I've been avoiding iTunes as a consumer and a producer with only the vaguest thought for why it rubbed me the wrong way, other than (i) the evil record companies haven't shut it down so it must be bad, (ii) $1.00 a song seems way too high for a compressed file when more good ones than you could ever listen to can be found free on the web, (iii) fads suck and Apple, after being the cool company for so many years, is starting to suck, and (iv) headphones for recreational listening are bad for your long-term hearing.

Thanks to Francis Hwang for linking to the musicians' rights organization Downhill Battle, which has this page up explaining exactly what's wrong with iTunes and proposing a much more wholesome scheme called "voluntary collective licensing." One good reason for avoiding the iTunes empire is
Despite huge new efficiencies created by internet distribution--no CDs to make, no distributors to store and ship them, no CD stores to build and run--artists receive the same pathetic cut [as they do from their exploitative record contracts]. That is the disaster of iTunes. Instead of using this new medium to empower musicians and their fans, it helps the record industry cartel perpetuate the exploitation. Apple might say it's not their fault: after all, they didn't write the unfair record contracts. But when Apple supports and profits from an obviously unfair system, while telling customers that it's "fair to the artists," they are just as guilty. [Per Downhill Battle, Apple recently removed the claim that iTunes is "fair to the artists" from their website.]
Hwang recently had a run-in with the not-so-benevolent Apple when he put a parody iPod up for sale on eBay. Referencing the infamous early copyright debacle where rich rockers U2 went after indies Negativland and bled them dry from legal fees for no apparent reason other than because they could, Hwang sold an actual, functioning, repackaged-but-not-otherwise-altered iPod loaded with eight Negativland albums, "to get you started in your subversive listening habits." This was clearly an art project, prank, legitimate act of protest, or what have you; proceeds were to go the the aforementioned Downhill Battle.

The humorless Apple predictably stopped the eBay sale. Hwang received an email from the online auctioneer telling him "We would like to let you know that we removed your listing: 2290680118 Unauthorized iPod U2 vs. Negativland Special Edition because an intellectual property rights owner notified us, under penalty of perjury, that your listing infringes the rights owner's copyright, trademark, or other rights." (Perjury means lying under oath. I assume this means Apple had to swear the infringement claim was valid. It could be clearer.)

Hwang's project is further explained in Rhizome's Net Art News, which perhaps goes a tad light on the heavies ("Apple contributed to the poetry of the object" by stopping the sale?), and on this page of Hwang's. His first iPod is no longer for sale, but a second version is included in Negativland's current show, which I haven't seen, at Gigantic Art Space in NYC.

- tom moody 9-12-2005 2:12 am

The old "evil record company" versus "poor little artist just trying to scrape by" fairy tale is soooo tired. This sort of black and white story seldom holds up under closer inspection. Take Negativland, for example; did U2 sue them out of spite? No, they sued them because Negativland took their property without permission and sold it in an attempt to make a profit, plain and simple. Is U2 a multi-platinum band full of self-important rich white men? Of course they are, but that doesn't mean that their property rights shouldn't be respected. Besides, the vast majority of those struggling artists you're so worried about would sell out their own mothers in a second to trade places with a band like U2.

Don't want your hard-earned dollars going to evil record companies? That's fine, just avoid buying songs from the major labels, whether on CD, vinyl, or from iTunes. There are lots of indie labels selling on iTunes as well, and many of them treat their artists just fine. Apple's cut of the take is remarkably slim, believe it or not. Apple's iPod players are the best and coolest available. And most importantly, you're gonna need iTunes to buy my next album (coming in November 2005)...
- G.K. Wicker (guest) 9-12-2005 5:17 am

Hey Tom,

Thanks so much for the write-up. One correction: You can no longer buy the iPod off my site. That auction was finished last March.

However, I did a second version (2G, for iPod fanatics) in Negativland's new show at Gigantic Art Space, and that's available on auction too. Read more at www.giganticartspace.com/current.html

Anyway, I'm not generally anti-Apple, though not excessively pro-Apple either. I think they're a big corporation that makes great products: I buy their stuff often, I admire their sense of design, and I expect them to do awful things from time to time, as corporations are designed to do. But I do like their design. I wouldn't have spent so much time copying it if I didn't admire it, too.
- Francis Hwang (guest) 9-12-2005 5:18 am

Francis, I changed the last para, thanks for the correction.

Gary, it's interesting that you're so generous on your site with the x-eleven material, inviting people to download it, mash it up, etc, but such a hard case defending the rights of U2 against Negativland. I don't think it's clear cut by any means that Negativland "took someone's property and attempted to profit from it." From the interview with Negativland and The Edge it's pretty clear that U2 didn't think it was so clear cut either.

And I don't agree that most creative people want to be multimillion dollar corporate rockstars.

I've read enough articles about record companies basically acting like the "company store" to artists (Courtney Love's really crunches some numbers) to convince me the industry is indeed evil, if evil means greedy, corrupt, criminally inefficient... When did the price of CDs drop? Too much fat at the top.

Voluntary collective licensing sounds like the way to go for online. I'm for alternatives to the corporate model. I really hope iTunes doesn't become the sole means of online music distribution out of laziness, inertia, or the bandwagon effect. I like that there are lots of "pirate" alternatives out there. But then I'm not releasing a record on iTunes.

- tom moody 9-12-2005 6:35 am

I like how the "artists computer company" doesn't offer an mp3 player that's capable of recording at decent quality. The ipod linux project revealed that the hardware can actually record at better quality, it's only limited to a low bitrate because the ipod firmware is crippleware. can't help but think it's because they're in bed with the RIAA.
- Burgertime 3 (guest) 9-12-2005 9:25 am

Hey Tom,

My decisions to release my material for any use are just that -- my decisions. I don't expect other people to make the same ones, and I don't believe in a black and white world where one type of use is "right" and another type is "wrong". U2 made the decision to work with a big record company (Island) where lots of people's salaries depend on their album sales. It's not just the $400/hour lawyers, but also the $10/hour graphic artists that do the art layouts and recording studio interns that load tapes and fetch coffee. Contrary to popular opinion, not everyone in the music industry is pulling down a huge salary and living on a yacht. This article from Wired magazine gives a good overview of the Negativland story, and you can see the cover art that SST tried to use for their single here. SST released this record at around the same time that U2's many fans were expecting a new album, and it's pretty obvious that they did this in an attempt to increase sales. They didn't request permission to use U2's logo or recording in their product, and so Island records sued them. If Negativland had simply wanted to make an artistic statement, they could have produced the same art and displayed it in galleries for free. The art would have been just as (if not more) effective, as it would have been unsullied by the base concerns of commerce. But by signing a deal with SST to *sell records* containing someone else's copyrighted material, they left themselves wide open for a lawsuit. The saddest part is that U2 has always been a very forward-thinking group, and if SST records had simply contacted Island about a partnership, this story might have had a very different ending.

While it's probably true that most creative types probably don't want to be in a multi-platinum sellling band, I'll still bet that most musicians and songwriters would jump at the chance, especially when the band in question hasn't sacrificed much in the way of artistic integrity to achieve their remarkable position. Whether or not you think U2's art is worthwhile, they have always remained true to their vision and are an exceptionally hard-working bunch of fellows.

Collage artists don't have it easy, and while we can debate whether our intellectual property laws are just and fair, I'll put my money on Sony and their army of lawyers winning the battle any day. The little guys just don't stand a chance. So what to do? Well, DJ Danger Mouse made a great piece of art by combining two others and giving it away for free. He probably caused a few heart attacks in Hollywood when it became obvious that there was no one to sue because there was no money involved, and now he has a successful career as a remixer and artist in his own right. What was different in this case? He knew he would never be granted permission, so he didn't even attempt to offer his art for sale.
- G.K. Wicker (guest) 9-12-2005 8:03 pm

Whoops, my article links didn't show up, so I'll try to put them in here...


Oh, and as far as the iPod not having good sound quality, the vast majority of the music you're listening to is so heavily compressed that 128Kbit AAC is more than up to the task of accurate reproduction. If you're a 25-year-old classical music afficionado that has avoided exposure to loud sounds, you might notice the decreased dynamic range, but for the vast majority of us who listen to rock, pop, or electronica, the difference is usually too subtle to notice. And if you've been hanging out in clubs listening to +100dB sound systems and garage bands, your hearing is probably completely blown anyway. As an aside, one reason that vinyl sounds so much better to many people is that it's dynamic range is lower than CD audio, so the additional compression can seem to add a bit of warmth and presence.
- G.K. Wicker (guest) 9-12-2005 8:18 pm

Thanks. I have more to say on U2, et al, but quickly, we ought to keep in mind the time frame--1991, the time of the U2 lawsuit, was early in the game as far as artists realizing how far corporations would go to demolish them for presuming to sell their little art statements. Danger Mouse had the benefit of a decade of pain on the copyright front.

BTW, our site strips html, so if you'll type the URLs without html tags I'll make them into links. Your commentary is greatly appreciated! (Just saw your comment--am fixing those links.)
- tom moody 9-12-2005 8:20 pm

Just a couple more quick thoughts before they slip out of my brain--

--If resolution is such a connoisseurial thing, why not allow iPods to record mp3s at the bit rate of your choosing? I just don't like the dedicated nature of the hardware. If I was a hacker I'd hack'em wide open, use'em for everything the hardware allowed me to do.

--It's not true that corporations leave you alone as long as you don't sell. A small case in point: Eric Fensler's hilarious remixes of GI Joe videos, totally free downloads enjoyed by millions on the Net, led to a cease and desist letter from Hasbro's lawyers. Fensler had to move them off his own site, presumably to a server that could take the heat from the Man. Copyright is becoming an egregiously overused weapon to stifle anything a company doesn't like. U2 could easily have suggested a pittance settlement, early on in the game, since Negativland clearly wasn't in their market or their league. In the interview, the Edge makes like he was powerless to stop the corporate juggernaut. The punishment vastly outweighed the "crime."

- tom moody 9-12-2005 8:53 pm

Actually, iTunes allows you to encode MP3s at any bitrate you choose. I use 320Kbps (highest quality) for mine because I have lots of disk space; the iPod plays these back at this higher resolution. 128Kbps AAC is used *only* for songs you purchase and download from iTunes. I suspect Apple chose this rate as a tradeoff between audio quality, download time, and server space. Higher bit rates require longer to download, which makes the user experience less convenient. But if you don't purchase music online and just rip your own CDs with iTunes, this won't affect you. You can use the higher bitrate if you want...

And that's a good point about the timeframe of the U2/Negativland fiasco; The Beastie Boys had released "Paul's Boutique" shortly before this and had gotten away scot-free stealing tons of famous samples. They themselves have admitted that they wouldn't be able to release "Paul's Boutique" today.
- G.K. Wicker (guest) 9-12-2005 9:18 pm

>The old "evil record company" versus "poor little artist just trying to scrape by" fairy tale is soooo tired. This sort of black and white story seldom holds up under closer inspection.

The recent Sony payola stuff held up pretty well (in the courts). Although I think it's going to take a lot more to crack the Majors' death grip on radio.
- Hunt the Wumpus (guest) 9-12-2005 9:49 pm

I wouldn't use the word stealing in relation to samples. Paul's Boutique is a great album, especially the first ten minutes or so. It's a completely new creation, not a rogue's gallery of thievery, relying on quick hits of recognition of others' work. Is it stealing when a live drummer throws in a couple of bars of Gene Krupa? Usually audiences are delighted by that kind of quotation. That's all it is, quotation--record company lawyers and the word "stealing" brought an end to a beautiful, creative period in music.
- tom moody 9-12-2005 10:01 pm

All of these postings raise good points, and I'll toss in my final contributions here:

Yes, Paul's Boutique is a great album, but it wouldn't exist without those samples. And the musicians that performed those samples weren't paid for their contributions, even though their work was integral to the album. Is that fair? Many of these performers practiced for years honing their craft for little or no pay, only to have it lifted wholesale and sold for a profit so that the Beasties could become wealthy and famous and get to enjoy lots of no-strings-attached sex with supermodels. You may not consider that stealing, but I suspect your opinion might be different had you been one of those artists.

A live performance which quotes another artist's prior performance is a different animal altogether. The audience is typically smaller, the performance itself requires more skill than recording and looping a sample (trust me, I've spent plenty of time doing both and performing is much more difficult), and the art in question is ephemeral. It exists only in the moment and can never be sold again. Recordings exist essentially forever and can be repeatedly sold for a profit. I'm not slighting the Beasties' effort in the least, because their art (and PB in particular) is extremely impressive and requires a lot of skill to execute. I just think that everyone that contributes to their recorded works deserves to be paid.

It's interesting, I find that musicians such as myself that have spent years honing their performance skills on a particular instrument tend to share my views on sampling; why did I spend twenty years of brutal, thankless effort learning the saxophone when someone can simply lift my recordings and sell them for a profit? Computer musicians and DJs that specialize in collage art usually take a more collectivist view, that all recorded material is simply grist for their mill, conceptually no different than paint to be applied to a canvas. This would be fine if they also took a collectivist view to sharing their profits, but they tend to become curiously capitalistic as soon as they taste a bit of financial success.

The music business is neither fair nor equitable, but guess what, most businesses aren't. I've worked in a variety of fields, and there are good and bad folks in all of them. Sometimes they behave themselves and are good corporate citizens, sometimes they're not. C'est la vie.
- G.K. Wicker (guest) 9-13-2005 12:41 am

There's a point where an artist should get paid for a sample (Ice Ice Baby), but when the sampling artist makes something that becomes totally their own thing and isn't using the old music as advertising (which for Negativland is debatable), then I think it should slide by. Currently the courts seem to be considering ANY sample to be copyright infringement even if it's completely un-identifiable and miniscule. That's totally out of hand. Add that to the fact that effectively, copyrights no longer expire. They're just extended indefinitely. Don't forget to pay Time Warner before you sing Happy Birthday in public.
- Yars' Revenge (guest) 9-13-2005 2:17 am

heres a list of samps and refs from pauls garage by song. i dont find gkw's argument at all convincing. who are these rich collage artists ? braque? tom could you burn me a copy of pg?

- bill 9-13-2005 4:12 am

Gary, you said you don't believe in a black and white world where one type of use is "right" and another type is "wrong".

Unfortunately the word "stealing" is very black, and that's how the courts see it. Most judges don't know shit about music and couldn't tell the difference between Ice Ice Baby and two seconds of an unindentifiable Chuck Mangione lick utterly changed by the new context. To the company lawyers it's all stealing, and that's why we have such bad, un-nuanced precedents in the law books.

Just because the legal issue has been decided--in favor of the folks with cash, what a surprise--doesn't mean it's been decided morally. Our viewpoints are opposed on the issue of sampling, and I try to look at it not as a collage artist but as a maker of "whole works" who frankly wouldn't mind seeing or hearing a snippet here or there in another context. It's all a matter of degree and intent, but that's not how the courts see it, thanks to the Turtles, U2, et al.
- tom moody 9-13-2005 4:23 am

I don't expect everyone to agree with me. However, if you'd like to understand what I'm talking about, I'd recommend picking up an instrument like the guitar, the piano, or the saxophone, and learning to truly master it. It will take longer than you ever imagined, and your fingers will bleed and hurt. After many years of frustration and endless boring practice of scales and etudes, you'll start to understand just how priceless those juicy little phrases everyone's so eager to load into their samplers really are.

Also, if you want to rail against evil corporations (I know I do), there are much more evil ones to pick on than the music companies. Union Carbide's a good start, they killed a thousand people in one night in India. Halliburton profits from death and destruction every day. Wal-Mart is laying waste to small towns in the American heartland with their predatory pricing. The worst Sony and their ilk ever gave us was talentless pop stars and silly sampling lawsuits; at least they never *killed* anyone...
- G.K. Wicker (guest) 9-13-2005 6:05 am

The sampling suits aren't silly to anyone who's on the receiving end of them. Litigation drains you emotionally and financially. Lots of people who look in on this page have mastered a craft--whether it be playing an instrument, painting a photorealistic picture, or inventing an art form that hasn't even been recognized yet. For every one who thinks they're entitled to every nickel they can wring out of the expertise, there's another who knows it can never be copped or diminished by sampling; that imitation is flattery whether or not it puts money in the cash drawer--that they are The Maestro. I'm not too persuaded by cults of expertise. Segovia mastered his craft but we still value the Troggs (I sure do.) As for somebody who mashes up both Segovia and the Troggs...well, we'll never know the value of that, thanks to the courts.
- tom moody 9-13-2005 6:26 am

Bill: Braque's estate needs to give those newspaper clippings back. Will burn Paul's Boutique for you, you'll get a kick out of what they did with David Bromberg's Sharon--a staple of FM radio in DC in the 70s--if you haven't heard it. And Abbey Road. Don't know if Burgertime 3, Yars' Revenge, and Hunt the Wumpus are the same person but you are cracking me up with the names. Gary, thanks, this sounds like one of those agree to disagree things, but it's good to discuss it.

- tom moody 9-13-2005 11:06 am

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