I can't hear the music. . .
There's a lawyer in my ear

Sam Smith

I recently went to the Progressive Review's music page and clicked on a link to a jazz video from many years ago. Instead of the video I found this:

"This video is no longer available because the YouTube account associated with this video has been terminated."

I began clicking other links - to Ben Webster, Hank Williams, Eva Cassidy, Zoot Sims and others.

Similar messages, some including the name of the copyright owner.

The masochistic merchants of music had struck again.

And to what end? To stop that vicious international gang of Zoot Sims pirates?

I thought back to a couple of summers ago when I had introduced my six year old granddaughter to Ella Fitzgerald singing "A-Tisket A-Tasket" on a bus conveniently occupied by backup voices. My granddaughter had insisted on seeing the YouTube clip six or seven times.

Had we undermined the RIAA? Lost money for whichever corporation now controlled Fitzgerald's royalties? Practiced digital shoplifting?

I think not. At worst, I had created another Ella Fitzgerald fan and if she had been sixteen instead of six, she might have even downloaded some Ella tracks from iTunes.

That's was what I thought I was doing when I posted the links to Zoot Sims and Eva Cassidy: introduce them to some of a new generation of music lovers. After all, the first step in marketing is to get someone to know what you're selling.

But the recording industry doesn't think like that, in part because their approach seems driven by legal advisors who obsess over the precise while the viral, communal, incalculable and truly significant totally passes them by.

And despite, or because of, their efforts, music sales are down.

The RIAA lawyers would have you believe it's all because of illegal downloaders. It's true that illegal downloading is a problem but the industry has grossly overestimated its importance and underestimated other factors hurting music, including itself.

For example, the Guardian cited a study by by Felix Oberholzer-Gee, Associate Professor at Harvard Business School, and Koleman Strumpf, Associate Professor in economics at the University of North Carolina that found "downloads have an effect on sales that is statistically indistinguishable from zero."

"'Our hypothesis was that if downloads are killing music, then albums that are downloaded more intensively should sell less,' says Strumpf. But, after adjusting for the effects of popularity, they discovered that file sharing has 'no statistically significant effect' on sales. . ."

Another study by Industry Canada actually found a positive correlation between peer to peer downloading and the purchase of CDs.

And last year, Ars Technica wrote: "Those who download illegal copies of music over P2P networks are the biggest consumers of legal music options, according to a new study by the BI Norwegian School of Management. Researchers examined the music downloading habits of more than 1,900 Internet users over the age of 15, and found that illegal music connoisseurs are significantly more likely to purchase music than the average, non-P2P-loving user."

Forgotten in all the furor is how close the recording industry came to resolving the problem a decade ago. Rollng Stone reported in 2007:

"Seven years ago, the music industry's top executives gathered for secret talks with Napster CEO Hank Barry. At a July 15th, 2000, meeting, the execs . . . sat in a hotel in Sun Valley, Idaho, with Barry and told him that they wanted to strike licensing deals with Napster. . . The idea was to let Napster's 38 million users keep downloading for a monthly subscription fee -- roughly $10 -- with revenues split between the service and the labels. But ultimately, despite a public offer of $1 billion from Napster, the companies never reached a settlement. . . In the fall of 2003, the RIAA filed its first copyright-infringement lawsuits against file sharers. They've since sued more than 20,000 music fans."

There is no doubt the industry is in trouble. The LA Times reported early last year:

"Last year saw a 21% drop in the number of people in the U.S. buying music -- both digital and physical -- compared with 2007, according to figures released by NPD Group, a market research firm. . . The number of people in the U.S. who bought music fell by one-fifth, to 93 million, in 2009 from 116 million in 2007."

But several factors other than illegal downloads contributed to the decline. Among them:

- The number of stations that play music such as jazz, classical or country has fallen. In 2004 the Weekly Standard reported, "The number of noncommercial stations identified as 'classical' has been cut in half since 1993" and in 2007 Marc Fisher wrote in the Washington Post: "With last month's format switch in Los Angeles, the nation's two largest markets now have no country on the radio. New York lost its last country station in 2002, a year after San Francisco fell into the same status. "

- People aren't listening to radio as much as they used to.

- Thousands of record stores have closed

Furthermore, if having Ben Webster or Hank Williams on YouTube is such a hazard to the industry, how come I was able to write some of the above while listening to Adam Lambert and Carlos Santana online, whom I had reached quite easily and without cost by going to the site of Sony, their record company and the largest in the business?

Do the RIAA lawyers realize that I've been in peer-to-peer cahoots with Sony?

The whole business brings to mind the war on drugs in which marijuana, the least dangerous drug, and its users are the most heavily targeted - because pot and potheads are easier to catch than, say, major cocaine dealers. Similarly, it's much harder to stop the Chinese from copying your recordings than it is to sue a downloading American teenager..

To make matters worse, the president has chosen five RIAA lawyers to be top members of his administration, including the solicitor general. In other words, five lawyers from one of the least productive and most screwed up industries in America are now helping to run the country.

In a curious way, the choice of these lawyers echoes Obama's approach to public education. In both cases - the recording industry and education policy - over-precise rules as to how to listen or how to answer are substituted for imagination and creativity, and in both cases the larger goal suffers badly. Further, the demands of the test tyrants has, among other things, reduced the time for children to learr, sing and play music.

Yet throughout history, music has thrived as a communal activity. People learned songs at schools, churches, summer camps, college dorms, jam sessions and political protests. In the latest stats, it is interesting that gospel recording sales fell the least, perhaps in part because it is one of the few forms of popular music today which is still belongs to a community of voices rather than just lonely and often silent consumers attached to the sound by earplugs.

It is not enough to have live performances or recordings; you need a culture in which music is an integral part. John von Rhein, music critic for the Chicago Tribune came across this recently in his town: "What makes Chicago a world-class center of classical music performance? It's not just because we have established institutions operating at high artistic levels. Part of the reason lies with the fact that the many smaller groups orbiting around the big boys do quality work in their own right, complementing each other's repertory while setting their own stamp on it. And this has brought classical fans a healthier array of choices than the city has perhaps ever known before."

One need only say the words Nashville or New Orleans to be reminded of how critical community is to the natural growth of music. Or say the word 1960s to be reminded of how music and movements can magically blend.

Over the past half century, music has become the prisoner of a corporatized society that thinks branding something is the same as creating it, that ownership is more important than sharing, and that art is just one more product.

I came in at an early stage of this conversion, working as a news reporter at a Washington radio station that was one of the first programmers of top 40 music. I later wrote:

"Between about a dozen commercials every half hour, WWDC played its song list, inserting more traditional music after every third or fourth current hit. Although such programming clearly pleased the audience, surveys confirmed what some observers suspected, namely that the new radio was appealing to an easily influenced but small segment of the population: the record-buying teenager. Stations thus were not only deceiving themselves but their advertisers since sponsors were trying to sell things a teenager would never buy. Someone described radio at the time as 'a bunch of 12-year-olds trying to keep up with a 14-year-old audience.'"

Defining the music business by its most easily influenced audiences continues to this day. And the decay of American music has been hastened by other things, such as the disco drum machine of 1970s. A live drummer is constantly listening to the other musicians, finding new ways to back them up, discovering a groove by intent or accident, making a critical two bar point, or just showing off. If you were to analyze the sound with lab equipment you might be amazed at how irregular it actually is - the inevitable result of being human rather than mechanical.

But that is part of the secret of real music. Much of the appeal of jazz, for example, comes from listening to the alteration, manipulation or distortion of the familiar. Thus a singer may hold a note longer than expected or lend it excruciating pain when you were expecting nothing more than a simple B flat. One writer described it as repetition just to the point of boredom - at which something new and unexpected happens.

As amplifiers replaced acoustic sound, there were other changes. The recording companies began dumbing down music, reducing the number of chords, replacing melody with repetitive phrases, emphasizing only the extreme end of the dynamic range, and in the end - with rap - doing away with the need for music almost entirely.

This is not to say that there is not much merit within these forms - the pain and rebellion of punk, the soul of rap - just as there was with the earlier simple three-chord music of blues or country. The issue is variety and range. The growth of music in western culture owes much to the increase in chordal options.

You can like rap and a augmented seventh chord at the same time. And even if you don't, there is audience for both. For the most part, however, the corporate monopolies had seized control of our ear drums and locked them down into a few small cells.

The simplistic way popularity is calculated can seemingly justify all this yet be quite wrong. In 2003 I came across a highly unusual poll that looked at Japanese teenage musical preferences in a different way. Here are the percentages of Japanese adolescents who liked very much a genre of music followed by the percentages of those that didn't like it at all:

  • Rock: 45, 28
  • Rap: 26, 43
  • Top Forty: 25, 43
  • Classical: 23, 48
  • Jazz: 23, 45
  • Techno: 22, 47
  • Soul: 17, 53
  • Country: 15, 53
  • Heavy Metal: 12, 48
  • Punk: 11, 66
  • Easy Listening: 10, 60

In every case, except for rock, over 40% of those surveyed didn't like each genre. So for each genre there was not only a market but an anti-market.

Now, take a look at a more conventional list from a few years back - the first ten of the top 100 artists of all time, at least in the judgment of Rolling Stone:

  • 1. The Beatles
  • 2. Bob Dylan
  • 3. Elvis Presley
  • 4. Rolling Stones
  • 5. Chuck Berry.
  • 6. Jimi Hendrix
  • 7. James Brown
  • 8. Little Richard
  • 9. Aretha Franklin
  • 10. Ray Charles

The list, of course, is debatable; after all Miles Davis was listed as 88th, six places below Eminem. But what is not debatable is that among the top ten none were recently emerged artists (and the whole list had only a few). Implicitly, Rolling Stone was admitting that the best of American music was in the past.

Thus there is an inherent conflict between the sort of music people would like to hear and the sort the recording industry wants to sell them. And people are far less unified on the subject than either the industry or the media would have us believe. So, you can create a myth of the new and fantastic, but people will still insist on listening to the Beatles. Or you can push a new sound and forget that 40% of the public may really not like it at all

There's another problem that doesn't get discussed, illustrated by a 2002 list of top artists by sources of their income. Interestingly, it was only Eminem and Jay Z - who can fairly be described as the least musical of the lot - who got most of their income from recordings. Paul McCartney, the Rolling Stones, Dave Matthews Band, Celine Dion, Cher, Bruce Sprinsteen, Ozzy Osbourne, Elton John and the Eagles all got most of their income from live concerts.

For example, for Dion it was 72%, for The Eagles 86%, for Paul McCartney 90%.

Why is this significant? Perhaps because live performances have become far more than a matter of music. They are theater, proximity to fame, erotic moves, smoke rising from the pit and mind-blowing light explosions. A CD with only music can pale in comparison for excitement.

Could it be that many are losing interest in music unless it is part of a theatrical show? Have our eyes spoiled our ears?

I don't know, but it's the sort of question the recording industry should be considering.

In any case, if I were asked by RIAA or its members to help, here are a few of the suggestions I would offer:

- Go after illegal downloading the way the government should go after illegal drugs. Spend your efforts on the major dealers and leave the teenage pot smokers alone.

- Leave YouTube alone. When you see one of your stars on it, send YouTube a widget that allows the viewer to order a CD or find out more. One of the ways I suspect the recording industry goes awry is because it suffers from IDD - Internet deficit disorder - a common problem among those not raised on the web. It is, for example, much easier to find an artist on YouTube than through the Sony site, but if the RIAA would pay their lawyers less and hire some better web designers they could come up with an industry version of YouTube that would introduce people to the vast array of American music and show them how to spend some money on it.

- Get music back into American life on something other than an Ipod. Lobby to have more music taught in schools, sponsor TV programs that introduce viewers to the full variety of American music. A series on the history of country and western would be a good place to start. And help Hollywood do more films about musicians, famous and otherwise.

- Remember that loving music is not just a matter of listening. It's singing, playing, and being in the same room as someone who really knows how to strum and pick a guitar. It's a gospel choir, the college doo-wop group, the teenage band playing at the local coffee house. It's making it cheap and easy for music to be part of our lives.

-Try helping and encouraging the audience that you need so much to build itself. It's really bad branding when you create an industry that so many think wants mainly to sue you.

- Produce more enjoyable music. For example, many of the contestants on American Idol seem to think that music is inextricably linked with the display of intense feelings - typically pain or anger - generally without relationship to the mundane lyrics being sung. Even when the effort is directed at the emulation of orgasm, the result often seems more like watching the prolonged injection of a tetanus shot.

There's nothing wrong with pain or anger in music - witness the blues or punk - but the thing that has really made music universal throughout human history has been its ability to take us away from the awful realities of life, to make us laugh, sing, and dance despite it all. Check out folk music, traditional jazz, gospel, the hugely successful swing bands of the 1930s and 40s, or the pre-corporate music of cultures all over the world and you will find it. And you also find it in the Beatles who sold about 139 million albums between 1964 and 2008 and who for the first twenty years were responsible for 25-30% of Capitol records' total sales. The thing is that the Beatles make us feel happier about ourselves and about life. As they put it, "Don't make it bad. Take a sad song and make it better."

- Help people discover music, play music, sing music, and hear music. The more it becomes a part of their lives the more they will love it and the more they will buy your stuff.