By George Ziemann

I'd like to thank all of you who have supported my position until now.

Because I'm going to lose the webcaster support today. They're part of the problem, too.

I'm not going to go into a long rant here, just enough facts to support my position. And enough to present the other side of the case as well.

Let's forget about the RIAA for a moment. What they think does not matter, only what they have done. Even if my foolish quest to disassemble them is successful, some of the problems will remain. Everyone here is talking about morality, what's right and wrong, what the law says and what it doesn't say. At some point, we have to look beyond the battle and foresee the rebuilding process.

Let's imagine for a moment that the RIAA has disappeared and the playing field is level, but the pre-existing laws (BN - Before Napster) still apply. Further, assume for a moment that my outrageous claim that mp3s are merely ads for a real commercial recording is accepted as fact and embraced.

So do I have to pay to place these ads?

Common sense says yes. In most cases, so would I.

DMusic is a good example. Right now, they are providing me a free service. I can still upload as many songs (ads) as I want to provide to my potential audience. They've already warned us that they can't afford to do it for free forever.

That's just business. And, while DMusic may be making money from advertising (or not), they are not charging people to listen to my music. And the music fan who stumbles in has their choice of whatever they want to listen to, when they want it, in the order they want it.

That's the line. On the other side of the line are the webcasters. Not all of them, mind you, but in the past couple of days, I've heard from a few webcasters. Most of them are pretty nice. They say they want to help the indie artists. They'll play our songs.

For a price.

But now the customer has no selection, no say in which songs are heard, except possibly by e-mailing in or voting on their favorites. Just like radio.

This is why royalty fees were instituted for webcasting. The webcasters think this is unfair and say it will drive them out of business. So they've stopped playing the major label music (some of them, anyway) and are turning to the independents.

One webcaster told me staight out -- "You know this is pay for play, don't you?" My answer was, yes. I know. I consider my mp3s to be ads, remember?

But no matter what I think, payola, aka "pay for play" is still illegal. There is a royalty fee for webcasting -- because the listener has no say in the programming.

Whether or not I am willing to pay has no bearing on the issue. Just the law. If I had the bucks, I would have paid Clear Channel to play my songs. It still wouldn't make it legal.

It doesn't matter if it's a Tom Petty song or one of mine. There should be no difference.

When Clear Channel announced it was discontinuing its contracts with independent promoters, I saw one note that said, "Why didn't the labels just stop paying Clear Channel?"

The webcasters have to pay the majors. They should have to pay us, too.

Or they'll have nothing to play at all. I think it will be REALLY hard to sell advertising when you have no program content.

Where are u losing the webcaster support?

Well, it depends on the webcaster. If they're one who is basing their content on artists paying to get played, this will screw up their business model.

I talked to one today and laid all of this out to him. We actually debated the subject sensibly and without calling each other names or anything.

He agreed with these points:
-- They don't play major label music simply to avoid the royalty issue.
-- I can waive my royalties and allow them to use my music for free.
-- The royalty laws apply to webcasting, just the same as they do to terrestrial broadcasts.
-- Paying him for play is the same as paying Clear Channel for play.

But he says the payola law does not apply to webcasting, even though it is a direct transaction between the webcaster and the artist.

So, if I start paying this guy to play my music, has he broken a law? Have I?

We're both in the same city. Who has jurisdiction? Who do I request a legal opinion on for this? The mayor? The City Attorney? the state Attorney General? John Ashcroft? Sandra Day O'Connor? Orrin Hatch?

Or does it just not matter if I'm not signed to a major label? Does market domination extend to the interpretation of the law?

My songs are copyrighted. I asked the Library of Congress and they said I certainly CANNOT revoke my copyright.

Who is protecting my damn rights and where the hell are they hiding?

My assumption is that most webcasters will pursue a different business model than charging artists for airplay. Not only will most artists balk at the notion as you do, I am a firm believer that when you play music for the price instead of the passion, it shines through; people won't tune in to a webcast that doesn't have that passion driving it.

And this gives me the opportunity to reiterate another point I've been shouting for a couple years: if webcasters are having trouble meeting the financial demands of the project, they should band together into collectives, hosting "shows" for a couple hours a day or a few hours a week, thereby dividing the costs among several like-minded 'casters (and keeping content fresh for the listening audience, I might add; shows beat loops any day).

Well how about you just forget the radio station and try others I have found radio stations that play my music for free. Also I think radio is slow to get to fans as the DJ may or may not mention the artist name and such

I found files sharing to be the best deal for me I have got over 7500 downloads of my music samples from direct fans. My music is encoded with digital rights on it so that it cannot be lifted and I inserted a jingle to were to buy the music.

Interms of mp3 song file being adverstising for you? I disagree with that approach, I sell my mp3 songs for .70 cents each and people prefer to buy the downloads for the digital delivery I have on my site.

Releasing sample of your music via p2p or one song full is an option but I say the mp3 file is the product and I have proof in sales to back that up.

If I download a mp3 song I am not thinking of buying the CD I just feel wow what a great song I will look for more free songs. I think you have to see that the audience is cool with having the mp3 file. Mainly it is price of that file that is the issue.

And radio forget them until they can see that they need the content but when you have 4.5 million eyeballs and mouses clicking to download content on Kazaa I say try to seed you music there. It will be on their hard disk so that they can reshare it and hear as much as they like try that with the radio station

mywpmusic, most people don't think like you do when it comes to downloads. If you can make a profit from your mp3's, that's great. It just goes to show how gullible some people are.

A long time ago, before I really heard any "em pee threes", I thought the same as you, mywpmusic. Sure, I bummed a few music tracks off of friends that had them. Eventually, I had a few hours of music, so I occasionally set it up to just play them all. Boy, what a mix of quality (and I use the term loosely). Yes, music compressed in lossy format can still sound "good", but with quality music, there's a world of difference between an "mp3" and the full, uncompressed song.

I won't pay for lossy files. However, they might encourage me to purchase the "full version" if I like what I hear.

Back up the bus. You are taking this down a side road.

mywpmusic, we have a difference of opinion on how to pursue our marketing. I'm only charging $5 for a CD right now (if Ice-T can do it, so can I), so 70 cents a song seems high.

But that's beside the point.

kneo24 and WeedWhacker, while both appearing to have good intentions, are now on the issue of the quality of mp3s and whether anyone should pay for them.

This isn't the point, either.

And I don't even want to know if it's morally right, either way either of those two arguments fall. It doesn't matter what any of us think.

I've got a guy here asking me to enter into a business agreement. If it was Tom Petty, he would have no choice but to pay Tom.

Since it's me, and I don't belong to the RIAA, it's my choice whether he pays me or not. I can be stubborn and say, "No way, man. I don't need you." and walk away.

But now I have to pay for play. That seems illegal to me. If I do it anyway -- I either want the exposure or because I'm a complete dumbass and think my work has no commercial value -- has a law been broken or not?

If it were a traditional, terrestrial broadcaster, the answer would be yes. No question.

What is different?

This is not a hypothetical or rhetorical question. It is real life. Today.

But it's 12:18am with your last post. Not all of us are night owls.

I have no clue whether or not a law is being broken if you pay for the virtual airtime. ISP's are charged for bandwidth they use, so I'm not sure why playing your music over it, and charging you is illegal; when the other is not... Ah hell, it's early..

Back to bed...

Sorry, but it's only 10:30 in Phoenix.

If I don't waive my royalty, they have to pay me to play my songs. It's the law.

How does waiving my right to be paid translate into a bill for the privilege? If it's not legal on the radio, it should not be legal for webcasters.

My songs have the same damn rights as Tom Petty's.

Hey I am not sure what is the best model as there are no rules if there was a standard price out there I would be with it. But I see people all the time using mp3 players even in Bali, here you can get a mp3 player you can store 6 hours of music people are buyng it right? Look a tthe Apple Ipod. So what I am thinking like myself I have a mp3 player and I am cool with the mp3 file playing in my portable player. If the CD is what they want I offer both on my site for sale you can buy the mp3 download and or the CD for audio quality.

What my point is that what you are seeing and what cosumers are thinking seems to be on 2 levels. I offer choice to be safe so that if people want the mp3 file they can get as I see that the mp3 file is not a promotional tool but a product that can be sold to people. I use Kazaa and other networks to seed my music for promotion through filesharing.

I think that to me why deal with the radio station that is willing to play your music or fee. they are playing on simulated you need me vibe. I have stations playng my music and asking me to send more music CD and mp3 file for the webcasting. However I feel filesharing is the better ticket as I can reach more targeted fans than radio. So I rather spend my money on something more effective and there is not the worry of if it is legal.

Ice T is a artist who is trying to regaine his mainstream pressence and if he wants to sell his CD at $4.99 that does not say that he is the standard. At the moment I think you cannot put a price on what people are willing to pay for music. He (ice T) could not give me his music fo free as I have no appreciation for his music. Not to say his music is no good I think he is cool but since I am not into him his music is worthless. You may hear my music and say man this sucks I would not pay 2 dead flys for this shit!

But if you did hear something that you liked very much then you wonder well what is the price and if that price is not out the wazoo you would do it as you feel that is something that was special to you and you want to have it.

That is why some people are will to see a certain artist perform and others are not into it at all. I price my music at $8.99 per CD and 14.98 for 2 CD Special and I have mp3 downloads at .70 cents each. First i give my fans the choice if they want the audio quality get the CD if they want the song now and want to play it in there mp3 portable player. It is up to them.

I don't think people are gulable I think they feel the music that I have an value my music as a true fan. That is why some radio station are saying hey man you are one of the best smooth jazz artist and others may not even write me back!!!

But for sure I am not paying for any air play and I do not beleive in giving the whole mp3 file away my samples are 2 minutes that is enough for a listener to get the vibe of what I can do as an artist.

Personally I think we as Independent artist spend to much time focusing on what the RIAA is doing and we are actually in the position of power if we can just organise. What is the RIAA? An organisation right? That set the standards for the Major labels. Well what if we organised and had a Branch for indie artist.

Then we could trade marketing data and set the standard price do media marketing so that consumers are aware of us. We as indie artist also should work closely with the electronic frontier and other consumer digital rights groups and come to a deal that can stadard all this online system and make a indie official charts and all that!! If we can stop thinking about Apple and Universal deal then we can focus and they will be more worried as we are more than them in numbers!! People power and then people will have the choice to buy indie artist and signed artist will take note to our organised approach!!

Just my opinion I am not saying I am right or wrong here but would like to work together as a team with all of you to figure out how we can make this into something that we can all win and take care of our families and live off our creations

Sorry for any mispelled words not good speller and typer either

I'm all for that. We do have them outnumbered at least 10 to one. Let's make a new level playing field.

It's going to be a delicate balance, you realize. We have to come up with something that does not resemble price-fixing or we're just as bad as they are.

And Sony's CEO is quoted today as saying that mp3s should be 10 or 20 cents for downloads, so someone is starting to whistle a new tune already.

Is there a way to find out what Joe Consumer thinks is fair without calling 12-year-olds? That seems like the most logical place to start.

Or Jane Consumer?

Maybe we could establish a "reasonable average" of the value of an mp3 download. But we gotta know what the public is willing to pay for.

Ugh.

http://www.wsu.edu:8080/~brians/errors/silicon.html

Hey this is great!! So how do we find out how to survey the consumers that is what is needed to bridge the gap between the Indie Artist and the buyer.

Maybe we need to survey here what we feel is a good rate. I am starting to see that by the looks of Sony making that statement that we can do this without the RIAA We just have to be as focused as they are about our business and show the consumer we are fair and just!!

I will try to write to the music consumer groups and see if the would be interested in bridging the gap between artist and fan. We can make a direct link we have all the digital tools to do so

Kewl thought ... Webcasting needs to meet new highs.

Time's a changin', Boys.

Still, 70 cents is a bit too high. I wouldn't be willing to pay more than 25 cents for a download, no matter who the band was. Like I said, people are gullible.

You know, I don't care if I get paid for the plays. Anyone knows that if you are getting played, you have more chances to sell an album. As far as I'm concerned, I put my stuff out there for free....advertising for me and dmusic...or whomever....

showboat, Now that you clarified my spelling error, I would assert that the title still stands.

You draw your line wherever you like.
I picked silicone.

I could draw on that stuff all day long and not get bored.

Besides, you gotta advertise somewhere.

Elu, neither do I.

But I'm willing to put aside my perspective for a moment in an effort to create a dialog aimed at looking forward to "what do we do next" as opposed to arguing amongst ourselves about who has the best idea.

The true solution must eventually embrace both positions.

So right now, we have a low end -- free; and we have a proposed high end -- 70 cents;
and kneo24, representing the consumer, has offered 25 cents as the top of his range.

mywpmusic asserts that his 70 cents is legitimate because he is already selling them for that. That's hard to argue with.

On the other hand, I'm giving away mp3s for free. And people are downloading them. My method requires the customer to actually buy my CD to pay off. That has begun to work, too, but only when I can draw a boatload of people to my site all at once.

What about the 2 minute samples? Incomplete songs. Or maybe songs with ads at the end?

Okay George, here is another consumer opinion for you.

I would never pay 70 cents for mywpmusic's songs unless I was really desperate for his music. I would be willing to pay 25 cents for an mp3 file, but not if it was only 128kbps. I agree with your opinion that these are substandard and should be considered ads. The bitrate would have to be at least 192kbps for me to consider it worth purchasing.

Also, consider this, mywpmusic. Many people are willing to pay $1000 for a $200 generator after a devastating storm, because it is something they feel they cannot live without. That doesn't necessarily provide a legitimate reason for a hardware store to price them so.

If you have fans that love your music so much that they feel they can't live without it, they are willing to pay 70 cents per song for it. But, you have to ask yourself whether you are doing these fans justice by charging these prices.

From another perspective, you also have to wonder how many more people would like your music well enough to pay 25 cents per song, or even 50. You may cut your per song profit by as much as two thirds, but if you end up selling 10 times as many mp3s, keeping in mind there are little or no additional costs per mp3...well, you do the math.

Again, that's just a consumer's opinion. It's your music, so you are free to charge what you like. You're the one holding the monopoly on it.

But, we are getting off track again. The whole point of the article is about webcasting "payola." I don't listen to broadcast radio at all and one of the reasons is because I don't agree with the whole Clear Channel pay-for-play sceme.

I think if the RIAA can argue that real world rules must be imposed on the digital world, then that should apply to payola as well. If the current payola laws don't apply to webcasting then we should lobby to have the laws altered to include it. That's was the RIAA did with royalties, so there has already been a precedent set that supports this position.

Like you said, they make money from selling advertising. Without the music, they would have nothing to entice advertisers. They are trying to have it both ways when they charge to play content.

Me...I choose not to listen to these webcasters for the same reasons I don't listen to Clear Channel's stations. Maybe you could provide us with a list of pay-for-play webcasters, George. That way we know who to avoid.

musicwantsto -- I don't want to use anyone's name until I have answered the question of whether or not it is legal. Ignorance of the law is no excuse, you know. I'd hate to make a false accusation, just as much as I would hate to enter into an illegal activity.

I mean, if it's perfectly legal, we're back to just debating whether it's a good idea.

The problem is that not only can none of you answer my question, but no one else will either. And I mean no one.

Yesterday, I wrote to the mayor of Tempe, Arizona, which is where I live. I posed the question to him. He did not answer.

So I called the City Attorney, since both myself and the webcaster are in Tempe. Am I breaking the law if I do business with him? They suggested I contact the Arizona Attorney General's office.

The Ag's office informed me that there was no way anyone would give me a legal opinion. I should contact an attorney, I was told.

Gee, I thought that's who was at the Attorney General's office. Evidently not.

So I called the Tempe police. They said to call the FBI.

The FBI said they were far too busy with terrorism and Syria to waste their time on this and that I should call the FCC. When I pointed out that they had time to arrest college students for listening to music, they hung up on me.

I called the FCC. No one there had heard the term payola before. They suggested I call the Federal Trade Commission. "Payola" is not listed in their database. They don't know what it is, either. Again, I was urged to contact an attorney.

So I called Orrin Hatch's Washington, D.C. office. Despite the fact that Senator Hatch had promised a Senate Judiciary Committee on this topic, the people in his office were not familiar with the term "payola" either.

But they put me through to the Judiciary Committee. Again, "payola" was a foreign word, which makes me wonder if Senator Hatch has been completely honest in his earlier offer to hold a hearing on the subject, since no one understands the meaning of the word.

Since John Kyl is one of my Senators, and he also serves on the Technology Committee, I was transferred there.

The person I spoke to there DID know what "payola" meant. One in a row.

But the Technology Committee is really focused on terrorism, spam, and privacy issues. They had no advice either, except perhaps to talk to a lawyer.

Ignorance of the law is no excuse.
No one can tell me if this is legal or not.

I'm thinking that I SHOULD pay this guy to play my music and immediately take him to court for doing it. He seemed like a nice guy. But I warned him that I thought this was illegal. He says it's not.

That may be the only way to find out.

Oh yeah, one more thing. The Technology Committee suggested I bring this up with the U.S. Copyright Office.

Well, I'll see if I can bring it up at the DMCA hearing on May 14.

I just hope THEY know what payola means.

Well I am open to all these suggestion I am even considering trying the .25 cents after more research to support Kneo24 theory maybe he is right and I could increase more sales that way. I think it is a great synergy as I think we all have a valid point I think that I am always looking for a good feedback and what can help indie artist and consumers closer.

I think I will do allot more research and see what is the best deal. As there are no rules at this new business yet. I know I have sales at .70 cents and that does works but if I can increase my sales by lowering my download price I will give that a try too.

What about the 2 minute samples? Incomplete songs. Or maybe songs with ads at the end?

I do the 2 minute samples I feel that it is a requirement as people do not know me as I am not a famous name. So I do not want them to get a 30 sec and then the song was not right. But I do streaming from my website at 32kbs sample rate with windows media player so that it is not pirated. But I feel that it is important for the fan to know my music!

For file sharing I put and ad at the beginning of the 2 minute sound clip. You can download it for the concept listen on Kazza just search for Marcus Williams and you can download a sample and hear the ad.


I would like to thank you all for this chat as well it is very constructive and I am learning a great deal from this and felling even more encourage about the future of online music as weare starting to think in a uniformed way the consumer and the artist

Marcus, I think we are on the right track with this.

But I don't want to discard the original thread and here's why we have to concern ourselves with the answer to this question.

The possibility exists, and this is purely theoretical until I say it because I know the Wicked Witch looks at this stuff. How do you think that CNN story changed right after we spotted it?

It had been like that for 6 days. We all manipulated the media and the RIAA into proving they ARE paying attention to us. Very close attention. They just don't want to admit it.

Like you say, we vastly outnumber them.

If we waive our royalty and pay for play, and it IS illegal, then cannot the Humanitarian of the Year (NARM award -- we should think of something besides t-shirts to sell while we're developing the plan for the new millenium) take each one of us to court for participating in the violation of a federal law? It could happen.

And you know it. It's such a Hilary kind of thing to do. It would punish both us and the webcasters who choose not to use major label music.

Fortunately for all of us, the people at John McCain's office DO know the meaning of the word "payola."

They thought this was a good question. I had to fax a formal request, with a signature, but they promised to try and find the answer.

Which is the most positive response I've received to date.

And I hope the FBI never calls me. Cause they've got one hang-up and "kiss my ass" due to them already. Fucking Bureaucratic Incompetence.

One more thing and I'm going to disappear for a few days. Just have a few things to catch up on before I start gearing up for the DMCA hearings.

As we can see, it only took two days to find the correct way to introduce a question to the government. Unfortunately, it requires being told to go away numerous times. But with each step, the growing list of people who have referred you to someone else begins to illustrate how complex the problem must be.

Because none of them knew, either.

I'll make a new post when some answers come in, which I expect won't be until Monday, at the earliest. And it would be a real surprise if I hear anything that fast.

Someone should take the new discussion that was born in this thread and either submit an opening opinion as a news story, or maybe start a forum for the topic.

So far, we still control the Internet, whether Hilary likes it or not. Put it to work.

You get started with that. I'll keep the RIAA distracted with other issues.

They already can't keep up with what I'm doing. By the time they acknowledge me, there will be too many questions to answer. You've all been so helpful with that.

I know you guys (and gals) are out there. I know you're listening.

On Monday, let's begin to kick some ass.

I SWEAR that this is the last one.

You see, if it IS legal for the webcaster to charge us for advertising -- whether we choose to pay or not -- then an mp3 is an ad.

If an mp3 is an ad, wouldn't it be a teeny-tiny bit more difficult to prosecute those students at Princeton and Michigan Tech?

Surely it's not illegal to distribute free advertising. Most companies pay people to do that. Some of them call it "independent promotion" or "street teams".

If I forward you a copy of a funny ad, have I hurt the advertiser? Or have I done them a service?

Are you going to sue me for it?

No, besides you, Hilary.

That doesn't change the fact that silicone is what you squeeze, not what you play Quake on.

if everyone started sharing freshly ripped wave files, then the RIAA's "perfect digital copy" claim would be correct. MP3's will always be lossy. Far from perfect.

Okay, I should have looked it up. I said you were right.

Like I said, you draw your lines on silicon, I'll draw mine on silicone.

I don't play Quake. But silicone is more fun than Silly Putty.

And you CAN draw on the packaging.

Actually it is illegal to distribute free advertiseing without permission. Adverts are still copyrighted.

Lossless files over p2p systems are not quite possible yet, but with the increaseing popularity of broadband it may be edventually. A fake-filtering system, even a simple one, would help too.

Of course, when DVD audio finally becomes popular (it will - how could the RIAA resist an encrypted disc?) someone will just break the encryption and put the streams straight on the networks

The only problem that I see with the problem presented is that the "majors" have the crap that everyone knows, because it's been forced down their throats (ears) every time they use the radio. Thus, it seems logical that webcasters would be willing to pay for the "privilege" of playing MafiRIAA stuff due to the "risk" of being ostracized because of the lack of regconition of the independants.
Personally, I'm getting so sick of the mainstream, uh, music, that the only station I ever listen to is the public news radio. For music, it's CDs that I find, currently electronica-type stuff, but even Paul van Dyk gets a little old after several hundred spins. So, you need to find an avenue that disgruntled music fans will find, accept, and hopefully, support.

Advertisements placed in sample mp3's are useless and only further to piss people off. I don't like samples as is. You can't get a real feel for the song unless you hear the whole thing. There's plenty of songs that start out sounding really great, then they just turn to shit.

Rather, provide some low quality mp3's for free, that are the full song. If they want it in better bitrates, then charge them. Charge them for the good stuff.