A Free and Legal MP3 Manifesto (part one)

A new Fingertips Commentary piece has been posted on the main site. It's called "Got to Do What You Should," is subtitled "A Free and Legal MP3 Manifesto," and comes with the tagline: "Why the mainstream music industry must learn to stop worrying and love the free and legal MP3."

I'll post the essay here in two parts, one today, one tomorrow. The essay is the same here as on the main site, except there are a handful of footnotes accompanying the piece on the Fingertips site, which flesh out the subject at hand.

* * *

Careful followers of Fingertips may have noticed a blip in the normally smooth weekly presentation of free and legal MP3s in December, when a song I featured, Sam Phillips' charming and deep "Sister Rosetta Goes Before Us," was pulled down by the record label before the end of the first week of being spotlighted here.

The record company, Nonesuch, a part of Warner Brothers, delivered an email apology to affected bloggers via Toolshed, the music promotion company with which it was working. Toolshed, you should know, is a digital-savvy company widely known for promoting musicians via the use of, typically, one free and legal MP3. In an effort to sound both contrite and magnanimous, Nonesuch took the blame upon itself, exonerating bloggers of any legal wrongdoing. The problem, said the Nonesuch executive, was that he never realized Toolshed was going to put MP3s online versus streams.

Okay, so he didn't know that a company that pretty much always uses free and legal MP3s to promote its clients was going to use a free and legal MP3 to promote Sam Phillips. Fair enough. But his supposedly generous gesture, absolving bloggers of criminal activity, was irritating for those of us (myself, and at least one other) who only seek to post free and legal MP3s in the first place. It's our stated policy. We do not want to post MP3s that are not free and legal.

Meaning that if a free and not-legal MP3 somehow slips through the cracks, guess what? It's a mistake. The only way it happens--as with the Phillips song--is when the MP3 is presented as free and legal. There was no way for anyone to know it wasn't until, oops!, the very record company who released it decides it didn't really mean to.

I am so happy to know that Nonesuch will see to it that the law will spare me punishment for something that was an unavoidable mistake.

Beyond merely irritating me, this incident illustrates yet again how baffled the major record companies remain when it comes to downloads. The Nonesuch executive could not bring himself to utter the name "MP3" in his explanatory letter; what he said was, "I did not realize these tracks were not streaming." It's like okay, if I don't mention MP3s, they don't exist. To the big boys, there is no difference between free and legal and free and not-legal. The big problem to them is "free." Free does not compute.

This is a common attitude at the upper echelons of the music industry. We all know that they hate illegally posted MP3s, but the truth is they hate legally posted MP3s also, when they're free. Which is why, by and large, the bigger record companies never post them. (Or, when they do--hello, Nonesuch!--it's probably a mistake.)

I'm not surprised about this, of course. When all is said and done, the big labels continue to do what big labels have always done best: burrow their heads deep in the sand when faced with changes to the status quo. Having been dragged against their will into a world in which music exists digitally, without a physical product that needs to be manufactured, they continue to try to make this new world function like the old one.

But everything changes when music is available digitally. Major record company desire notwithstanding, there has not been and there never will be a slick and handy transition from everyone buying physical copies of songs and albums to everyone buying digital copies of songs and albums. The appearance of free digital music has gotten in the middle of all this and has rendered the industry's simplistic ideal an impossibility. The public will never buy everything it used to buy. The question for the music industry is whether it wants to work with this reality or continue to fight it.

I contend that if the industry keeps fighting it, more and more potential revenue (and customers) will be lost. If, on the other hand, the industry finally starts to accept digital reality, which includes the reality of a certain amount of freely distributed music, the record companies might learn how to stop worrying and love the free and legal MP3.

For it is in fact the free and legal MP3 that might yet save the music industry.

So far, of course, the major record companies are nowhere near understanding this. They--along with a surprising number of smaller record companies--cling against all reason and evidence to the belief that "protecting" every single song on an album is somehow the road to increased sales, and they rally around any scheme that seeks to circumvent the reality of downloading altogether. Look no further than the current hyping of unlimited streaming services to see the lengths to which the music industry continues to want to fool itself.

And yet the actual answer to a workable future for record labels and musicians alike is staring everyone in the face. What needs to be done is not complicated. Lord knows I never thought I'd be quoting Ronald Reagan, but what we have here is pretty much a "Mr. Gorbachev, tear down this wall," moment. Only in this case it's more like "Mr. Gorbachev, put a gate in the wall." Because I'm not saying everything has to be free. That's silly and unrealistic. I'm just saying one song has to be free. One song from every album and EP.

So that's it--that's my Free and Legal MP3 Manifesto. It's got one immutable principle: Every album or EP released by anyone, anywhere, should have one easy-to-access free and legal MP3 available. Moving forward, this should be the industry standard.

Note that it doesn't have to be two or three or four free and legal MP3s. Just one free and legally distributed song per album, across the board. And note that I mean one easily accessible free and legal MP3, not a file you can access only after surrendering your email address, or a file so buried beneath Flash-based web tricks that you can't figure out where the download has gone. One accessible link to a free and legal MP3, for every album released.

If this sounds like what is already going on--well, believe me, it's not. Yes, in the particular corner of the independent music world in which Fingertips largely hangs out, many albums automatically come with a free and legal MP3 or two. But you may be surprised how often this is not the case; Nonesuch Records is hardly the only culprit. Plus, there's often a built-in dead end, as bands who get popular often disappear from free-and-legal-MP3-land. The Decemberists, for example, were Fingertips heroes in the site's early years. But then they signed to Capitol Records and that was pretty much the end of the free and legal MP3s. Foolish strategy but it happens all the time.

Equally foolish, alas, is the strategy of over-compensating, of putting everything out there as free and legal MP3s. I appreciate the goodwill involved, but it actually doesn't help anyone. It's kind of a child-like response to the mean and crazy world, an immature coping mechanism: "Okay, if people want to take my stuff anyway, I'll just let them have it, and hope that money will just magically appear because I'm being so nice and giving."

Enough of that. Like President Obama (wow, huh?) just said, it's time to put away childish things. The situation here demands level-headedness; it requires everyone to release the greedy pipedream of blockbuster sales so that we might all see a middle ground in which musicians can earn a living, record companies can thrive (but modestly, not extravagantly), and the music finds its rightful homes in people's hearts (and iPods, or bookshelves, or wherever people most like to keep it).

So: let every album have one free and legal MP3. Other songs must be purchased; the album, if desired, must be purchased as well. If this were the industry standard, if every album had one free and legal MP3, the industry would be in better shape, and the path for future growth clearer.

For five reasons why this is true, come back tomorrow, or continue at the main Fingertips site.