[As this post does not explicitly address classical music, it is not really
 approrpriate to the list.  However, as this addresses several important
 issues, I'm making this one exception.  Please see www.the451.com for
 future articles on this topic.  -Dave]

The future of music, day one
(c) Rachel Chalmers - www.the451.com [reprinted with permission]

Washington DC, Jan.  11, 2001 - Ten minutes into the first session of the
Future of Music policy summit at Georgetown University in Washington, DC,
it was clear that the conference would live up to its outstanding hype.
That's no mean feat for the organizers, Michael Bracy, Walter McDonough,
Jenny Toomey and Brian Fisk, who signed their first sponsor a mere forty
days ago.  The star guest was Senator Orrin Hatch, the Web-savvy Utah
Republican whose interest in the travails of recording artists is very
personal.  Hatch, a Mormon, has written inspirational songs and burned CDs.
He's very proud of his first royalty check for a total of $60.  "It's
amazing," he admitted, "how little you earn."

It was a smart thing to say.  Sympathy for their predicament was the
quickest and best way to the hearts of the audience, a motley crew of
musicians, lawyers, hackers, activists, musician-lawyers, lawyer-hackers,
hacker-activists and so on.  The crowd knew their business, and many of
the featured panelists were forced to sweat.  You wouldn't necessarily
have wanted to change places with Manus Cooney, former chief counsel of the
Senate Judiciary Committee (of which Hatch is chair), who has been director
of public policy at Napster for three whole days now.  His listeners knew
the company's ownership structure and number of users better than he did,
and they weren't afraid to say so.  Poor Gerry Kearby, from the secure
music company Liquid Audio, had an even harder time at the hands of session
chair Brad King of Wired News.  King deplores secure music, so Kearby
hardly got a word in.

Although the Electronic Frontier Foundation's John Perry Barlow, EMI's
Ted Cohen and Duke University law professor James Boyle are all terrific
speakers, that session - a music and technology 'state of the union' -
belonged to rapper Chuck D and to Hilary Rosen, president and CEO of the
Recording Industry Association of America.

As a father of three, a relaxed and sardonic Chuck D urged the audience
to embrace Napster as a way of circumventing coercive marketing to minors
and the artificially high price of CDs.  "The youth market makes up eighty
percent of the market that these rich corporate executives are making their
money off of," he pointed out to roars of approval.  No wonder, he added,
that college students go on to be the bulk of Napster's user base:
"There's nothing worse than a hungry-assed college kid."

Rosen had the much harder job of defending the hated record labels and
their crowning legislative achievement, the Digital Millennium Copyright
Act.  "The DMCA had anti-industry effects," she insisted.  "It's not
perfectly balanced, but it's the most balanced thing out there." To hoots
of derision, she amplified: "The telecommunications companies and ISPs
outgunned us on that one."

Rosen - who says her new year's resolution is to be a 'uniter,' not a
divider - didn't bother to defend the antiquated and unfair contracts that
record companies have imposed on musicians in the past.  She urged artists
to consider all their options and to retain a lawyer before signing
anything.  She's a strong advocate of choice.  James Boyle pointed out
that, thanks to the record industry cartel, the choice is a binary one -
are you in, or are you out? A truly competitive industry, he said, would
offer artists a range of contractual options, and music lovers a range of
CDs at widely differing prices.

Nevertheless, Rosen's steady and reasoned performance was a salutary
reminder that she has performed brilliantly in an utterly thankless
position.  Chuck D praises Rosen's integrity, while decrying the cowards
who put her in that position, and says he considers her a friend.  Rumor
has it that she's thinking of jumping ship.  She denied the charge, with
downcast eyes, saying she loves her job.  But virtually everyone in the
industry would be delighted to offer her a change.

Back to the cartel: EMI's Cohen argued that record companies should be
thought of as VCs who invest in the careers of young artists.  The trouble
is, artists assume much of the debt and little of the equity.  Asked later
whether record labels should form joint ventures with artists instead of
signing them to contracts like these, Cohen told the451 he'd love to form
such ventures and has offered them to musicians.  But right now those
musicians wholly own the revenues from tours, merchandising and appearances
in films and on TV.  Under a joint venture, they'd have to share those
revenues.  So far, Cohen said, no one has accepted his offer.

A guild of their own

A recurring theme, whenever the contract issue came up, was the musicians'
longing for a guild of their own, along the lines of Hollywood's Screen
Actors Guild and Directors Guild.  One intriguing possibility is that the
Future of Music Coalition - the conference organizers - could form the
nucleus of such a guild.  Zisk says the six-month-old coalition will meet
to consider its future as soon as the dust from the conference has settled.
A Musician's Guild can't be ruled out.

At the same time, it may not be the best solution.  Unions operate by
excluding nonmembers, and an unspoken tenet of the revolution in music is
that technology should make the industry more, not less, inclusive.  The
poster child for this movement is Eben Moglen, general counsel for the Free
Software Foundation, law professor at Columbia University and outspoken
anarchist.  In a panel on copyright law, Moglen turned complex intellectual
property issues into a comedy routine, to the huge appreciation of his
listeners.

"The fact that they put the word 'copyright' in the title doesn't make
the DMCA a copyright law, folks," he said.  "It's a technology control
law, designed to make a leak-proof pipe between your homes and the five
companies that control music and the eight that control movies - and
suddenly any leak in that pipe is a huge legal dilemma!" When the other
panelists started arguing over detailed interpretations of the DMCA, Moglen
remarked, "You are listening to a conversation between dead businesses."

Moglen's argument is that, since the most important goods in today's
economy - information goods - have zero marginal cost, and since everyone
in the world is or is potentially interconnected with everyone else,
anarchic methods of distribution will overcome the existing methods through
sheer superior efficiency.  "Sellers that own stuff," he said, "will cease
to exist...Start using Gnutella or some other free software system," he
urged his listeners.  "Don't worry about how you will be paid.  People
would love to pay you for your music.  You will do fine.  Just leave.  Get
out of this house, it's falling down.  You'll be safe, and you won't be
sorry."

The same session saw Jonathon Potter, director of the Digital Media
Association, calling on the troops to unionize.  But when the session
broke, Potter was left chatting to his friends, while Moglen was mobbed
by young musicians.  "That's what's wrong with this industry," growled one
observer.  "The practical suggestions are ignored, and everyone's fawning
over the anarchist."

The fate of SDMI

Two more star guests graced Georgetown's beautiful Gaston Hall after lunch.
They were Princeton computer scientist Ed Felton, famous for his expert
testimony in the Microsoft trial and for cracking the Secure Digital Music
Initiative - and Leonardo Chiarglione, head of SDMI and self-described
'professional destabilizer of the status quo.' Chiarglione, like Rosen, is
a kind of political appointee.  The record labels and technology vendors
behind the Initiative probably hoped that his background as a developer
of the MP3 standard would help him win hearts and minds for SDMI.

If that's what his employees hoped, it's not working.  More and more
commentators note that Chiarglione seems to be out of his political depth.
His performance at the conference won't help.  "People wanted to kill me
because of MP3," he shouted, "and now they want to kill me because of
SDMI...This will offer freedom to ordinary people, freedom that they have
never enjoyed before in the entire history of mankind!" The audience was
silent for a moment, then erupted in embarrassed giggles.

Felton was in an uncharacteristically somber mood.  It turns out that his
long-promised paper on vulnerabilities in the SDMI watermarking schemes is
being held up by lawyers who fear that his work contravenes the notorious
Section 1201 of the DMCA.  This clause prohibits any attempt to circumvent
a mechanism that exists to protect copyright.  There are exemptions for
researchers, but Felton reported that: "The encryption research carve-out
in the DMCA does not protect this activity, or much of what we are trying
to do."

Moglen, the FSF lawyer, is optimistic that 1201 will be overturned as
unconstitutional by the Supreme Court.  Felton does not seem so hopeful.
As many have warned, by greatly extending the rights of content owners, the
DMCA may have the unwanted consequence of stamping out reverse engineering
and basic computer science research.  Somehow, the interests of content
creators, owners and users have to be balanced.  It won't be at all easy to
strike that balance, but conferences like this one - where the combatants
can meet on relatively neutral ground - are a big step in the right
direction.

Janos Gereben
Senior editor, www.the451.com
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