bought culture

bought culture
The recent redux of payola offers a chance to take stock of the cultural failure of commercial music, and a hope for normative change. In other words, the music industry must die.


This week, after settling a law suit with Sony BMG Music, NY's Attorney General Eliot Spitzer released a good deal of unsavory information about the record company's practices of paying radio stations for the label's songs' airplay. The practice of payola is as old timey as the non-monetary contributor to the word, Victrola. The word was coined, some 50 years ago, when Congress investigated bribes paid to disc jockeys to play certain records. And now this:

The state investigation found that Sony BMG, which releases music by acts including Jennifer Lopez, Good Charlotte and Beyonce had provided stations with entertainers for station-affiliated concerts or paid for station equipment or other bills in exchange for having its songs played. It also provided vacations and electronic goods for on-air giveaways in a direct trade for airplay. And it hired independent promoters to funnel money to radio stations.

In addition, the investigation found that the company had tried to distort industry airplay charts - creating the false impression that a song was taking off - by paying stations to play its songs as sponsored advertisements. It has also used interns and hired vendors to call radio stations with requests.

As a result, Mr. Spitzer said in the settlement documents, "Sony BMG and the other record labels present the public with a skewed picture of the country's 'best' and 'most popular' recorded music."

That music corporations act like corporations is unsurprising. To the extent one thinks of music as a commodity, we should expect it to play in the commercial world like anything else in the market economy. As such, the problem of payola resembles false advertising and antitrust issues; wherein a corporate player skews the market so as to unjustifiably taint the consumers' choice in the product. And the solution to the problem is one of leveling the table on which the record companies display their product. Hence, Cliff Doerksen's opinion piece in the Times:

...systems of "bribery" analogous to payola operate in many retail markets. Most supermarket chains, for example, make a chunk of their revenue from "slotting fees," which are the rents that food distributors pay them for shelf space. That such rents are paid says nothing about the flavor or nutritional value of any given item on the shelves. Where music is concerned, however, the concept of payola somehow seems intuitively revolting.

Yet, like it not, every popular song you've ever loved has reached you via some chain of pay-for-play machinations. The technological landscape has changed over time, as have the laws supposedly governing music promotion, but payola has been as constant and pervasive a force as gravity for more than a century now. A rational set of regulations would probably acknowledge this reality and aim at leveling the playing field so that small players can compete against big ones, just as they used to do in the early heyday of rock 'n' roll, when tiny labels like Sun briefly had the likes of RCA on the ropes.

Music, though, is not a commodity. A song is not a box of corn flakes, or a widget--and the norm of treating songs as such kills the value and quality of music as a factor in our human experience and within our culture. Within our current music business context, Doerksen's hopes for a level playing field where indie record labels and major companies compete honestly to shell out their music is well received. But this is to tweak a few trees in a dying forest.

Payola is only a manifestation of the failures in a system of corporate music, wherein band puts together a song and company peddles the song in order to promote the product (cd) that contains the song. And all the players (including indie labels) are guilty of perpetuating the wrong direction in music; because, all record labels rely on the wrong view of song as property.

Yes, you saw this coming...music is suffering the consequences of bad intellectual property law.

My complaint is not that songs on corporate radio stink. Someone, somewhere will always write a song that i regard as crapola, regardless of the fate of payola. Nor do I dismiss the value of popular music, where the joy of a song is in singing along with others that know the song. And I certainly do not secretly wish all radio could become college radio with djs across America trying to out-obscure one another. I have seen the world of "I have a new band you've never heard of," and it is depressing.

Variety is great, as is hearing a new band. But this is not my point. Variety, if seen only in the sense of more competition, and thus a more perfect market, still avoids the problem of music as comodity.

The tough realization that we must come to is this: songs should basically be free. Song-makers should, more or less, not get paid.

And this, from someone that fancies himself a would-be entertainment lawyer?

If we watch/hear music performed, it makes sense for the value of the performance. Similarly, when the performance is caught on tape, it makes sense to pay for that record of the performance, just as a poster is a record of a piece of art; both enable mass reproduction of something that evokes a thing we like. Indeed, recorded music itself can be the art, in that the musician manipulates sounds with studio equipment in order to reach a final artistic end. Well and good, and these things, if we want copies, are sensibly bought and sold.

A song, though, is distinct from the performance (leave aside, for now, electronic music, arrangments, and orchestrial works). Song makers, for the most part, place words over chords. No chord progression arrives out of whole cloth. The argument for long-lasting copyright, then, is that particular words have uniquely been placed over chords. Under current law, that act-putting some words over some chords, can get you the right to keep other people from using those words over those chords for nearly a hundred years. It is this concept of the song that leads to record labels to manage the song, radio stations to sell the song, and the song as commercial commodity.

There is an alternative: a norm where songs are not valued, but performance is. I'm thinking this norm might be similar to a folk music society (in the old sense of the word- such that a song is sort of known, but is played and heard differently amongst different local cultures)...but my thinking on this is fairly immature.

Normative change efforts are afoot. Read the Future of Music. For a broader discussion of intellectual property's role, read Professor Lessig's Archetecture of Innovation.

Roberts

As I prefer hopeful optimism to uninformed distress, I will happily adopt Jeffrey Rosen's opinion as my own. I trust Rosen, the legal affairs writer for TNR, is right about the little we know from Roberts' judicial past. More importantly, Rosen discusses the types of questions the judiciary committee might ask that are important, as opposed to hot button, case specific hoonany.

To begin with, senators should forget about the government briefs Mr. Roberts signed about Roe v. Wade, school prayer and other hot button issues. It's clearly not fair to hold him accountable for defending the George H. W. Bush administration's official positions. After all, that was, at the time, his job.

Instead, the Senate should explore Judge Roberts's judicial philosophy and temperament. He has been on the appellate court for only two years, however, so clues in his judicial record are necessarily sparse.

But based on his record throughout his career, he does not appear to be a rigid Constitutional "originalist" in the tradition of Justices Antonin Scalia and Clarence Thomas. These men believe that the Constitution should be strictly interpreted in light of its original understanding; they are willing (to different degrees) to overturn years of Supreme Court precedents in the name of constitutional fidelity.

Having spent decades arguing before courts rather than sitting on them, John Roberts has never embraced one grand legal theory to the exclusion of all others. On the contrary, he has been trained to cast a wide net in order to reach a convincing result. Inflexible originalism is a theory embraced by academics and crusaders, not practicing lawyers who must persuade judges of different stripes.

...

Perhaps one clue to Judge Roberts's leanings on the force of precedents can be found in the outlook of one of his judicial heroes, Henry Friendly, an appellate judge for whom he became a clerk in 1979. Friendly was famously cautious, a man devoted to incremental rather than radical legal change. It might be illuminating for the senators to ask Judge Roberts what he admired about Friendly, and why.

Another potentially fruitful line of questioning might center on Judge Roberts's views about the scope of Congress's power to regulate the environment and the economy.

Give the entire article a read.

Chait on ideas

Democrats have no new ideas. Rather, they spend all their whiny energy in reactionarily obstructing the earnest and innovative efforts of the Bush administration to solve the challenges America faces.

The above is the well orchestrated and effective rhetorical hoodliwink of the right--used in the age old tactic of promoting a policy without actually talking about the merits of the policy. One's offered solution to a purported problem is more easily accepted if you can convince the mainstream media and it's audience that, well, the other side isn't offering anything (on, say, social security).

And the "no idea" silliness has found its use all along the plank, from the Post's Krauthammer:

What has happened to the Democrats over the past few decades is best captured by the phrase (coined by Kevin Phillips) "reactionary liberalism." Spent of new ideas, they have but one remaining idea: to hang on to the status quo at all costs.

to the GOP bloggers:

Liberals haven't had an original idea in the past 10 years. This is why we don't hear them coming up with any substantive plans for fixing a social security system they agreed was failing in the 90's, why we hear them complain about Bush's response to terrorism, but never hear them offer a solution of their own, why they keep obstructing at every turn, but never promoting their own positive plans for anything.

Watch almost any right-leaning talking head on Sunday morning (or take a glimpse at a WSJ or Economist editorial, and you will fairly predictably hear the refrain in the attempt at working its way, Iraqi-nuclear-weapons-like, into the public's subconscious.

It is, then, with profound relief that I read Jonathan Chait's coverstory article in a recent New Republic, "The Case Against New Ideas." Chait quickly dispenses the demonstrably false Krauthammerian rhetoric:

...the plain fact is that liberals have plenty of new ideas. Troll websites of the Center for American Progress, the Brookings Institution, or the Century Foundation, and you will find them teeming with six- and twelve-point plans for any problem you can imagine: securing loose nuclear weapons, reforming public education, promoting international trade, bolstering the military, and so on. They get churned out by the shelfful providing more material than any presidential administration could hope to enact.

But, the real value of this article is a normative and objective observance. It's one thing that GOPsters utilize the 'no idea' line; it is more disturbing that many Democrats go right along with the flawed thinking. Chait's great point in this piece is the, really, common sense response to Democrats' complaint at Democratic inability to express ideas: you need a soapbox on which to stand.

The truth is that liberal ideas aren't getting any circulation because Democrats are out of power, not vice versa. Not long ago, to take an example almost at random, Senate Democrats held a press conference with James Woolsey to unveil an energy-independence agenda. Not a single major newspaper or network covered it. This isn't because reporters harbor a bias against liberals. It's because they harbor a bias against ideas that stand no chance of being enacted. And so, the vast majority of the time, the press will simply ignore ideas put forth by the minority party.

Apart from this too little appreciated point, Chait notes that both liberals and conservatives have ideas, and spend a great amount of time earnestly thinking of things they feel need improving. The priorities, though, differ. This is why we have parties and civic/political identity--not because one party has new ideas and the other does not; rather, because we identify more with one party's sense of priority.

Here the comparison between right and left is instructive. Liberals are brimming with ideas about reforming health care and taming the deficit. Conservatives have little to say about either of these problems. On the deficit, they are theologically opposed to raising taxes, and they have learned from Newt Gingrich that massive spending cuts are political poison. On health care, controlling costs means controlling waste, yet much of that waste is income for interest groups closely aligned with the Republican Party, such as pharmaceuticals, HMOs, and insurance companies. The GOP, then, may be the party of ideas in the sense that its ideas have slowly and inexorably ground forward over a long period of time like glaciers over the Ice Age landscape. But, if this process leaves them unable to confront the actual problems facing the country, you have to wonder why this is something liberals ought to emulate.

The point here is not that conservatives want for new ideas. It's that the question of which ideas hold sway is a function of which party holds power and what priorities it has. It is certainly true that conservatives have devoted more energy to the question of fundamentally reshaping Social Security. But this difference has nothing to do with who has more or better ideas and everything to do with priorities. Liberals like Columbia University's Jeffrey Sachs have devoted lots of energy to devising plans to end world poverty. Liberals have devoted enormous attention to the problem of global warming, while the Bush administration insists it will kill any action on the topic.

Good article. In the last strain, Chait challenges the popular assumption that ideas drive elections. I agree with him, sadly. Would that they did...and we will try to help in causing such a future. In the meantime, it is the unfortunate truth that presidential races remain a strange mix of popularity contest and irrelevant, transitory tidbits of nothingness.

while the paper's provided a plethora of Court commenting, i played hookie from Rhetoric to, among other things, play with my little cousins.  

been some time

So. A plethora of opinion-spurring happenings over this brief respite from posts. There has been little need to add to the subsequent cacaphony of responses to the final round of SCOTUS opinions, the retirement of, so far, one Justice, and the appointments process...just to address Court commentary. On the London bombings, I have little to say: terrorists have a more or less retarded, or insane, world view- and our effort to stop the occurance of terrorism must incorporate some creative thinking that differes dramatically from old fashioned warfare. I liked this story, also, from Friday's All Things Considered.

Back ot the Court. Opinions, for your reading:

Van Orden v. Perry. Justice Rehnquist writes the majority, joined by Scalia, Thomas, and Kennedy. The opinion finds no establishmnet clause violation in a monument dedicated to the 10 Commandments on the public grounds before the Texas state capitol building. Souter writes, in my mind, the correct dissent. It has the added benefit of being the most colorful writting I've ever seen from this Justice.

Justice Souter wrote the majority opinion in the other 10 Commandments case, McCreary County v. ACLU.

Souter also wrote the majority for the unanimous Court in Grokster.

We have addressed Kelo a bit. It was decided correctly, then distorted in the most irresponsible way by the mainsteam media. We'll return to thta decision again.

The jailed reporters, and their mainstream media employers, also, in my mind, are wrong. While the media can and should enjoy some Constitutional protection for their written ideas, they do not and should not appreciate immunity from all laws as applicable to normal citizens. Protecting sources is great; but everything tangential to journalism cannot be used to expand the scope of a first amendment protection intended, namely, to prevent jailing folks for opinion-making.

Regarding reporters, I agree with the Supreme Court (as they refused to hear the case) and this comment.