The pitch was fast and furious, with deftly spliced snippets of music, song titles rapidly scrolling across the screen, and an overcaffeinated announcer imploring you to order now. Some aficionados swear the ads said K-tel albums were not available in stores, even though they were — at unhip outlets such as drug and discount stores.

You won’t find a much better snapshot of pop music in the early Seventies than 1972’s Believe in Music. Named for Gallery’s “I Believe in Music,” the album kicks off with the 1-2-3 feel-good punch of “Brandy (You’re a Fine Girl)” by Looking Glass, “Beautiful Sunday” by Daniel Boone, and “Sunny Days” by Lighthouse. Throw in Donny Osmond, the O’Jays, and a few more weird obscurities like Mouth & MacNeil’s “How Do You Do?” and Bulldog’s “No,” and you have a bass-ackwardly definitive compilation rivaled only by Nuggets.

Maybe K-tel butchered art for profit. But even if that were true, does it make K-tel any worse than a record company padding a marginal artist’s album with filler? Though it came at the expense of artistic vision, K-tel’s Seventies output was nothing if not value-driven. Where else could you get up to 25 hit songs for the low, low price of $5.98 ($7.98 for 8-track)?

That said, the sonic quality of vintage K-tel albums is truly awful. You’ll find better low end on a distant AM radio station, and the flimsier-than-Dynaflex vinyl ensures quick scratches if you so much as breathe too hard on it. And no discussion of K-tel would be complete without mentioning the blinding colors and screaming fonts utilized in the subtle-as-a-meat-cleaver cover art. But, as the tired old saying goes, that’s part of the charm.

Robert Hull and I both played a role in the establishment of the online presense of the Monkeyclaus Music Studio (Robert as an advisor and myself as a computer programmer). I distinctly recall a meeting where one of the musicians who was working for the music studio said, “Look, I’d never pay for music myself. I don’t know anyone who pays for music. Not unless we know the money is going straight to the musician.” That was a long meeting, and I recall their being some tension between the musicians and the owner of the studio. One reason why the website is so explicit about its adherence to eco-friendly values and to charity is because the musicians made clear that they and their friends needed a good reason to pay money for music. Otherwise, why not get it for free? Fans want to feel their money is doing something good, like supporting the artists directly. Otherwise, there is no point paying for the music.

I might be exaggerating slightly. iTunes is still bringing in money. It might be the only music venue out there still clearly doing well. Time-Warner’s music division is still bringing in money though, according to the linked article, its profits are falling. eMusic can still make some money though the linked article suggests it can only make money by ripping off the labels, a reality which is causing labels to leave it, suggesting its strategy is unsustainable.

It appears to be a hard era to make profits off of music.

Over the last few years, I’ve been in many meetings like this one (not with venture capitalists, but with angels, meetings where so-called visionaries were pitching what they called “the future of the music industry” to folks who had some money to invest):

The crowd is fairly gregarious, and moods soar even higher when, just after they all settle down to seats and put down their chopsticks, one of the partners reads his fortune-cookie message aloud: “The universe without music would be madness.”

Cramer takes immediate control by giving himself a power introduction: Nimbit CEO and a 26-year veteran of software start-ups who has guided eight companies to six successful exits. (He twice left companies for other opportunities.) The intros run around the table, bringing things back to Cramer, who signals Faucher to begin the presentation.

This turns out to be a calculated move. The partners by now all know Cramer and the business case. The trick tonight will be to win rave reviews from the music insiders. And that calls not for Cramer’s hard-edged business gab but for ex-rocker Faucher’s passionate view of Nimbit’s mission to empower independent musicians.

As Faucher describes how Nimbit will rescue the beleaguered artist from the claws of iTunes and the drudgery of staying on top of 20 different websites, Borgen, whose looks are a rugged riff on the haunted-artist motif, can’t keep from loosing an enthusiastic “Wow.” All eyes turn to him. “If someone offered me a way to keep everything up to date, it would be huge,” he says.

Borgen’s enthusiasm proves contagious, and the partners and insiders suddenly can’t seem to find enough things to love about Nimbit. “Doesn’t this have the potential to become a virtual label?” asks one partner. “The timing is perfect, because bands are shifting away from labels and trying to do more with their managers,” says Nordin. “All the indie labels will support this,” adds Rose. “Could Nimbit sponsor showcase events in different cities?” asks Borgen, whose opinions seem to carry great weight tonight.

The meeting starts to dissolve into bubbly side conversations, but Nordin signals for the group’s attention. “I believe there’s a huge market for Nimbit,” he says. “But I have some anxieties. There already are ways to do all of this separately, and I’m not sure the message that you can do it all in one place is enough to pull people in. Nimbit is offering more efficiency, but it would be better if it could offer more functionality–if it let you do something you couldn’t do anywhere else.”

Cramer, who has been content to let everyone else do the blabbing as long as the talk is happy, immediately jumps in. It’s true, he says, that websites have been springing up to address every niche that’s out there for independent musicians. But that’s left musicians facing a fractured industry that’s just begging for centralization.

The crowd doesn’t seem to buy it. “It’s a lot to ask someone, to move everything they’ve been doing on these other sites to Nimbit,” says a partner.

“If you don’t figure out a way to move a large number of people to Nimbit as fast as possible, you won’t be nearly as successful as you need to be,” says another.

Cramer, Faucher, and Antoniades all start to reply at once, but Nordin cuts them off. “I had a couple of guys from some of the bands I work with go to your site,” he says. “They saw things they liked, but not enough to jump.”

This lands like a bomb and is followed by a moment of heavy silence. But Cramer quickly recovers. “The site today doesn’t reflect the vision of the business,” he says. “There are lots of things we can do to get people to the site. Not one big magic thing, but my experience in business is that it takes lots of effort and tuning and iteration to figure it out, and once you do that, you just turn the crank and scale it up.”

This doesn’t do the trick; the crowd seems to want the one big magic thing. A host of new objections now spring up faster than Cramer can respond. Wouldn’t it be difficult to build software that can automatically dispense good advice to musicians in all situations? Aren’t these market numbers suspect? Couldn’t Nimbit be torpedoed by a competitor that simply took a smaller cut of the musician’s revenue, or even no cut at all? Wouldn’t it be better to take a small monthly fee?

Seizing on this last point, one of the partners asks Borgen if he’d be willing to pay $10 a month for what Nimbit is offering. The room falls silent. All eyes are riveted on this young artist as he thinks it over. “I’d need more proof,” he says, finally.

“We give him all this sushi and a personal pitch, and he still isn’t sure it’s worth $10,” says one of the investors, playing it up for the room as a joke. Everyone laughs politely–except for Cramer, Faucher, and Antoniades, who smile gamely but look stricken.

The kind of licensing regime suggested in the article about K-Tel describes an era when the music labels had an easy time generating multiple revenue streams off of a hit song. Legally, that licensing regime is stronger than ever, yet in practical terms it is dead. The death of K-tel is just one small reminder of how dead that era is.

I am a bit surprised that the government does so little to enforce protection of this kind of “intellectual property”. That there should be a million sites where people can freely trade music is sort of just taken for granted nowadays. Napster horrified the music industry back in the 1990s, and the site was shut down, but now there are many more sites where music is traded, and the shock has worn off. I’ve known a great many people who insist that the government tends to be biased toward protecting the rights of property owners more than other categories of citizens. If that’s true, then why does the government stand by and watch as the music industry dies? The RIAA has been aggressive in pursuing those who violate the copyrights held by those labels that the RIAA represents. And yet, the RIAA lacks the resources to go after the millions of people who flout the laws regarding “intellectual property”.

I’m sympathetic to those who argue that the phrase “intellectual property” is an illegitimate one, that, in fact, copyright and patents do not constitute anything that should be called “property”. The legal authority behind modern copyright laws (in the United States) derives from paragraph 8 of section 8 of Article 1 of the U.S. Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. But some argue that this paragraph exists to limit copyrights and patents, rather than enable the kind of broad grants that we have today. In 1774 the government of the colony of Virginia commissioned Thomas Jefferson to write a letter to King George imploring the king to defend the rights of the colonists against the intrusions of Parliment. Jefferson summed up the history of both the colony and of the struggle against the Stuart kings, whose overthrow had been an aim of the revolutionary era, which was capped with the passage of the English Bill Of Rights, rights which the colonists assertted were universal rights that applied to themselves as much as to anyone living in England. One of the many crimes for which the Stuart kings were hated for were overly broad patents - a patent on salt, a patent on ink, a patent on beer. This is a bit of history that is now mostly forgotten, but was keenly in the minds of the Founding Fathers when they wrote the Constitution. Much of the conflict of the 1760s and 1770s arises from the feeling of the colonists that Parliment was enacting the same crimes as were done by the Stuart kings, and that sense of injustice certainly informed the writing of the Constitution. So I’m sympathetic to those who would argue that paragraph 8 of section 8 of Article 1 was meant to limit patents and copyrights, as much as enable them. But still, we live in a society based on case law, so the way the courts decide to interpret a law matters as much as the law itself, and there can be no doubt that, since the passage of the 1976 Copyright Act, the courts have increasingly come to see copyrighted and patented material as a form of property.

Perhaps the oddest thing of all, regarding the direction of “intellectual property” laws during the last ten years, is that the laws have extended copyright and patents in the direction of being true, permanent property, yet enforcement has been lax, and sometimes non-existent. A cynic might argue that the government is only interested in defending intellectual property when that property belongs to large corporations, and yet, the music labels are quite big (or part of huge empires like Time-Warner), and still they get little help from the government. When I say “little help”, I mean the FBI (and other law enforcement agencies) has put insufficient resources toward cracking down on those groups that do the most to facillitate music trading (where “insufficient resources” means “not enough to limit the amount of trading that goes on”). Is this a case of stupidity, of the government simply not knowing how to defend property in the age of the Internet? Or is enforcement simply hopeless in an era of decentralized peer-to-peer trading networks? If the latter, what is the point of the ridiculous extensions to copyright that Congress keeps enacting?

Mind you, I’m not saying that greater enforcement would be a good thing. Cracking down on music sharing could be almost as hopeless as cracking down on the drug trade. And I’m uncomfortable with the idea of copyright morphing into “intellectual property”. I can easily imagine a great multitude of economic ills that would afflict the society that treated copyright and patents as a form of true property (not the least of which being that technology would tend to get more expensive over time, rather than cheaper, if royalties had to be paid on every discovery, going back centuries, that are now embedded into modern objects and services).

But I remain curious about why things are happening as they are happening. Why is the government extending copyright and patent law in the direction of becoming true, permanent property, while offering almost no help with enforcement of those property rights? Does this strike anyone else as a strange paradox of the current era?