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/

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.

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.

Reason number 3,174 why I love Germany: it’s the one nation that has both arcane governmental procedures and the avant-garde musicians to turn them into protest art — with the chops in Pure Data (Max’s open source cousin) to squeeze 70,000+ samples into a tiny space.

Song registration requires citing each sample? No problem — unless you’re an overzealous Pd user. Meet Johannes Kreidler and his work “Product Placement”

product placements (2008)

music piece / performance (”music theater”)

70,200 samples in 33 seconds: nightmare for GERMAN RIAA

If you want to register a song at GEMA (RIAA, ASCAP of Germany) you have to fill in a form for each sample you use, even the tiniest bit. On 12 Sept 08, German Avantgarde musician Johannes Kreidler will —as a live performance event—register a short musical work that contains 70,200 quotations with GEMA using 70,200 forms.

Here he is, causing hilarity with a phone operator for GEMA:

And here’s the actual piece, which sounds as awful (in a good, glitchy way) as you’d expect listening to 70,000 records at once might sound.

I’m not entirely sure what this proves, but now you can say you heard it.

And if this doesn’t mean sampling has jumped the shark, nothing does.

Product Placements Piece Page: English | German

As an addendum to the Last.fm story today, what are the actual royalty rates we’re talking here? They’re not much – precisely the reason musicians will have to get broadcast-style play counts to ever see anything worth counting. For instance, Last.fm makes the comparison with the BBC in the Wired story. The BBC has more hegemony than even a giant US ClearChannel radio station, and I suspect it’d be virtually impossible for an unsigned artist to see that number of plays.

How little? Try $0.0005 per play, as Steve of sighup writes in comments. (I think that’s just radio plays; assuming you get both radio and on-demand plays, you should do a little better – but, still, you might be better off with your CD sales out of your guitar case.) Keep in mind, that’s on top of other revenue, like performance royalties from ASCAP, BMI, and such, but it’s still not much.

Low as that may sound, it’s in the same ballpark as traditional webcasting rates. Prior to the big shake-up over Copyright Royalty Board rates here in the US, its rate was US$0.0008. And that’s only in the US, whereas Last.fm is international – and some of that goes to SoundExchange, and some goes to your label, and … you get the picture.