Interview W/ Brian Zisk, Future Of Music Coalition
By Margee Fagelson [01-03-2001]
[Margee] So, you just happen to wear about 8,000 hats in general. There's got to be fifty different directions and paths that led you to being a part of the coalition.
[Brian] Well, clearly. We love music.
[Margee] Who's 'we'?
[Brian] I and my friends and lots of like-minded folks. There was a group of friends and ex-coworkers whom were a bunch of music fans (as well as Internet stars) and we decided to distribute music on the Internet in a formal, legal manner, and this evolved into a company which became the Green Witch Internet Radio. We eventually became the leaders in developing Open Source Streaming media software (though we sold the company in early 2000). At first, we really thought that music distribution through the net was a technology issue, but it turned out to be even more a legal issue and what we found was that we were all extremely confused. So we went to a California Legal Education panel in early 1999 which featured a lot of great people the founders of Spinner, IUMA, and Mjuice, Chuck D. sharing a microphone with Matt Openheimer of the RIAA, and Ron Sobel was there. Here was the first time we ever met Ron Sobel (about 15 years with ASCAP at the time) and I asked him a very specific question about I can't even remember what it was and (I found out later that) he didn't even understand what I was asking him, but he's really good. So, he turned it around and he said, "You know, what I think you're asking is 'why is it to distribute music on the internet, are you forced to get licenses from 7 or 8 different organizations and you don't even really know who and there's no way to find out who and there's all these problems, like international rights...and basically, no one knows what you have to do?"
That's a big issue; how confusing it is to actually go and do something. For instance, if I wanted to have a site where people could go listen to popular music, whom would I have to go talk to? At this point, it's still very confusing. You say, "Yes, it's the rights holders, the songwriters, and the performers." Okay, who are the rights holders in Estonia for a European Pop single (where an Internet broadcast might legitimately reach)? There are so many complications that it clearly was a legal morass. What we saw was this: we have no problem compensating people, we have no problem compensating the artists, especially. They're the ones who we hold in the highest esteem in regards to the creation of music. But what we saw was that all of these organizations were stonewalling. They didn't understand the evolving situation and they were like, 'Oh, it's a mechanical download' or 'You need to pay a dollar for every download.'
It was not working, financially. What we saw is that the artists weren't being compensated in any way, it all was going through middlemen and intermediating organizations, who weren't necessarily looking out for the artists. We were paying our license fees to ASCAP, BMI and SESAC (some of the more artist-friendly organizations), though it was actually a very small amount of money, which was reasonable since we didn't have nearly as many listeners as a terrestrial radio station. What we were finding is there were these organizations like the RIAA who were telling us, "Yes, you can broadcast the music, but you have to sign a statutory webcast license," which ended up making it really difficult for us to broadcast. From a technical side, the limitations made it very expensive and required a lot of technology development and time. Yet, at the same time, they weren't even collecting money for the artists for anybody! They weren't even collecting money for themselves. They basically said, 'Sign this statutory webcast license' this was in the late fall of 1998 and some day, we will determine, through arbitration, what the rate is. And, what is it now? It's the end of 2000 and the deadline seems no sooner. Now they're talking about well into 2001 before the proceedings get undertaken to determine what the rate is!
The musicians were not having their voice heard, they were not getting a fair shake. Then we started seeing organizations that were record industry organizations, being the people who were approached by the press, in regards to what was in the artists' best interest! It was such hypocrisy! We realized that, and we decided that there had to be some way of getting the artists their share, or allowing the artists to take part in the process of determining what their fair share is or how to control their assets in a way where they are compensated, and that's a really difficult situation.
A large part of why I believe the Napster and the free file-sharing phenomenon boomed to such a large extent is because of DMCA provisions and all the stuff saying you can only play a certain artist a certain number of times in a certain time period and you're not allowed to announce who's coming up, and all of those things. It made the consumer experience which is really what drives the music industry to be lacking. So, what you ended up with was not the options to pay money and do it legally vs. not paying money and doing it illegally, but only that you could not pay money and do it illegally or they could not experience music in the way that they wanted. It became very clear that we had to find ways to compensate the artist. I think everybody's on that page, but at the same time, consumers need to have a positive experience, or they're not going to want to pay the money, which we're hoping will reach the artists.
In any case, it appeared that no one had been sticking up for the musicians in that situation. I had known that something needed to be done so I registered the Future of Music domain name a while back and then all these mailing lists popped up. I was on both the Pho list, as well as Ben Morgan's music tech list. That's where Jenny Toomey and I met, and Walter McDonough and we were talking about what was going on. Not coming from the music industry, I was able to eloquently explain the problems from the technical and economic sides, and I knew that I wanted to make sure that the artists got compensated, but there was really a split between how to do that build a technology, stay within the legal bounds and compensate the artist when the artist products were already available illegally, for free.
[Margee] How did you meet the rest of the crew?
[Brian] My company the Green Witch Internet Radio was acquired by CMGI. So, I went up to Massachusetts to meet with them but also to speak on a panel at Harvard, called 'Signal or Noise' about the future of digital music. While I was there, both Jenny and Kristin Thomas came up and we spent a little time together and we were all talking about what needed to be done, and I also met Walter McDonough at that event. Jenny called a little bit later and said let's do an organization. She was putting her team together. There was Michael Bracy, who she has worked with on the Low Power Radio FM stuff and they've got juice in DC. It's not like you just decide to put on a conference and here comes Orrin Hatch [note from editor: Orrin Hatch will be at the conference] and I give Michael a huge amount of credit for being able to pull in the heads of the NEA and the Copyright Office and all sorts of other interesting D.C. folks. It's just been phenomenal whom he's been able to pull in.
Jenny knows that although I have strong views on the technology that I am in favor of the artist. There really are two separate questions and they get mixed together. How do you prevent the distribution of music without the creators or the rights' holders being compensated? The answer is you can't. At the same time, how do you compensate the artist and the rights' holders is a distinctly different question. Given my impression that there's no way of shutting down the swapping, there still has to be ways to compensate the artist. I'm a firm believer in that so it made a lot of sense to have me as the technology guy because I think they're different issues. The big problem with the record industry trying to get online has been [that] they've been trying to build these systems for preventing the distribution of music without their permission. And as we all know, if you can hear music, you can make a copy of it. The fact that the labels have spent hundreds of millions of dollars in an attempt to defy the laws of physics... Not that they're ignorant, but they're not technologists. They'll think, 'Oh I know this guy at Reciprocal, the digital rights management company, he's worked with all these great people and he's made all this money, he must know what he's talking about.' Or, the other watermarking and DRM solutions companies may have an inside track towards being adapted, when in reality, maybe watermarking solutions are not the answer for what is needed from the musicians point of view.
[Margee] And how did the organization actually come about?
[Brian] We decided that the four of us would work on this project and we were wondering what we should call it. We came up with all these acronyms like makesuremusiciansgetpaid.com. And then I said, "Hey, I've got futureofmusic.org in my back pocket and it was like, okay. That seems to work. Then it was, 'Great, we've got an organization dedicated to helping the musicians. Now what do we do? From there it was all about building the organization and working toward putting on this conference and I think we've done pretty well.
Having Jenny and Michael on the ground at DC is invaluable. Jenny is doing the work of fifteen people not to diminish her efforts by saying it's only fifteen stuff which could not have been done outside of DC. We really felt that all of these people who are looking to pass legislation the congresspeople they are interested in what the artists have to say. So we are facilitating that information exchange.
[Margee] Ah, the conference....
[Brian] We are going to have a couple hundred musicians, we're going to have a bunch of politicians and lawyers and technologists. You get them all in a room and they realize that the person who holds an opposing viewpoint doesn't seem so evil. He's actually a really nice guy and yes I understand that we are on this one path, but you know, the exact opposite side... there is some truth to what everyone is talking about. So, it's really vital to provide a forum where all the interests in building the music industry as well as simultaneously compensating the artists/rights holders come together. We're extremely happy with how the conference is coming together.
[Margee] I interviewed Kristin...
[Brian] Kristin has worked with Jenny for a long time [Tusnami, Simple Machines Records, The Machine] and she's in grad school so it keeps her more than busy. So she popped in and she's been just phenomenal, doing all sorts of stuff, and we also picked up Peter DiCola, whose focus is on the economic theory side which, interestingly enough though I'm a technologist is my love. I feel that to compensate the musicians, you have to go back to the economics of the situation, because that is the study of money, and how money transfers.
[Margee] Peter says it's a labor economics issue, which nobody has really looked at before. It seems to me that outside of Peter everyone has a more similar perspective. Even though you all have different backgrounds, so you can spot things that the others can't spot. The point is that you're all looking at it from an artist-sympathetic-perspective, but Peter has looked at it as a diagnostic problem.
[Brian] I think that might sneak up and end up being the most important work we end up doing on this whole issue. I have a friend Bernard Lietaer who used to be in charge of the currency transfer system at the Belgian National Bank. He believes that currencies have characteristics and what we are faced with in this economy is a currency of scarcity, where the bank issues ten pieces of money and people have to pay back eleven and everybody fights over that lacking piece of money. The characteristics that come out of that are that the people who are most concerned over fighting about the money are the ones who get it. Usually not the musicians. What Bernard feels is that there are ways to do things, such as come up with currencies with abundant as opposed to scarce characteristics. And where I hope to eventually get a Nobel prize in economics is in regards to what I've labeled "Non quantifiable exchanges." Why force a measurement on something, when it benefits more than it costs?
For example, I have a newsletter that goes out to about 10,000 people each and every week. It doesn't matter how many more people get on my list, I add more and more value to the community with each additional reader with essentially no additional cost or effort. It's like...someone releases a song and no one hears it, even if they made money, big deal. But if you release a song and zillions of people are singing it unless it's a really bad song you've added a lot to society.
From an economic model, I believe that we should be able to help monetize even if it's on a fractional basis some percentage of that added value for the musicians. I really do think it is an economic problem. And what usually happens when you're dealing with the economy is that it is advantageous to get your product in as many people's hands as possible. You may say, 'Well, if less people have it, that's a smaller supply, so the price will be higher per unit.' But when you're dealing with such an amazing cultural resource as music, it's like trying to lock up air.
[Margee] With Peter, I posited the thought that free music is being taken mostly by people who otherwise wouldn't buy music (like college kids, who can't afford it at this price point) or by industry people, who get it for free anyway.
[Brian] Or wouldn't buy that particular music. Someone's like, 'Oh God, I need "Blood On the Tracks." This is like the sixth time I've bought "Blood On the Tracks." I usually wouldn't go and download it off of Napster, but if someone really needed me to play it for them and I wasn't near my containerized copy, I might go grab that. Then a question is do I [not] have the right to listen to music that I bought simply because the physical manifestation of it no longer exists? Then it comes back to license agreements. A lot of the business to consumer licensing agreements shouldn't really in my opinion be allowed to stand. If I want to listen to music I've bought...what's the licensing rights on a CD? I don't know. I'm going to go pick up a CD now and look. Ani DiFranco..."Unauthorized duplication is never as good as the real thing." That's the only thing...I see a copyright... But no one looks at that, so I don't think you can say that when people buy a CD that they don't think they're buying the rights to listen to the music they've bought. Those are important questions. Water, for example, you pay a little bit each month for water and yet people go out and buy the equivalent of the CD for water, which is bottled water. People have containerized something that at the time, technology-wise, needed a container to deliver it. But there's no reason to have a container at this point for music, I believe. Now, of course, it's a long-evolving discussion and a long-evolving industry. The record companies, whose business is to package into containers, will strongly disagree. [For them] it's all about the container, all about the CD, formerly about the LP and the 45. And I say, "It's all about the consumer listening to music." At the same time, I also see that the individuals saying, "Music should be free, because of the evil record companies" are not communicating with the record companies' people on an individual basis to realize that they just are doing their job and trying to run a business. Everyone is trying to run a business and there is a dichotomy there, because people who are using Napster are young, when you're supposed to rebel. I rebelled when I was younger, you did, anyone who didn't, I wouldn't trust!
It's a generational thing as well as a generational understanding of the technology and the lack of a need for a physical container. There's absolutely no reason except for hard-drive limitation space that people's music shouldn't live on a hard-drive that my music collection should not be on a hard-drive. And once it's on my hard-drive, as with any data, you can make a copy of it. I can make a copy of it now. I can just rip it off my CD; not rip-off, rip it off.
[Margee] So all these disparate voices?
[Brian] It became vital to have this dialogue with all the areas. And the way Jenny mapped it out, she would be the musician/artist, indie-label person, and she would round up all those people. Then we have Walter, to round up all the legal people thinking on this, and me to round up the technical people. The Coalition is really bringing together such a mixture of people that seems much stronger than if it were just a bunch of lawyers or technologists or musicians isolatedly talking about technology and music. This way, we are all encouraging dialogue. I make a point, these days, of going out and -- if I feel strong about an issue -- I want to engage on a personal level with the person who most strongly feels the other way. That way, you realize they want to compensate the musicians, we want to compensate the musicians. Why are we fighting each other? Some people are saying the record companies want to make money and not compensate the artists. The record companies are saying that to the open-source technologists. At the same time, we all do want to compensate the musicians. So, we think by having a dialogue a big, group therapy session we can bring the views closer together and maybe even recognize some of the potential solutions, which are popping up.
[Margee] Do you think that artists can represent themselves and therefore they should be a part of this forum? Or do you think they are too involved in their careers and less interested in the bottom line and not so much in the process and that someone else needs to be there, representing them and getting the information?
[Brian] I think it's a combination. Yes, artists are notoriously scatter-brained when it comes to organizing, and that's why we've ended up with organizations sucking a large percentage of their lifeblood away from the musicians.
What we felt was that there needed to be an organization where the artists need to be heavily involved in our organization, which they are, to a large extent, from the top down. Jenny Toomey is a very respected indie artist and indie label person. What we need is to have a large part of our core being the artists and the artist viewpoint, at the same time, mixing with all of these people from the disciplines, which affect the artist situation.
It's very interesting because I come at it from a technologist's side and I think I really believe that 'this' is what should happen, but I defer to Jenny and the musicians sometimes because this is about the musicians. In my previous company, Green Witch Internet Radio, we felt that we shouldn't be paying webcast royalties. Why? A) We didn't really believe it would get passed through to the musicians b) we weren't making any revenue; we were largely a for-fun project. They put fees on everybody who only did Internet broadcast, but they didn't put them on the radio stations which were broadcasting on the regular radio. What that was telling us was if you're big, you don't have to pay anything and if you're small and have no revenue, you have to pay money. These were disincentives for small media and we found that horrific. So, we were under the impression that maybe it would be best for us, for many people, for everybody except maybe the record companies, if no one was paying the webcast license. However, as part of this pro-artists organization, everybody else is along the lines of, 'We have to collect these royalties because the rights' holders aren't being compensated and it's necessary.' Okay. That's fine. That is the Future of Music Coalition's position and I'm a part of it. And in reality, it's not up to the technology guy. That's our view and artists should be compensated.
[Margee] What are the complications you see?
[Brian] What I find is we get stuck on a lot of these points that stall us for years, which often, in the end, become moot. Especially when you're dealing with situations where people are going, 'If everyone just adopts this closed system,' which they won't, 'and uses this technology where no one can make a copy of the music,' which is impossible, 'someday in the future, we will find a way to compensate musicians at a percentage of what we're getting.'
WRONG. I don't buy that. I don't buy you go down roads that appear wrong in the belief that all the other roads are worse, and the artist will be screwed that way. I think even in the best case system, if we follow all these digital rights' management pathways, it will be a long time before the musicians start seeing any money. And in those cases, the musicians who see the money are usually the ones who aren't the active musicians; they're the ones with the big hits. The Rolling Stones will make all this money, Britney Spears will make all this money or Britney Spears' manager will make all this money. So we need to have this dialogue where we work through it and we need to find some way to get musicians money now. And in the meantime you've altered the music with information, which in most situations to date have ended up being extraneous.
[Margee] What do you think about the fact that you have often been positioned as partisan?
[Brian] I think because the recording industry was so far to one side of the scale and being the people who were getting the most play in the press [that] anybody who came in with a more moderate position was going to be looked at as partisan and against the majors. We may have been painted a bit incorrectly because I always find it really difficult to say, "They're against me." When what they're really doing is trying to open up dialogue. That's what we're trying to do. We have all sorts of major interests coming to the conference. We have the head of SDMI; we have a bunch of people, including hopefully the head of the RIAA. The aim is not to have a partisan conference or a partisan organization. We have to respect everybody. Some of the people who have been perceived as being against the artist are coming to the conference. Some of them we've put on panels, some of them are paying their own way. We've got Orrin Hatch coming in, he's the head of the Senate Judiciary Committee, and he's a Republican. We've got musicians and legislators and academics and lawyers and technologists. We want everybody represented. If you don't represent everybody, people are going to feel that it was a partisan organization. It's funny; I've watched how we get attacked. We get attacked on one side that we're anti-RIAA, then we get attacked because we're giving them a platform to spread their information.
Some people say, 'Oh, they only want radicals.' And then we get Don Joyce, from Negativeland, who doesn't want to come because he thinks we're partisan to the record labels and he would be the one radical guy there to show that we have some balance. What people do is they project on situations and organizations.
We've been trying to maintain a positive focus on helping the artists but making sure that all the viewpoints are represented. I don't have the answer. I have some answers, on a technological level. I can look at some of these things for artists from the technology side, but that's basically what my job is here. That and brand awareness.
[Margee] Why do you think that you're the ones to do this, rather than all the other artist-centric organizations out there?
[Brian] I come from the school that if you want something done right, you've got to do it yourself. In reality, power to all these other groups, the more, the merrier. Whereas we applaud these other groups and invite them all to participate in one way or another, it's too big an issue to let go to other partisan groups. And a lot of times, it is the money. We may be in a better position, because we have not taken money from a lot of these groups whose position may be different than what was intended by the organization. We haven't gotten any money from the RIAA and people attack us because I made a comment that we would accept it. You know, we're trying to raise money and I think we're all opinionated enough that it won't affect our perception of the RIAA if we took money from them, any more than along the lines of the fact that they are looking to facilitate the dialogue on a legitimate enough level that they're actually giving some money to help make it happen.
Why did we do it, when there were others who were poking at this space? We bring a unique range of talents. I don't know any other organization whose leader is a musician who ran a non-exclusive indie label for a number of years, avoiding the major label system; whose director of technology had a startup that he cashed out of based on the legal distribution of free music; whose lawyer is very respected and has represented a bunch of hip hop and punk bands who are the types who don't normally get representation in the major forums; and a lobbyist who's a D.C. insider he's not a lobbyist for us, he's a lobbyist by profession.
The more the merrier, that's the whole point of this. If all of a sudden, there are 5,000 artist groups going, hey, here's what needs to be done, then Congress goes, '5,000 groups, so many users...' They start counting the votes and maybe they listen. While I absolutely applaud all the groups that are popping up, I don't see why that should preclude us or anyone else from doing what we're doing.
ASCAP - www.ascap.com
BMI - www.bmi.com
FMC - www.futureofmusic.com
Green Witch - www.greenwitch.com
IUMA - www.iuma.com
Mjuice - www.mjuice.com
Napster - www.napster.com
Orrin Hatch - www.senate.gov/~hatch
RIAA - www.riaa.com
SESAC - www.sesac.com
SDMI - www.sdmi.com
Spinner - www.spinner.com
The Machine - www.insound.com/machine
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