Designing Sound, as the name implies, focuses entirely on the craft of audio from film to games. While there are industry-driven sites devoted to the topic, this blog is entirely the labor of love of composer and sound designer Miguel Isaza, whose writing has also appeared on Spain’s Hispasonic and Monofónicos. (Miguel also tweets to Reaktor aficionados as reaktorlovers.) That personal perspective has imbued the site with the feeling of artists talking to artists.

http://designingsound.noisepages.com/

All week, Designing Sound has focused on Rob Bridgett, who has worked on numerous sound designs for games. Despite the massive growth of the game industry, most top artists have worked largely in obscurity – even less so in sound. There isn’t an equivalent of Ben Burtt, Randy Thom, Walter Murch, or others. (Those greats have been featured in Designing Sound specials, too.) Gaming is a young industry, to be sure, but that’s no excuse for simple ignorance.

In this week’s interviews with Isaza, Bridgett talks frankly about every last detail of what goes into sound production. He’s frank not only about what can go right in a game production – Scarface, pictured above, gets special treatment – but also what can go wrong. The brutal deadlines, fluid production parameters, and tangled production process of games can exact a toll on sound in gaming. The high point of this: Bridgett has gotten to employ the full resources of Skywalker Sound and has been at the forefront of bringing Hollywood-style sonic treatment to gaming.

I’m sure many readers here are curious about the games industry. There’s still time to forward your own questions to Miguel to pass along to Rob Bridgett.

Exclusive interview

Rob Bridgett Special

Ask your own questions

Incidentally, this is beyond what we even imagined for our fledgling noisepages.com, which we’re readying for a full launch as a community and blogging platform. Miguel created Designing Sound without prompting or assistance – it’s entirely his vision. It’s great to have people sharing information in this way. I can’t wait to see what’s ahead.

With the weakened world economy, content in general faces plenty of gloom and doom. Advertising models are severely weakened. But, oddly, in the world of music, there are some positive signs that the shift to decentralized, online distribution might actually be going well — and maybe economic pressures are simply ensuring the parties involved find some way to make the adjustment.

And music distribution is becoming wonderfully weird and diverse – maybe far more so than in recording’s so-called golden age, an era in the past dominated by racial division, predatory labels, and a few dominant big businesses. (Money is tough as always, but it does make you wonder why we complain so.)

One sign of the shifting landscape: online streaming site Pandora is now actually calling for more performance fees — for terrestrial (AM/FM) radio, anyway. Ars Technica has been doing a great job of following the issue:

Pandora now pushing radio to pay for music, too

It seems Pandora – along with other webcasters – was able to cut a deal on webcasting rates, in a battle that put music listeners and makers at the center of a legislative struggle. Legislators had been the ones to intervene and save webcasting, under pressure from listener constituents and even musicians. Pandora founder Tim Westergren told CDM how dire a failure on these rates could be.

What the deal means is that we can return to the rosier vision of how online streaming could help promote indie musicians, something Westergren put eloquently in a 2007 interview with CDM. But looking back at Tim’s arguments from two years ago, a central tenant was fairness — meaning big, corporate radio broadcasters really ought to face a level playing field and start paying musical rights owners. (Public radio in the US, by contrast, is likely to benefit from the online deal, as public stations increasingly rely upon wider online distribution and even pledges from loyal online listeners. Moved from Omaha to Montreal? You can still listen to your favorite station.)

There are signs that not only have online music pirates moved to download stores like iTunes, eMusic, and Amazon, but to streaming solutions, as well. In one of a number of recent studies, for instance, the UK is showing online file sharing down markedly as legal streaming grows. To me, the most interesting thing about this is that it disproves a long-held industry assumption that habits, once set, wouldn’t change. For better or worse, the online world doesn’t seem to work that way.

Meanwhile, the lines between “indie” and “major” are blurring quickly. Again, Ars Technica:

Universal/TuneCore deal opens major doors for indie artists

The surprise there is that it’s not so much about distributing Universal artists exclusively – online artist services firm TuneCore is now opening its membership base to Universal and visa versa, so that Universal can discover new artists and artists get licensing and mastering services from UMG without the need for exclusive contracts with the major label. In fact, if there’s one word that sums up the future of music deals, “non-exclusivity” seems to be it.

(clarification) As kj notes in comments, I think saying this opens “major doors” is a bit of a stretch. It opens a small door at a major. But on the other hand, the idea of a label becoming an open service shop for artists – for offering, say, mastering for a fee as part of their revenue – is new and, provided it actually works, interesting. And it’s clearly part of a larger trend.

But I think the best news is the spread of unusual means of musical distribution. Eliot Van Buskirk writes a round-up of favorites for Wired Magazine. (And yes, while top ten lists are overused, they’re brilliantly appropriate when you actually have ten really awesome things.)

10 Weird Ways to Distribute Music

From soup cans to music boxes to iPhone apps, there are a few underlying trends in there. One is experimentation in the delivery mechanism itself (including 8-tracks and cassettes, really). The other is in what you can do with the media, as with the interactive remixable iTunes album, or even art books that extend what an album actually is.

As these spread, though, I have to optimistically think that this is more than desperation or brief novelty. Distribution media haven’t just shifted from one popular form to another; they’ve imploded. We’re rapidly approaching a “minority majority” situation in which no one format dominates the others. We haven’t gone from the compact cassette to the CD to the MP3. We’ve gone from the CD to MP3s, MP4s, lossless files for aficionados and lossy streams for kids who love on-demand, vintage formats, physical media and art books and software. Instead of being strange anomalies, these other formats may actually be the new normal. I think in a way the business model doesn’t matter, because, let’s face it, a lot of art making is about losing money. What drives artists is loving sharing the thing they’re making, and finding someone who wants to love it, too. Some people will make a great business model around that, while others won’t.

But if you’re a music lover, we could be facing a new golden age. And if you missed compact cassettes, good news – they’re back.

Trent Reznor posted yesterday that the Beastie Boys’ Ill Communication reissue is “how you sell music today”. As a rebuttal to the usual “that only works for established artists” replies, he’s followed this up with an extended post on what artists who haven’t reached the Beasties or NIN level of profile can do to get established.

NIN’s $300 deluxe edition of Ghosts sold out in under two days, grossing $750,000. The first week combined sales grossed $1.6million, despite being released for free under a Creative Commons license. (Photo CC Nick Humphries)

Having been part of a reasonably high profile band with an album released through the label system, Trent’s post reads like a list of “how I wish it had been”. Every point he makes is absolutely spot on. The article is filled with active verbs. Make. Give. Sell. Share. Release. Start. Engage. Film. This is the crux of how creators succeed in the digital age: They do things. Rather than waiting for someone else to tell them how to make money from a product that can be easily garnered for free, the people who are doing well are making it up as they go along, trying new things. You know… being creative.

As a web developer, director and general creative tech geek, Trent’s closers are especially poignant:

The database you are amassing should not be abused, but used to inform people that are interested in what you do when you have something going on – like a few shows, or a tour, or a new record, or a webcast, etc.
Have your MySpace page, but get a site outside MySpace – it’s dying and reads as cheap / generic. Remove all Flash from your website. Remove all stupid intros and load-times. MAKE IT SIMPLE TO NAVIGATE AND EASY TO FIND AND HEAR MUSIC (but don’t autoplay). Constantly update your site with content – pictures, blogs, whatever. Give people a reason to return to your site all the time. Put up a bulletin board and start a community. Engage your fans (with caution!) Make cheap videos. Film yourself talking. Play shows. Make interesting things. Get a Twitter account. Be interesting. Be real. Submit your music to blogs that may be interested. NEVER CHASE TRENDS. Utilize the multitude of tools available to you for very little cost of any – Flickr / YouTube / Vimeo / SoundCloud / Twitter etc.

Check out the rest of the article.

For digital artists, a lot of the web and technological networking comes easier than to rock bands. When a laptop is part of your rig, hopefully you understand computers better than someone who exclusively hits their instrument with sticks (SPD20s aside), because you use the computer for music regularly. Ed.: This is a simple fact – if you’re a digital artist, regardless of your instrument, you spend more time behind the screen than people who are conventional instruments – so you should have no excuse for making the most of that technology once the production and performance phase are done. -PK We’re also in the middle of a huge mobile web expansion phase. Now that everyone has web enabled computers in their pockets, what you can do while you’re out there playing shows is getting better and better; I just spent the evening configuring an online store which can be administered via its own iPhone app. If this had been available two years ago, a whole lot more CD orders would have been delivered on time.

Giving some solid metrics to bolster Trent’s advice, Michael Masnick’s (founder of Techdirt) recent presentation at the NARM 2009 conference is truly fantastic.

NARM 2009 State Of The Industry: Michael Masnick from NARM on Vimeo.

The presentation is quite long at 31 minutes, but he breaks it up with 515 slides, so it feels punchy. It expands on many of the points Trent makes, and touches on some themes we’ve been interested in here at CDM. Interestingly, he gives some revenue and sales statistics on the Nine Inch Nails “Ghosts” release: $1.6 million gross in the first week, from an album which was released for free under a Creative Commons license.

Having been quite deeply involved in the “old” way of doing things, and having experimented in the last year with faster, cheaper live performance videography and similarly streamlined “studio” production, I feel that I’m replete with the kool aid, and comfortable with a future in which I’m not looking for “a contract”. In fact, this evening I called my bandmate over and convinced him that the album we’re about to record and shoot will be released entirely under a Creative Commons Attribution license. Finished tracks and stems, music videos and source files, animation sprites, live footage, album artwork, and whatever else we create.

I’ve long believed that “free” and “open” is a big part of the future of creative industries. The label system has kept creators and fans at arms length. Last year I was a rightsholder on an album which spent a week in the top 5 sellers on iTunes in Australia. I know nothing about any of the listeners who put it there. Next album release, I want to know all of those fans by name.

CNET has a terrific interview with Rio Caraeff of Universal Music Group’s eLabs. Caraeff is a new breed of record exec – the kind of people we’d actually want running the industry. He’s a software guy and a mobile guy.

UMG digital chief on iTunes, DRM, and Android [CNET Digital Media]

The record industry has clearly seen the light on DRM, so that’s not really news, except that now you can see them saying it in public (and I imagine there has been long-running internal lobbying from those in the industry who got it long ago).

The news for me really what he has to say about the mobile space – his expertise. On iPod, he says what we don’t need is more proprietary alternatives: “I don’t think having more devices and more proprietary software or hardware in the market is the right answer.”

But most encouraging to me is how bullish he is on Google’s Android platform – and the fact that the proof is already available in the numbers available now. It seems the Web world is attracted to whatever is shiny, new, and not-ready-for-primetime, so bloggers last week forgot about Android and moved on to Palm’s (not-shipping) WebOS and Palm pre. That’s all fine and good, and WebOS certainly follows some of the same trends Android does, but let’s not lose focus just yet, right?

Universal worked with Amazon on their integrated Android store, and the results sound very impressive.

…now Amazon will tell you that Android is their single largest source of downloads from any third-party partnership that they’ve ever done. It’s a tremendous amount of consumption that we’re seeing once you integrate it seamlessly into a user experience that’s elegant and easy to use. It’s not 10 clicks. It’s very elegant and easy. We’re starting to see consumption increase significantly.

It’s early days on Android. There’s not that many out there on T-Mobile, but even with the small amount out there, they’re downloading and purchasing a ton of music over the air on T-Mobile.

This to me points to some encouraging signs:

Android has an edge for developers. Note that from a development, user experience, and deployment perspective, the Android platform was a big part of this success. You couldn’t do an Amazon store on the iPhone.

Android has legs. None of that would be meaningful if it weren’t translating to sales. But this says to me that the open Android platform can be a successful outlet, without necessarily needing a middleman like Apple. And it suggests some positive things for, say, developers selling software (or musicians doing weird, 99-cent generative music games) on the platform.

Mobile sales in general could be big for music. The whole problem for the record industry isn’t all that complicated: it’s that one medium (CDs) has been shrinking in dollar figures faster than its successor (online music) has been growing. So the industry just needs new growth. It’s encouraging to see that that could mean just selling music at reasonable prices, free of DRM. That’s a huge change from the previous plan, which appeared to be slicing 30 seconds out of a track, calling it a “ringtone,” and charging more than you would for a single.

There’s plenty worth checking out in the whole story. But this does make me feel even more excited about Android and what’s possible. The Amazon store is amazing: you buy and download tracks over the air, and then bring them back to your machine. Sure, you can do that with iTunes, and finally iTunes doesn’t have DRM on its tracks. But Amazon was able to come onto the device as a third party (working with HTC, Google, and TMobile). With Apple, the only way to get tracks back on your computer is to go through their iTunes conduit. With Amazon, you can do whatever you like. And the underlying stacks that enable the app are all open source, from the APIs to the developer tools. That’s a pretty marked difference.

Having a different mechanism for selling music could also mean that the UMG of tomorrow is very different from the UMG of yesterday. It’s certainly encouraging to think there are people at the company who see technology in the way a lot of the rest of us do. But this could also mean new opportunities for independent artists and smaller labels – and greater opportunities for everyone making music.

We’ll be looking more at the Android platform in 2009, and other trends in mobile. Now I just need to get myself a G1.

When should you tune in tomorrow to get the news? Thanks to the fact that some folks do send CDM press releases under embargo, some big announcements should happen at:

• Thursday, 1:00pm Eastern Time: This is the opening of the NAMM show, so it’s when many embargoes are lifted. Any really big stories that deserve it will get immediately published then.
• Thursday, 3:30pm Eastern Time: I have some specific stories that are held for this specific time that will definitely be published then.
• Over the weekend and later: Because I want to actually cover less but do it in more detail, expect other news and analysis over the coming days.
• The rest of 2009: Some announcements simply don’t make NAMM. We expect some news to come out of this year’s Messe conference in Germany. I expect in the near future trade shows in China will start breaking news. And most importantly, a lot of news doesn’t happen at trade shows. I’m personally excited by the stuff we’ll be seeing at things like our Handmade Music event coming from DIYers.

Some NAMM news is already leaking out today, and on top of that I’m watching as sites are posting press releases that are clearly under embargo. Now, that might seem a good way to get a jump on the news, except it’s not.

• Some big stories aren’t leaking. This is pretty absurd – I’m seeing forums leaking information and then assuming that they know all there is to know. They don’t. Forums will always do this, and that’s fine – but you can still be realistic. Also, some of the websites that are breaking embargoes on press releases clearly don’t have all the press releases – maybe because press folks aren’t sending them out because they know they’ll get published immediately.
• Press releases don’t tell you what you need to know. To be able to really cover a story, you need to understand what a press release says, not simply copy and paste. I love the 24-hour news cycle in the blogosphere, but we also need to be able to investigate and ask questions. So, you can either see stuff the minute it’s announced, or wait a little longer and get some analysis. And as you know, I always get everything totally right often get corrected by smart readers who know more than I do, which is the real point of Web publishing.
• If we don’t break embargoes, we get advance information. CDM doesn’t break embargoes or leak stories – that’s the policy. For one thing, there’s not really much point. If Steinberg had assembled a puppy farm and was experimenting on them to create the next version of Cubase, that would be something that would require journalism that reported on the story immediately. But with new tools, we actually want to have more time with them, so that means respecting embargoes and privacy so that we can talk in more detail later and really understand the technology.

Incidentally, that’s not to say I don’t comment on rumors – I just only do it when I don’t know anything, and I label it as such.

Okay, enough of the rant.

Let us know if you hear anything you think we should care about, as we really do rely on you. And do stay tuned.

Much of the debate online about the record industry has devolved – with quite a lot of help from the misguided message of the US trade group, the RIAA – into a debate about piracy. It winds up being something dumb, like, “Piracy is evil!” “No, piracy is great!” Wow, this should be a really insightful discussion – I can’t wait!

Piracy is, pure and simple, “loss prevention.” People often laugh off the comparison between piracy and things like shoplifting. But I think that comparison isn’t made enough – because if it were made, and made fairly, the record industry might remember what it’s business actually is. It’s business is selling something. If that becomes secondary to preventing theft, they cease to be a real business. Whether you’re scared of piracy or think it’s harmless, you ought to be able to agree. This ignorance is a disease that has threatened at times to infect music software creators, too – and I think the same issues apply.

The counter-argument even from some RIAA critics is that record sales don’t matter to musicians, or that sales of recordings is doomed. Those are interesting arguments. They just don’t have actual facts to back them up. With musicians selling music direct and working out new means of distribution with labels, the former is silly. Sure, not all musicians rely on music sales – some of us rely on things like teaching guitar lessons or (ahem) writing about music technology. But many other artists do think about selling music. Digital tech means that for bands like Sound Tribe Sector 9, they can even tie this to lucrative live performance. (STS9 now earns lots of revenue by selling downloads of live performances to concertgoers. I’m sure others could follow; I just happen to talk to the STS9 guys and know this.)  And most importantly, with explosive growth in mobile music, online music downloads, streaming music, Internet radio, terrestrial digital radio, music communities, the recording as a business is here to stay, whether you like it or not.

Not that you’d know any of this listening to the RIAA, because the only issue they want to talk about is piracy – not the actual sales one would associate with an “industry.” So why is no one calling foul – not only because the RIAA pursues abusive legal intimidation, but because they seem unable to act in their own self interest as an industry? Isn’t that a little … odd?

The problem is, music recording is often treated differently from other businesses; we view it in a vacuum, without precedent or comparison.

Have a quick look at the RIAA’s website:

http://riaa.org/

Today, on December 16, 2008, the top headline is about an anti-piracy bill. The top blurb is about parents and teachers on digital downloading. Then we have some sales statistics, news on anti-piracy items, a whole section on piracy identification, piracy and parents, some links in the nav bar on piracy … you get the message. In fact, the only thing that would tell you that this is the Recording Industry Association of America and not the Association of Intellectual Property Lobbyists and Lawyers is some proud stats on “gold and platinum records.”

So, the only thing that would make me want to go into the record business is info on their top-selling records. Except, of course, that’s equally ironic and backwards-looking. We know that generally the new world market for music is less interested in explosive singles – there’s more selection, more variety in genres, more different kinds of people listening. The RIAA’s homepage is currently celebrating “50 Years of Gold Records.” That looks back to an era when American music tastes didn’t cross over between white and black artists. Some of those albums were wonderful, but with deep racial divides and uniform tastes, it was hardly a golden age. In 2008, the US has elected an African-American President who listens to music on his iPod. But never mind business growth and business potential: that wouldn’t fit into the RIAA’s victimization of itself. If the RIAA can portray itself as a failing industry, they have extra ammunition in what seems to be their one and only priority: fighting online piracy. If actual sales go down the tubes in the process, so be it. (In fairness, sometimes the RIAA does seem to be seriously deluded in their arbitrary nostalgia. Exhibit A: The CD: A Better Value Than Ever is one of their key statistics papers. Where’s “Online: A Massive New Market”?)

To see just how absurd this is, let’s compare another industry that’s having tough times – the National Retail Federation. They’re certainly in an unenviable place, with consumer confidence in the US at historic lows. And retailers get hit hard by theft – harder, you might argue, than the music industry. If you own a store, you get hit by shoplifting; it’s a fact of life. That’s real, material goods walking out the door, goods the retailer can’t replace, in an industry known for its razor-thin margins. Look at retail theft, and you might be glad to be in the record industry, selling online goods that won’t be irrevocably damaged by digital theft and that can have substantial profit margins and loyal, passionate fans. Oh, by the way: music has been historically more recession-proof than a lot of segments of retail.

If the NRF behaved like the RIAA, we’d see nothing but anti-shoplifting info. We’d see educational flyers warning parents about the dangers of their kids stealing candy bars, extensive statistics on loss, new lobbying for tough, one-strike-you’re-out prison sentences, and so on. Of course, that isn’t the priority of the site. The NRF lobbies, too, but on a range of issues. They cover “loss prevention” – they’d be nuts not to – but among other issues, like merchandising, logistics, finance, information technology, marketing. They have events that work on everything from supply chain to credit. Gee, it’s almost like they’re running a real industry. I’m not saying I agree with the positions of retailers. I’m saying they seem to be acting in their own self-interest, which is something you can usually take for granted with a business.

Focusing entirely on loss prevention is something retailers have sometimes done, with disastrous consequences. Tell your staff to stop shoplifting and forget to tell them to concentrate on helping customers buy stuff, and watch what happens. Lock your merchandise behind glass cases and watch what happens. You’ll wind up with safe merchandise: safe, unsold merchandise. The lessons of digital music and DRM clearly point to the same phenomenon.

You can apply the same communications test to other businesses. The American Wind Energy Association, for instance, talks about what’s great about wind energy. They talk about jobs and societal benefits. They lobby, too, to keep wind a priority. Now, wind energy has nothing to do with music, but that’s precisely the point, too. Why can’t you substitute the word “music” in the above sentences? Regardless of the nature of the business, this is what a business trade group ought to be doing.

In fact, even other music advocacy groups seem to get it when the RIAA doesn’t. Performing rights groups BMI and ASCAP have certainly lobbied against piracy, but it hasn’t stopped them from doing anything else. Check out the ASCAP and BMI websites and you’ll see musicians, seminars on music business, actual music. What a novel concept.

There’s a lot of damage to undo, and it has nothing to do with the debate on piracy. Check out reader comments here, blog entries around the Web, and popular press outlets. The narrative about music: music purchasing is dead. Music online has no value. The music industry is on the verge of collapse.

Guess where these narratives came from? You’ve got it: direct from the RIAA. People passed over the scare tactics the RIAA tried to peddle on piracy, and bought into their scare tactics on the industry as a whole. The RIAA has done massive, long-term damage to the image of music as a business. They’ve devalued the work that we as musicians do. They’ve squandered massive business opportunities online, and made an uphill battle for the people trying to take advantage of those opportunities independently.

I respect people who want culture to be free and shared. Music as a business should never be the only view of music, because it’s a cultural activity, with deep, personal, emotional value that can never be quantified. But for the same reason, I value any discussion that helps protect a business that promotes that cultural activity. We live in a world with grocery bills; in the US, we pay for health insurance. Damaging the business is dangerous to musical activity, period. The RIAA and its members are certainly entitled to have opinions about policy and law as they relate to piracy. But when those groups focus on those issues in the exclusion of all else, they do damage to the industry as a whole – including musicians who have nothing to do with them or their member labels. So it’s time to really start focusing on these other, challenging issues. Each time someone says that business is doomed, even if they’re doing so in the context of being critical of the RIAA, they’re unknowingly let the RIAA set the agenda for discussion. And I think it’s long past time for a more productive agenda.

I look forward to the RIAA’s one valuable commodity: its yearly sales figures. They’ve shown massive growth in downloaded and streamed digital formats that suggest that all of this is simply a transition from one format to another. (Furthering that argument, they even show growth in odd places, like vinyl records last year!) It’s purely a business issue. But it’s about time “industry” and “business” got mentioned together again. Stay tuned.

Discuss. (I’ve said enough.)

What happens when people targeted by record industry legal intimidation fight back? What if they not only defend themselves, but go on the offensive, counterclaiming the industry is abusing the law and legal process? What if courts decide the industry really can’t hijack an unrelated PC belonging to someone’s Mom and Dad? That’s what’s at stake in a case in Rhode Island.

Now, the exciting conclusion to the face-off between record industry lawyers and a class full of Harvard Law students and their professor. Well – sort of. This is legal drama we’re talking, so it may be neither exciting nor conclusive.

Our Story So Far

The case was this: as part of ongoing threats of litigation, Rhode Island residents Arthur and Judie Tenenbaum faced legal pressure from the US record industry group, the RIAA, on behalf of their son, Joel, a grad student at Boston University. Joel is accused of sharing music files online. 7 songs allegedly shared translates to $1 million in damages, according to the industry’s arithmetic, but it may not be the damages that are really what’s in question.

Here’s where things get a little weird. The hearing yesterday in Rhode Island federal court addressed a motion by the record industry to force Joel’s parents to produce their home computer, so that the computer could be inspected for evidence of illegal file sharing.  That would have made no sense, given that Joel is off at grad school, Arthur and Judie didn’t own the computer when Joel lived with them, and even the RIAA isn’t alleging that piracy took place on the computer. (You could place his uncle under house arrest and seize his parakeet as a witness, too, if you’re going to get that tangential to the case at hand.)

The hearing yesterday was rescheduled to January 6, however, because the Tenenbaum’s lead counsel – Professor Charles Nesson from Harvard Law School – was not admitted to argue in a Rhode Island court. (There’s a legal question there; I don’t think it’s just that they hate the Red Sox.)

The industry responded with a motion to prohibit any use of the parents’ computer until January 6. (Yes, Merry Christmas to you, too, RIAA.) I’m not sure what that would have accomplished, but the judge denied their request.

So, bottom line: the Tenenbaums get to hang onto their computer until January 6, and we find out what happens later.

You can expect a good fight, however. The Harvard team aren’t just defending Joel: they have a counterclaim. The basic argument: the RIAA isn’t really recovering compensation. The goal, says the countersuit, is simply to make young people, parents, and schools afraid of computer use. They are looking for damages from the RIAA, claiming that, as a criminal statute, the “Digital Theft Deterrence Act of 1999” the RIAA is using as its weapon deserves a trial by jury – and in the meantime, the RIAA has abused the law and the civil process of the courts.

Coverage

Some reading on the story from elsewhere:

Legal Jujitsu in a File-Sharing Copyright Case [NY Times]

Billion Dollar Charlie vs. the RIAA [Boston Globe]

RIAA Vs. Web 2.0? Social Media and Litigation [Slashdot, on the use of social media to combat the RIAA]

Boston Illegal: Will the RIAA finally get what it deserves? [Robert Cringley editorial for InfoWorld]

Judge postpones hearing in key RIAA lawsuit [CNET News]

And for an extra oddity:

RIAA May Be Violating a Court Order In California [Slashdot]

What This is About

Before we get another heated discussion going, let’s consider what this case is really about. Forget for a second the record industry’s business, the real issues around piracy and the value of music online. Ultimately, this is simply the case of an industry group that has been allowed to run wild, using legal intimidation and excessive, heavy-headed techniques. Going after Mom and Dad’s unrelated PC is clearly an unnecessary invasion of privacy.

The problem is, the strategy only works until someone protests. The assumption is that applying ample legal pressure gets more would-be defendants to settle out of court, saving a real legal test and helping the RIAA demonstrate that it’s doing something. Critics have said just that for years, but this could be a high-profile repudiation of these techniques if the Harvard team can move forward.

And as for the larger issues about the industry and its business, well, what about that? The RIAA’s response to criticism, even from members and music content owners, has been that the ends justify the means. But what, exactly, is the group accomplishing on behalf of their member businesses? Is their case really so weak that they have to resort to intimidation?

Many musicians are indeed opposed to piracy – and also believe the value of music, and the relationship listeners can have with artists and labels, can protect music as a business. Music creators are aware how much income comes from relationships – from freelance work, from t-shirt sales, from teaching, from live shows, and the many ways artists and creators support themselves. The single-minded, obsessive focus on piracy that would drive the RIAA to these tactics in the exclusion of all else seems to come from some alternate dimension.

Of course, this kind of nonsense only short-circuits those discussions. And from a legal perspective, the central question remains: is what the industry doing even appropriate to the law and legal process. We’ll follow this one as it develops.

Music DRM may be a thing of the past, online sales may be growing, but that doesn’t mean the U.S. record industry has missed a beat in its ongoing legal and lobbying campaign against music piracy online.

The latest battle starts today in Rhode Island federal court. The difference this time: the RIAA and record companies will have to face a Harvard Law prof and his students. Prof. Charles Nesson and his team allege the industry is abusing the court system, unfairly making “examples” out of the people they’re suing, and invading privacy.

Whatever your feelings about the righteousness of litigation as a deterrent to piracy, the case in particular gets pretty strange. Rhode Island residents Arthur and Judie Tenenbaum face having their home computer seized as evidence, despite the fact that even the industry legal team doesn’t contend this particular computer was used for the alleged downloading. The couple’s son faces a stunning $1 million+ in possible damages, but only allegedly shared seven songs on Kazaa – and the couple didn’t even own the computer when their son lived with them.

The team will be up for interviews, so I’ll try to follow up – let us know if you have questions for them. More here:

RIAA v. Joel Tenenbaum @ the blog CyberOne: Law in the Court of Public Opinion [Harvard Law]

Updated: Early word is that the hearing has been rescheduled, Prof. Nesson isn’t admitted to argue in a Rhode Island court, and the judge (rightfully) denied the RIAA motion to look at Joel Tenenbaum’s parents’ computer, since it wasn’t involved. More official details forthcoming.

In other news, Jim Griffin of Warner Music Group continues to push a plan to offer a blanket license to campuses to avoid litigation by allowing students to pay a voluntary monthly fee to download music from file sharing services. It’s not entirely clear to me why this scheme continues to attack such ire online. Ars Technica rightfully says hold the kneejerk responses and wait for the details. There’s certainly a precedent: clubs, bars, concert venues, and the like already pay blanket license fees for performance rights, and the revenue is ultimately distributed to the people who own the work (think publishers and writers). That’s not to say the plan isn’t rife with potential problems, and it seems to me could even endanger efforts to encourage things like Creative Commons licensing. But without more details, it’s tough to criticize the idea without taking into account both its pitfalls and potential.

One thing everyone ought to be able to agree on, perhaps even some of the beleaguered record labels: ongoing litigation has been ugly and unproductive, and still doesn’t solve the underlying problem. With broad wireless Internet access on the horizon, even if I were to play devil’s advocate and assume I was an RIAA member wanting to stop campus sharing, it seems just scaring campuses into blocking these services isn’t really a solution.

And as artists, our primary concern ought to be that these responses aren’t doing what we most desperately need: establishing a real business model and promotional possibilities for emerging distribution online.

Last week, Apple rejected a podcast management app because, to paraphrase Apple’s own policy, they want iTunes handling all podcasts for you and not any third-party apps. (Officially, “Since Podcaster assists in the distribution of podcasts, it duplicates the functionality of the Podcast section of iTunes.”)

Over the past few days, that’s generated plenty of chatter on the blogosphere, mostly centering around technical and philosophical discussions of the way Apple manages its developer relations and application approval.

But let’s cut right to the chase. This time, it’s not about Apple’s App Store or approval process. That’s Apple’s model, and it’s their choice to continue to defend its merits against its competitors. (That’s not to say it hasn’t introduced some limitations; see Gizmodo for a good overview of that.) This is really about iTunes. A discussion of the way Apple is using the dominance of iTunes to control how music and media is consumed is long overdue.

I can think of no better time to have just that conversation. In one week, Apple has sent a strong message. They shipped iTunes 8, which delivered mediocre knock-offs of functionality in other tools, all intended to keep you inside Apple’s ecosystem and away from what should be an increasingly-vibrant set of alternatives. They delivered another iPod touch/iPhone firmware update that still doesn’t deliver basic connectivity to your computer — and, as a result, was hacked within hours by users wanting that functionality. And they then blocked a third-party app that delivered something they hadn’t, in order to protect their own more limited solution — the opposite of what building a developer platform is supposed to be about.

What makes this all so frustrating is they still make the best mobile music and video player in the world. So why are they clamping that player into a chastity belt?

It’s About Distribution

Ever since the launch of Napster and file sharing services, digital distribution has been at the forefront of conversations about digital media — and rightfully so. Apple did provide the first successful business model that allowed digital distribution to make money for producers, and for that they should be congratulated. But part of the dream of digital distribution was decentralization — a level playing field, without major labels and retail outlets tilted to big hits while ignoring niche interests and independent artists. iTunes, meanwhile, rose to be the single dominant player and store, coupled with the dominant mobile hardware. That’s a situation that was always ripe for abuse.

It’s interesting to re-read Steve Jobs’ “Thoughts on Music” essay from February 2007. At the time, many held it up as a bold statement by Apple advocating an end to DRM. Now, it’s tough to read it that way. Most of the “essay” is spent defending Apple for its integration of iPod and iTunes, and saying Apple wasn’t really creating “lock-in” to its store. Here’s my favorite part:

“Some have argued that once a consumer purchases a body of music from one of the proprietary music stores, they are forever locked into only using music players from that one company… It’s hard to believe that just 3% of the music on the average iPod is enough to lock users into buying only iPods in the future. And since 97% of the music on the average iPod was not purchased from the iTunes store, iPod users are clearly not locked into the iTunes store to acquire their music.”

You’ll notice Jobs never answered the original question, which was interoperability. He just changed the subject — effectively, he argued, interoperability beyond the MP3 format wasn’t necessary, and specifically interoperability of DRM wasn’t necessary. He also didn’t cover the question of interoperability of video formats. That number is likely to be far higher than 3%, even assuming as Jobs does that customers use all their storage capacity.

Jobs did convince major labels to drop DRM — but not to please him. On the contrary, the aggressive policy of releasing DRM-free music by labels seems to be an admission that the labels themselves were (rightfully) concerned about the business implications of Apple becoming their only vendor. They had to remove DRM in order to make their music compatible with iTunes and iPod.

More telling is what Apple chose to do next.

“The labels made us do it” argument about FairPlay and DRM doesn’t make any sense, because the same technology has resurfaced in the App Store. You’ll find that apps downloaded via iTunes — remarkably, even free apps — require authorization from an iTunes account, just like DRM-encoded music once had. That’s to say nothing of the company’s apparent plans to add DRM to your clothes.

Those protections may well protect application developers from piracy, so to Apple’s credit, FairPlay could help protect developers. (That doesn’t explain why free apps are included, of course, nor does it address the lack of demo downloads, but I’ll give credit where it’s due.)

What’s more troubling is the other sets of restrictions Apple has placed on iTunes and iPod/iPhone media consumption and playback. Let’s call it the iTunes Lock-Down.

What iTunes and iPod-iPhone Do Right

Before looking at the chains Apple has imposed, it’s important to note that they’ve done some really important things for digital creators. And you can only understand the iPod touch and iPhone at their worst if you look at them at their best:

• iTunes is a vital distribution outlet: I have nothing against the iTunes store. It works well, it’s shown healthy growth, and its integration clearly provides a set of opportunities for getting your content out there.
• iPod/iPhone is a damned good media player: People don’t buy these things because they’re trend-following sheep. The success of Apple’s devices really is because they’re well designed — not only on their shiny outsides, but how well they navigate and play media, which is the point.
• Apps are awesome: Need a reason to buy the iPod touch over, say, a Microsoft Zune or Samsung or SanDisk or other media player? Fire up an app like Last.fm, which beautifully streams song recommendations. Note, of course, this is because they go outside what Apple themselves provide. That’s the whole point.

Computer Says No: iTunes Lock-Out

Let’s forget the philosophy or the politics here for a second. Those are interesting discussions, but most people buy an iPod or iPhone to use the thing. And we can avoid deeper, more abstract issues by looking solely at what the device does.

In this case, it’s about what you can’t do — not for technical reasons, but because Apple has decided to block certain functionality. An iPod touch, in particular, is basically a tiny computer, a flash drive, a screen, and a headphone jack. It’s a USB flash drive — something that, since the very creation of USB, normally allowed connecting to a computer. Then it’s got an Internet Wi-Fi connection, which under normal circumstances should let you connect to the Internet and do things. iTunes is a software player that manages media files on your hard drive. The files you’re playing, from audio to video to RSS-delivered audio and video (podcasts) should be playable anywhere.

Here’s where stuff starts to go wrong.

• You can’t manage your iPod or iPhone using anything other than iTunes. This is a big deal, and I think it’s clear why when you try to use iTunes 8. Other players have continued to grow and develop while iTunes has not. Look at the open-source, Firefox-based, tri-platform Songbird, which integrates web browsing for music and other unique features. Look at Media Monkey, foobar2000, and Winamp on Windows. Look at Rhythmbox, Amorak, and Banshee on Linux. Any of these players ought to be able to use the iPod/iPhone as a normal storage device; up until firmware 2.x, many could. But the 2.x firmware devices are the most locked-down Apple has ever made. That means you’ve got a drive plugged into your computer that you can’t actually use without approved software.
• You can’t manage files. Happily, some third-party apps have stepped in here, with over-the-air tools for file sync, transfer, viewing, and navigation. On the other hand, it’s unclear why Apple doesn’t use existing built-in mechanisms for connecting drives via USB tethering, or why you have to get an app to do this in the first place. And most importantly, these tools generally won’t work with music files (though I have been researching options for that and will report back — even if it isn’t Apple-sanctioned).
• You can’t install apps outside iTunes. Enough has been said about this. But I’ll make one comparison: the only major equivalent here is the restrictions on running software on game consoles. Even on my Blackberry, I can choose what to install. I’ve never created a freak black hole by doing so.
• Real Genius: The reliance on iTunes ignores the innovation happening on the Web. Apple’s Genius Playlist feature is an embarrassment. Smart recommendation engines have been around for years. They’re a joy to use, and they hook into real communities. The Genius Playlist suggests music extremely poorly, and cynically tries to make you buy more music from iTunes. Web alternatives, ironically, are probably better at that, too, because their recommendations actually work. There’s basic Last.fm compatibility for iTunes, but other computer players have open plug-in architectures iTunes lacks. iTunes, by contrast, seems like an app built before Web communities were popular, perhaps because it was. And to get real Last.fm scrobbling on my iPod touch, I had to jailbreak the iPod. (Highly recommended, by the way, but that only proves my point.)
• The only choice for podcast management is iTunes. This brings us full circle. Now, Apple has done amazing work on their software and hardware. I don’t expect them to do everything I want. But that’s why I love development platforms. Apple did a brilliant job on Mac OS. Sure, installing an app might cause a crash. The UI might not be up to par. But that should be my choice. And by having that choice, third party developers can take things Apple missed and do a better job.

About Those Podcasts…

The podcast issue is especially important, because it impacts distribution, and as a result those who create and consume content (read: us). When done well, when the format is open and flexible, creators and consumers win. If it’s done poorly, we lose.

The iPod touch and iPhone ought to be causing a revolution in podcasting, particularly the consumption of videos. I think some of this potential is stunted by being forced to go through iTunes. Think about it. You’ve got a beautiful device with a beautiful screen that’s completely portable and connects via Wi-Fi and (for the iPhone) mobile networks. Yet to put a podcast on it, you have to:

1. Load iTunes.
2. Get your Apple-proprietary cable.
3. Connect your device by cable to a computer running a copy of iTunes configured for that device.
4. Configure the podcasts you want to hear.
5. Download the podcasts on your computer.
6. Sync — an often painfully-slow process that often involves connecting to the App Store and molasses-like backups.
7. After you’re done listening again, sync again to refresh — and deal with iTunes’ poorly-conceived settings for storing and retaining files.

The whole point of podcast distribution is that it’s done online. It’s bad enough that Apple would miss the boat on this; it’s worse that they’d keep others from doing better.

And Podcaster is just one example. What other Web innovation will be stymied by Apple having a closed platform? Fortunately, I’m not waiting around to find out — for the time being, I’m taking advantage of the superior work being done on hacked and jailbroken platforms. I’ll be talking about how you can do the same on CDM in the coming weeks, as well as watching to see if competitors can get their act together and offer a strong alternative.

Why This Matters

As content creators and publishers, we should be especially concerned. We’re living in an age that promises to be unparalleled in exploring new ways for people to discover and consume the things we make. We need to be able to get that content to people easily, so whether or not something like a podcast works the way it should is important. We also need to have access to tools as they evolve, which means openness matters, too. I’ve discovered all kinds of artists through Last.fm and other new services. If Apple alone had access to my music library for tagging, management, listening, and discovery, that experience would be far less interesting.

And I expect the dimensions of this need will only grow in time. The alternative is stagnation. We’ve already seen what happens when one vendor dominates a business: think Microsoft Office in the 1990s. It’s no accident that people have started calling iTunes the “Outlook” of media. iTunes 8 isn’t a bad release, necessarily, and I’m sure a lot of effort when into it. But when you have a major release that Apple flew press cross-country to demonstrate, you’d expect new features, not poor copies (Genius Sidebar, Album Cover view) of features already in competitive products for years. Most of the slicker changes in iTunes (Cover Flow, the new visualizer) have been acquisitions. But then, Apple shouldn’t have to give us everything — that’s why software choice is so important. I think some people would be more likely to buy a new iPod touch if they knew it wouldn’t refuse to talk to their copy of Winamp.

What Can Be Done?

I do really care about Apple’s devices and the work they’ve done. Microsoft once had to backpedal when they went too far with their platform. I hope it wouldn’t take a legal crisis to get Apple to do the same. After all, Apple has already reversed position on development in general, from saying that applications destroy quality and threaten to bring down mobile networks, to saying web pages count as application development, to finally advocating development as a major selling point of the platform.

Apple could:

1. Ship their own over-the-air podcast management tool in a firmware update, and allow users to subscribe to podcasts from within Safari. After all, these are the technologies Apple championed and has traditionally implemented better than anyone else. There’s no reason Apple can’t again lead on podcasts. (The cynical part of me fears that they’re more interested in selling you entertainment from the iTunes store, but Apple, feel free to prove me wrong.)

2. Provide database access. What’s the point of apps for a media player if the apps can’t adequately complement the media player?

3. Stop blocking third parties just because they interface with the music playback parts of the device or compete with iTunes. These ought to be the best apps available for the platform, as they get to the heart of why people buy Apple mobile devices in the first place (particularly iPod). It’s clear that something like a podcast app isn’t a security or quality threat. And from a business perspective, keeping the media playback experience rich will reward Apple with still more loyal users.

3. Work with Adobe to deliver Flash support. The other major content distribution stream is the Web, and Flash remains important. Now that Flash supports MP4, there’s no reason we shouldn’t see services like Vimeo on the device and not just YouTube.

4. Give us normal drive access. This could let us use innovative new media players and make our iDevices more useful by storing our files on them, out of the box.

Of course, I’m not optimistic about any of these things. So, assuming Apple continues down this path, that leaves the solution to other groups. Developers are doing what they always do: they’re building solutions. Some are likely to turn to the open-source, hacked development chain. Others will look to competitive devices. Desktop computer player makers I hope will work really hard to hack Apple’s devices so they can sync with them. But we’re most dependent on competitors learning from what Apple does well (rich capabilities, well-designed UIs and hardware) while choosing different paths than Apple on lock-in (open development and interoperability instead of the closed Apple path).

Unfortunately, Apple’s best bet for a rival recently, Microsoft, chose to replicate the closed iTunes model with their Zune. Given that even big Zune advocates were quickly blogging about how to get around Microsoft’s restrictions on device access, my guess is that that helped contribute to the Zune’s unpopularity.

Other alternatives lie ahead, though, particularly with Linux and Google Android on the horizon.

What we can do as creators and consumers, though, is easier. For starters, we can stop taking no for an answer. Via Gizmodo, The Joy of Tech comic fought back brilliantly with humor. Bloggers have been vigorously calling Apple on their error on Podcaster. The underground iPhone development crews have done an incredible job of keeping up with hacks, and you can support their efforts by helping the develop and test or by contributing donations. We need advocates for useful tools (OGG codecs and Last.fm scrobbling) and not just pirating Nintendo game ROMs. Obviously, the latter makes a poor argument for the platform.

Certainly, I will continue to discuss alternatives to iTunes for listening to, managing, sharing, and discovering music. Stay tuned.

Further Reading

Apple’s Capricious Rules for iPhone Apps [New York Times]

Things That Podcaster’s Rejection From the App Store Is Not About [Daring Fireball]

And for a laugh, see Gizmodo on Joy Of Tech’s How Apple Picks Which Apps Make It to the App Store

Kyle McDonald writes:

Harry Pyle, a local musician near Albany, New York, released a collection of music called "The Vault" on June 4th. It is comprised of 8 "chapters" with approximately 50 songs each, for a total of 453 songs. He intends this to be a single release, the same way people have traditionally released albums. This must be some kind of record.
Some links:
All the music: http://www.soundclick.com/store/byArtist.cfm?bandID=133254
"Evil is my Middle Name", a favorite: http://www.soundclick.com/Store/digital/01_Shop_Album.cfm?bandID=133254&albumID=24891
MySpace: http://profile.myspace.com/index.cfm?fuseaction=user.viewprofile&friendID=2911507

Some kind of record, indeed.

In all seriousness, digital formats do raise new questions about what our relationship to recorded music feels like, and how it impacts our lives. Roger Daltrey recently got a lot of flak from gaming blogs for criticizing the Rock Band. Now, I certainly disagree with Daltrey that “scrapping of long-play records signaled the death of the music industry.” And it certainly tends in the “get off my lawn, you crazy kids” direction so eloquently articulated by Bob “CDs are small – There’s no stature to it” Dylan.

But I think the kneejerk bloggers didn’t read Daltrey’s whole quote. I was surprised to find I agree with the second part of what he says:

"They’ve destroyed the form, as soon’s it went digital. The CD was a confidence trick," Daltrey said. "It wasn’t just music that people used to buy, it was a total art form. … I think that’s what people like. They like it personal. They like vinyl because if you scratch vinyl, it’ll be scratched, but it’ll be your scratch. It will only be on your record."

He also laments that music is “in the background.” Brian Eno might beg to differ, but I do think it’s important to have a “foreground” experience of music at least some of the time.

Daltrey takes pride in The Who [Associated Press, via CNN.com]

“Destroyed music” is strong, yes, but he is right that some of the physical object, its limitations, and the ability to relate to it in the physical world are missing. Even as a digital advocate, I think you have to figure out what that means, and consider how to deal with it. Of course, the limitations of the format are important, too. Artists from the age of 78s might well argue that the LP destroyed the craft of songwriting.

Of course, it’s still possible to make physical objects and find limitations in the age of digital. The responsibility is simply your own.

And, very likely, 453 songs is probably too much. (But, then, that’s Pyle’s point, right?)