From Katheryn Glass.

After years of attempting to battle illegal downloading of musical tracks on the Internet, the recording industry has taken its case to Washington. The industry backed a bill, which was introduced in the US Senate this fall.  The bill would shut down sites facilitating illegal downloads, and this idea that fans should actually pay for music seems to be gaining traction, both legally and among consumers.

It won’t be easy: only one in five digital music tracks is downloaded legally.

Now, the combination of legal progress, coupled with a shift in listening patterns, appears to support a system where consumers would ultimately pay for the privilege of listening to music. It also begs the question: Is a truce in the battle between fans who support free content, and an industry that wants to monetize music, on the horizon?

Even if it is, the road to harmony will be a long one. The Senate went on recess before the industry’s bill could be voted on, thus prolonging the debate about whether or not legislating curbing file sharing will be able to stop the problem.

“It’s convenient, it’s right there and no one is watching. So what you’re saying is that if somebody is watching you, it will stop you?” said Michael Wood, a former recording artist who’s now a music professor at Algonquin College in Ottawa, Canada. “If they can’t illuminate something so vile as child pornography on the Internet, then where does file sharing fit in?”

Musicians’ core complaint is that the illegal distribution and download of musical tracks violates intellectual property rights.

“We’re a country where manufacturing has gone south, customer service industries have moved abroad, so what do we have left? We have intellectual property,” said Rich Bengloff, president of the American Association of Independent Music, a nonprofit trade organization for independent music labels. “Intellectual property needs to be protected because that’s all we have left to make a living in this country.”

Record labels argue that piracy diverts more money away from the label, which leaves less funding available for the label to spend on the development of new artists.

“You need the sales of your current artists to invest in new artists,” said Jonathan Lamy, senior vice president of communications for the Recording Industry Association of America, a trade organization representing artists.

Finally, there’s the question of whether file-sharing is actually a hindrance or a help to artists, since more downloads — legal or not — help to promote artists’ music further. For all of the difficulties the Internet has caused for the music industry’s traditional business model, many musicians have certainly benefited from the array of websites that help with promotion, merchandising and fan connections.

Nevertheless, momentum seems to be turning against the tide of “free,” Internet content, as musicians, as well as artists from other creative fields such as writers and video producers, seek methods to assist them in monetizing their creativity.

Many fans argue musicians and labels are still making money. Live performances, endorsement deals and merchandise sales are all valid sources of revenue, but the industry says that those revenue sources are not enough to make up for the loss of album sales.

Lamy concedes that legislation isn’t the only solution and that the music industry needs to be able to offer fans a “compelling legal experience” in which to consume music, but he thinks having the ability to shut down illegal sites would go a long way in restoring a stable revenue stream to the industry.

Pay to Play

In the attempt to devise a new strategy for monetizing the music itself, a plethora of new ideas have been bandied about. The Internet has clearly emerged as the designated location where music is, and will continue to be, consumed, and many tech companies have attempted to create a legal model for consumption. Apple, Inc. (NASDAQ:AAPL) and Amazon.com (NASDAQ:AMZN) both have pay-per-download systems, which have succeeded in getting some consumers to pay for their tracks, but have yet to eclipse peer-to-peer downloads.

Pandora, an online streaming radio site which has become immensely popular, hitting 65 million registered users earlier this month, has helped generate revenue for the industry. The site provides exposure for new artists and encourages listeners to pay for songs they like by linking to legal purchasing sites.

Spotify is another music service that looks promising. It exists now in Europe, allowing fans who subscribe to a free service (or low-cost premium option) that permits unlimited playback of favorite songs, stored in a “locker” in the cloud, and also promotes legal purchase and downloads. The company is working to bring the service to the United States, but it is not yet available. MSpot, a similar idea, facilitates web-streaming of Android users’ music once they upload it to the cloud.

Google (NASDAQ:GOOG) is unveiling its own music store, according to a Billboard magazine report last month. Google’s marketplace would offer pay-per-download as well as cloud storage, or a music locker that consumers pay $25 a year to use.

While the industry seems poised to see legal sales of music increase, some say its reluctance to adapt to a changing consumer landscape is still a hurdle, which may further delay the “truce” many fans and artists seek.

Wood, the Algonquin College professor, said when he and a business partner tried to set up a system in Canada that would make digital music available for legal pay-per-download, they ran into difficulties. He said the record companies wanted too much money for the sale of the track.

“They still wanted 73 cents a track and other royalties to be paid on top of that,” Wood said. “You’re trying to negotiate a deal with a bit of an archaic system that’s not willing to bend.”

LimeWire chief executive George Searle agrees that the music industry’s reluctance to change its business model has added difficulty as it tried to combat peer-to-peer sharing.

“If as a community we have achieved nothing else, we’ve come to recognize that containment is a red herring,” Searle said. “We’ve got to do more than stop people from sharing copyrighted files. We’ve got to provide advanced, legal alternatives.”

Speaking at the association’s annual general meeting, Quirk said, “Too often the debate over illegal filesharing is portrayed as an ideological battle, but for us this is a commercial matter. Illegal filesharing is damaging our businesses, both physical and digital, on a daily basis, and the Government needs to tackle it swiftly and decisively in order to protect jobs, businesses and investment.

“First the filesharers targeted the music business and the Government did nothing. Now the filesharers have come again for TV and movies. Unless action is taken the filesharers will come for computer games, books, in fact anything which can be digitised and what will be at stake will be not just the entertainment industry but huge swathes of the UK economy. We need action now.”

Read more of this insanity here at Mi2N

Well now…

I was visiting with my Dad last weekend and thought of an interesting parallel between digital music and encyclopedias.

When I was a kid, my father had a summer job going door to door selling Comptons Encyclopedias.  He would carry a couple of these huge books under his arms and try and get the husband or wife to buy the complete Comptons collection for the kids.  This was big business and my dad made a healthy living during the summer.

Well, over the years the encyclopedia book business began to dry up.  To start it all off, Comptons put their entire encyclopedia library on a CD-ROM and sold it via a new company they formed, called Comptons New Media.  They put the CD-ROM in a chipboard box and sold it at Comp-USA,  Software Etc and other retailers for $200-$300.  It became big business for a while in the early 1990′s, and Comptons New Media flourished and was eventually purchased by the Tribune Co for a lot of dough.

It didn’t take long before some hackers cracked the CD-ROM and then pirated versions of the whole enchilada began making their way into stores and online outlets.  By now, of course, the multi-volume Comptons Encyclopedia Book business had gone the way of the dinosaur, and countless pavement pounding salespeople were no longer going door to door selling encyclopedias – and the entire book business basically went away.  Gone in a matter of a few years.  I think they still sell some to schools somewhere.

The same thing soon happened to Comptons New Media as digital competitors emerged, from Microsoft “Encarta” and others, and soon price competition and the internet gave way to this information moving online for free.

Now we have something called “Wikipedia”.

–

The information contained in the encyclopedias is still being researched and published and edited by now, tens of thousands of people who put it online in a living, dynamic format.  By and large, no one is getting directly paid to do this work, yet no-one can dispute the fact that society in general is benefiting from Wikipedia and other community-based information resources.  You might even notice that there is a lot more information being produced and updated and cross referenced than ever before.  This is all without the infrastructure of the past (ie Comptons) being in-place anymore, and almost no money changing hands.

Just like Comptons, the record industry digitized all of its assets and put the entire thing out there for the public to enjoy.  And just like Comptons the record industry in now suffering from price erosion, shifting formats and piracy.  They can try and hang in there and bash the problem away with legislation, or they could seriously consider other methods of delivery and renumeration, or they could sell off their remaining assets and shut down.  No matter what, the game they have played is over, caput.  Time to face the music and change.

There are no guarantees in business that things will remain the same.  Indeed, the only real constant is change and businesses that try and hold onto the past will be crushed by their own weight and failure to adapt, or in some cases, to just shut down.  Nothing is forever except change.  People should stop complaining about it and start working on creating a future that benefits us all.

Do I know exactly what that future is going to be?  Of course not.  I wish I could say with certainty but I can’t – for now.  But I think it will look a lot more like wikipedia than comptons encyclopedia sets.

To hear some tell it, file sharing gutted the music industry by encouraging people to gorge themselves on free, illegal content. Indeed, unless Friday’s landmark verdict against The Pirate Bay is overturned, four Swedes will spend a year in jail and owe millions of dollars to entertainment companies for operating a file sharing network.

Nonetheless, sites like The Pirate Bay taught — and continue to teach — valuable lessons to the content industry. Even as music labels and movie studios try to sue peer-to-peer networks out of existence, these same networks have been preparing music labels and movie studios for the emerging social-media world, in which sales form only a small slice of the revenue pie, and what really matters is who likes what, and who pays attention to them.

Facebook, MySpace, imeem, YouTube and other social media sites — which the labels now recognize as a major part of their revenue streams going forward — incorporate several aspects of Napster and other early, rogue file sharing networks: buddy lists, user uploads, filtering content by user, viral marketing, ad-supported content and the potential of mining valuable data. The complete DNA of social media was right there, from the very start of P2P.

And even in the early days, the labels were intrigued by the vast pools of user data available on networks like Napster and Kazaa, although they were reticent to take advantage of it.

“It was more than just stigmatized,” recalled Eric Garland, CEO of BigChampagne, which measures the popularity of media on file sharing networks. “They feared that to even look at or inquire about what was happening in the file sharing universe would somehow compromise their unflinching stance that this was unauthorized.”

But as the initial furor over P2P died down, labels began monitoring file sharing networks through BigChampagne and other services. The data they find there continues to help them in any number of ways, from choosing which leaked song to use as the single, to where a band should tour based on the IP addresses of its fans, to figuring out which artists should perform on the same bill.

The labels beat down Napster, Kazaa, Scour and other P2P networks, and if today’s Pirate Bay verdict stands, they will have beaten four Swedes too. Meanwhile, new ways to share files continue to surface, including private and encrypted networks. And The Pirate Bay developers say mirrors exist in other countries, so no matter what happens in Sweden their site will continue to operate. Besides, The Pirate Bay is only one bit-torrent tracker site.

For some, the offense committed by an enabler like The Pirate Bay — as opposed to the people who actually do upload and share copyright material — may be difficult to grasp. You can also find torrents on several other sites — even on Google’s search engine. And YouTube hosts pirated copyright material, until and unless it is asked to remove it by the owner, because it is unable to programmatically detect which video clips are pirated.

But the difference is that Google, Yahoo and MSN aspire to catalog everything indiscriminately, while services like The Pirate Bay explicitly cater to practitioners of digital piracy — and are proud of it, to boot.

Even as the content industry celebrates another false victory over file sharing, the world is moving on, to cloud-based, on-demand streaming services — some licensed — where you can hear music and watch videos faster and in a more social way than you can with bit torrent. And as content holders look to monetize those networks, P2P networks provide the only useful template, because they share so many characteristics with today’s social-media networks.

Garland, who was there, says tools designed to measure user behavior on file sharing networks led directly to tools that now mine licensed networks like Facebook, imeem, MySpace and YouTube.

When it comes to “where and how people stream, download, watch, listen to, blog about or otherwise make use of or interact with music,” said Garland, “file sharing ended up being the blueprint.”

And it’s a good thing that blueprint was there, from the labels’ and studios’ perspectives, because today’s social-media networks contain even more user data than P2P networks do, and that translates to a bigger opportunity to monetize them through advertising, recommendations and, yes, the occasional sale.

In addition to teaching them how to mine social networks for user data, file sharing taught the content industry that it’s often more efficient to address networks than users. On one hand, this sort of thinking led to The Pirate Bay lawsuit. On the other, we have Choruss, Warner Music Group adviser and digital music guru Jim Griffin’s plan to license universities, then ISPs, to allow subscribers to download and upload as much music as they want for an overall, royalty-like fee.

“Asserting property rights and attempts at control have cost the sound recording industry over a decade of licensing revenue [and trading] control for compensation,” said Griffin during his Digital Music Forum East keynote. “Monetizing friction-free access to music will require swinging to the next vine, and when we make that transition we’ll uncover a bigger music service business that’s been too-long trapped in the too-small body of an old product-based business of control.”

The Choruss plan and the RIAA’s official shift away from suing individuals are acknowledgments on the part of the music industry that file sharing will always be a factor, so it could be simpler — and even beneficial — to lump licensed and unlicensed services together under one monthly fee tacked onto users’ ISP bills. (ESPN and other video networks already do something similar.) Love Choruss or hate it, Griffin would never have come up with this efficient way of addressing social-media consumption if file sharing networks had never existed.

Finally, P2P accelerated the development of products that people want to purchase when free alternatives exist. Whether music sales are competing with The Pirate Bay or imeem, the answer is the same: Sell ads against free content, and try to sell people something they can’t access through the free alternative, be it bonus materials, instant access, concert tickets or whatever. Witness Radiohead’s infamous deluxe box set, the recently launched iTunes pass (essentially an album subscription), Josh Freese’s crazy album extras, or iPhone apps that deliver an artist’s latest creations in near-real time.

File sharing networks forced an industry notoriously set in its ways to acknowledge the enormous power of the internet to distribute music through social channels — if anything, increasing its odds of thriving during the inevitable social-media era.

Lawsuits like this one against The Pirate Bay make sense on the surface. On another level, they’re a funny way of saying, “Thanks.”

From Eliot Van Buskirk and Wired:

It’s been four years since The Future of Music book came out and this radio interview starts with what has changed and what has stayed the same since the book was published. But there’s a twist. At the beginning of the show Jim asked that we not focus on the technology itself, since the book had so much more to offer than just a discussion of technology. Among other things we talk about what’s going on in China currently, the Universal Mobile Device (UMD) and of course, the Music like Water concept.

Listen to the interview here.

Download the MP3 file here.

The science behind behavioral bias towards all-you-can-eat plans in the attached paper “Paying Not to go to the Gym” is pretty interesting. A private equity firm recently used it when projecting how Weight Watchers would fare under a similar shift from pay-per-meeting to subscription.

“Consumers deviate systematically from the optimal contractual choice”, largely due to risk aversion (minimizing variance of payments) and the cognitive dissonance associated with having to make regular transaction-based decisions. Same reasoning so many people pay for all-you-can-eat cell phone plans.”

In other words, the market for gyms fares far better because of the ease of use and simplicity of a flat rate for “all you can work out” pricing, as opposed to individual transactions for each time you go to the gym. People appear be pre-disposed to simplifying their transactional efforts for a known quantity – assuming it delivers what they are looking for – even if it costs far more than the “a la carte” approach.

Around the world content owners and network owners (ISPs) are beginning to try flat-rate schemes in an effort to develop a new model for recorded music.

We have already reported on the digital music flat rate here.

Warner Music is trying to get colleges to test out a new approach.

More on Warner Music and Jim Griffin’s plan here and here.

When you look at iTunes as it exists, it already incorporates this notion of simplicity in it’s ecommerce engine. You enter your payment information once and it is stored, making the next transaction that much easier. One has to wonder if iTunes would be anywhere near as successful (or amazon for that matter) if the user had to enter their credit card for each and every song or book or other product purchased. The mechanics of a flat rate are already partially installed in the iTunes commerce model.

I suggest that we consider an experiment at a premium level, instead of trying to find the lowest possible price point that would work for all consumers. Perhaps the flat rate that covers “all you can eat music” might fly at higher price points than have been envisioned thus far, when properly packaged and positioned. To some people with resources, an unlimited music service, with high quality files, that reliably delivers music whenever you want it – without any legal hassles – may be worth much more that we have imagined. We might make more progress if we started at the top of the pyramid rather than the bottom.

I invite your comments.

Paying Not to go to the Gym

Music in China has essentially always been free. They are now just trying to put structures in place to encourage people to pay for recorded music. Access and Convenience are the keys to his strategy. Lots of lessons to be learned for sure.

“While commercial music consumption has never been more widespread in the known history of man, and with the Internet offering the most capacious vehicle the world has ever seen to disseminate the near infinite body of musical works that exists universally to the greatest number of people, the existing music industry powers-that-be have yet to formulate a system to set this music free – even 10 years after Napster showed the way technologically.

And as elements in the music industry still continue to control the amount of legally accessible music to consumers, and only feed them the acts from which it can make the most money while keeping its vast catalogs in obviously porous vaults, other companies and intermediaries have capitalized on the clarion call to set the music free in all senses of the word. But some of these very companies and intermediaries are themselves simply in the game to enrich themselves via other ancillary services and products which use the pull of music and the accompanying audience, with minimal revenues trickling back to the very creators of the music.

Whilst this tug-of-war continues, one casualty is the increasing reference to music as a commodity,which is a gross misrepresentation of what music really is. Music is food for the soul which creates an emotional attachment with the listener and where it strikes a chord, an intrinsic value in the music is realized.

The industry needs to re-focus on this value in music that many seem to have forgotten, and which others have seemed to have contributed to its devaluation.”

Here is a link to Matthew’s Blog and his presentation from the Transmission Conference I recently attended in Vancouver.

* 14-24 year olds love music – arguably more than any previous generation.

Well I am not quite sure about this one, but lets move on.

* But their consumption of music is changing significantly – the perceived value of sharing, recommendation and copying have all increased.

The world has changed for the digital kids.

* The upshot? Emotional importance does not correlate with spending – especially compared to other entertainment sectors.

* Around 90% of respondents now own an MP3 player. They contain an average of 1770 tracks – half of which have not been paid for.

IMPORTANT TO NOTE – the MP3 player is only about 8 years old.

* 58% have copied music from a friend’s hard drive to their own, and 95% copy music in some way.

* 63% download music using P2P file-sharing networks.

* 42% have allowed P2P users to upload music from their computer. Much of this behaviour is viewed as altruistic.

* 80% of current P2P users would be interested in a legal file-sharing
service – and they would pay for it too.

* The CD is not dead. Even if a legal file-sharing service existed, over 60% say they would continue to buy CDs.

* Money spent on live music exceeds that spent on recorded music

This is all very good news for the music industry.

British Rights Survey

NPD Market Research’s annual survey of Internet users, which is some 80 percent of the population these days, found that 10 percent of the music they acquired last year came from paid downloads. That is a big increase from 7 percent in 2006. But since the number of physical CDs they bought plummeted, the overall share of music they paid for fell to 42 percent from 48 percent.

Most people are getting music from their friends — either burning CDs or ripping digital files. And despite the record industry’s crackdown, there is no reduction in the number of people of peer-to-peer file sharing service.

“The number of people who do peer to peer in 2007 versus 2006 has been stable,” said Russ Crupnick, who runs NPD’s music service. “The number of files taken per users has increased significantly.” This is because of the shift of many users from Limewire to BitTorrent, which makes it easier to download whole albums.

Quite surprising is the continued strength of AM/FM radio. People listen to music on the radio more times per week than any other method. Listening to music on a computer has the third largest number of people, followed by listening on a portable device like an iPod.

The music labels will look at this data and say, “If we just stick with the CD and the Apple model we are in deeper trouble,” Mr. Crupnick said. Yes indeed.

Read more from the New York Times.

–Douglas Merrill, EMI’s newly appointed president of digital

As reported earlier this week, EMI has hired Douglas Merrill from Google to head up its overall digital music group.

“I’m passionate about data,” Merrill said during a phone interview Wednesday with CNET News.com. “For example, there’s a set of data that shows that file sharing is actually good for artists. Not bad for artists. So maybe we shouldn’t be stopping it all the time. I don’t know…I am generally speaking (against suing fans). Obviously, there is piracy that is quite destructive but again I think the data shows that in some cases file sharing might be okay. What we need to do is understand when is it good, when it is not good…Suing fans doesn’t feel like a winning strategy.”

The hiring of Merrill, Googles former CIO, who has no background in music sales, represents an acknowledgment of how important digital distribution and technology is to the future of the music industry, and to EMI in particular. Merrill says he’s all about applying what he learned from Google about the Internet, digital distribution, and innovation. Expect to see EMI experimenting with different business and distribution models.

“You must do experiments and follow the data,” Merrill said. “That’s often hard because we all have intuitions. The problem is our intuitions aren’t always right and Google has shown that over and over again. We’ve had internal discussions about ‘Oh I believe the site should work this way.’ We go into the experiment and we’re wrong. And you have to be willing to say ‘I thought it was X, I was wrong. It was really Y. That has to be OK. You have to be OK failing because most of the things we try won’t work. That’s why it’s called an experiment. Those things are very deep in my soul.”

More specifically, Merrill said he would see whether a Google ad model will work for music. But he’s willing to try music subscriptions and even an ISP fee. Certainly, what came across about what strategies Merrill intends to use is that he’s not married to any one idea.

“I think there is going to be a lot of different models,” Merrill said. “Those are two (subscriptions and ISP fees) you can imagine. I’m not sure that either one of those will be the most dominant model. But they are both interesting. We should try them and see what the data says. Other options will be things like you can imagine supporting music through relevant targeted ads, the Google model. There is a dozen of other things…we should try them all. We should see what the data says and whatever it says, we should follow the data, and follow our users and let them help guide us. We should engage in a broad conversation about art.”

“I think it’s important to figure out where can record labels add value,” Merrill said. “I don’t know the answer. I think Nine Inch Nails’ experiments have been really interesting and enlightening. We need to step back and say what is the process of artist creation and helping fans find what artists create.

“Given that as a system we need to understand how record labels fit in there,” Merrill continued, “I think the Nine Inch Nails’ release of Ghosts experiment was fascinating. What a great problem to have: people are trying different things. If everyone tries the same thing you’ll never learn anything new. Instead we’re in a situation where people are trying things. How cool is that? Some are going to work. Some aren’t going to work. But we need to try them.”

It’s not often that you hear the word “data” come from the mouth of a record company executive. One thing for sure is that Merrill will either have a significant impact on the way that EMI proceeds to develop it’s overall music strategy moving forward, or he will be ejected from the Capital Records building in a few months. The clash of culture and thinking between an ex-Google exec and the traditional music industry mavens will surely be entertaining to watch and learn from.

As my friend Gerd Leonhard has said many times, “when the pain becomes great enough, the labels (if they are still in business) will have to change their path.” Apparently the pain at EMI is considerable. Lets wish Mr. Merrill the best of luck!