David Lowery: Silicon Valley must be stopped, or creativity will be destroyed

Silicon Valley's making money off the work of others. David Lowery is on a crusade for copyright, fairness and art

Published December 4, 2013 12:00AM (EST)

The Beastie Boys    (AP/Michael Wong)
The Beastie Boys (AP/Michael Wong)

David Lowery, the frontman for the bands Camper Van Beethoven and Cracker, has become perhaps the most assertive and polarizing figure in the movement for musicians’ rights in the Internet age. Between his appearances onstage leading his bands – both of which recently toured -- speaking to the business-of-music classes he teaches at the University of Georgia, and the blog he helps run, the Trichordist, Lowery works to stop the exploitation of artists. Sometimes, he’s downright angry. “Once the cobra bit me, I might as well just eat the cobra,” he told the New York Times. “Nothing worse can happen to me.”

Lowery spoke up a few weeks ago about lyric sites that make money off posting song lyrics without paying songwriters. This week he's frustrated by the video for GoldieBlox, which makes toys for intellectually ambitious girls: The video shows the little tykes playing with an elaborate Rube Goldberg device, to the tune of the old Beasties song “Girls.” The lyrics to a song that once celebrated girls for doing the dishes and laundry now describe them as building spaceships. A triumph for the self-image of young females? Maybe, but since the Beastie Boys have a long and strong policy of not letting their work be used in advertising – something written into the will of Adam Yauch, who died last year – it’s a bit awkward. Doubly awkward is that GoldieBlox has sued the band in a declaratory judgment. (The two sides have since apparently come to agreement.)

We spoke to Lowery about music, technology and politics from his home in Richmond, Va.

Let’s start with the Beastie Boys and their tussle with GoldieBlox. There’s been a lot of debate on this in terms of sexism, parody, gender roles and so on, but it’s also an issue of copyright and intellectual property. So: Were the Beasties ripped off here?

Yeah, I think they got ripped off. Let’s back up. GoldieBlox appears to me to be a well-lawyered Silicon Valley, angel-funded start-up.

This is not a feminist nonprofit.

It’s a commercial business. Even the pirate parties of Europe will say that a commercial use of a song is where copyright kicks in. They’re the most anti-copyright people you can get, and yet they reserve copyright for commercial uses of a song. Secondly, it’s a parody. Now a parody is fair use – I’ve become a geek on copyright uses – if the intention is solely for parody. But if you’re making a parody to sell a commercial product, you are to the left of the pirate party, if you’re calling that fair use.

What makes a parody fair use?

Well, I’m not a lawyer, but I’ve played one on TV. I’m a copyright practitioner. But I’m 90 percent sure that I’m 90 percent righter than most people writing about this. A parody has to be about the song -- like, say, if you’re parodying a song, then the parody is about the song -- that’s the sole point of it. Not to sell a commercial product for a for-profit company. So you don’t take a parody of a song and sell Shell Oil, or you don’t parody a song to, for instance, advocate some position that maybe the Koch brothers want to advocate or that George Soros wants to advocate. It has to be specific. The parody has to be about the song.

This is a commercial use of a song to sell a product, which -- like I said -- even the Pirate Party, with their limited view of copyright, that is where they say copyright comes into effect. Secondly, the other thing about this that’s been widely misreported is that the Beastie Boys are not suing GoldieBlox. GoldieBlox is preemptively suing the Beastie Boys. One of the guys is dead, and apparently in his will it stipulated to continue the policy of no commercial use of Beastie Boys songs -- they had a long-standing policy.

We’re talking about Adam Yauch here.

Yes. Right. And it’s a band that’s been pretty rigid, and it’s kind of unusual compared to even ‘60s bands that claimed to be uncommercial and revolutionary. The Beastie Boys have been quite strict about not licensing their stuff and not letting it go commercials. So it’s kind of ethically awkward or nasty as well.

Let’s just zoom out a little bit to Silicon Valley in general. There’s Silicon Valley and then there’s a more radical, ideological version of Silicon Valley, and I think that’s what we’re dealing with here. This phrase gets bandied about called “permission-less innovation.” The idea is that you just do stuff without asking permission. In the down-the-rabbit-hole never-never land of Silicon Valley, they seem to present this unabashedly as if this were a good thing.

It’s good for them. Commercially, it’s good for them. Let’s think about it. Silicon Valley, there’s a part of it that has this notion of permission-less innovation, that they treat this as a good thing, but think about this as a civilian. You put your photos on Instagram and then is permissionless innovation just using those photos without your permission? Is permissionless innovation just using whatever you might have written on the Web in any way that any commercial entity sees fit? That’s largely what we’re talking about here.

The bigger fight here is that if they can do this with our songs, with our lyrics, then they can do it with your Instagram photos, they can do it with your Facebook profile, they can do it with anything you put on your Web page without your permission. That’s what permissionless innovation is. I don’t think the majority of people want that.

It strikes me that the people preaching permissionless innovation are the same people who work very hard to patent their software and their algorithms and things like that.

Yes. But, on the other hand, “permissionless innovation” is a favorite phrase of Google, and you see them in all kinds of patent battles -- like their Motorola patents -- with other companies. So, I guess, the big corporations get to have different intellectual property rights than artists or people who use Instagram or something like that. Do we want a world like that?

With GoldieBlox, though, this is a company that says, “Oh, we’re Kickstartering these girls’ toys,” but then they go and preemptively sue the Beastie Boys using a really big and powerful law firm. This isn’t David and Goliath, but it’s been represented that way. People need to pay attention here. Why do these things happen this way?

I think Silicon Valley has gotten a pass on this. Most companies in other industries have; you think about oil companies funding global warming sort of studies that cast doubts on global warming, things like that, that are subject to scrutiny. But I think Silicon Valley in general has gotten some sort of pass from the general public and the press in general on these kinds of issues. And the end goal is not -- they’re not Camper Van Beethoven lyrics and they’re not Beastie Boys songs -- the end goal here, the end zone is when they get your data: your Facebook photos, your Instagram photos. When they get to you and do that as they see fit. We’re going to wake up in a world one day where we look back and say, “What the fuck were we thinking?”

Let’s talk about lyrics, specifically about lyric websites. You’ve urged the shutdown of sites like Rap Genius --

No, I urged licensing.

Licensing, OK. There’s been a shutdown order, I think.

I haven’t done anything.

I’m talking about the NMPA.

But the NMPA has basically put websites that were from my list, from my study, sites that appear not to be fully licensed, that are using artists’ work. I published that list and then the third time I sort of published it, the NMPA would take this list and basically tell these sites that they needed to become licensed, or, if they didn’t become licensed, they would move to shut them down. I’m not personally urging this action.

The other side of the argument says that people have been trading lyrics, scrawling them down from the records for decades, this is fair use ... Why does this battle seem worth fighting to you?

These are commercial. All of the sites that are on my list appear to be commercial endeavors; they’re making a profit, or they’re attempting to make a profit, or they’re raising venture capital. Rap Genius, which is at the top of the list, is a very popular site -- interesting site, I have to admit -- but they got $15 million of venture capital from Andreessen Horowitz, which is a venture capital firm in Silicon Valley. They obviously intend to make a profit if somebody’s investing $15 million in them. If they’re making a profit from our work, at the very least we should be asked permission to use the work. This is just about common decency, consent, any number of things that go along with what we normally think of our great just and fair society. That’s what we’re asking. If that involves paying a small royalty or a big royalty, let’s work that out. Like I said, even the Pirate Party says when it’s a commercial venture, that is when -- even the most radical anti-copyright people agree that if it’s commercial, those who create that content have a right to profit or have some sort of say over how their stuff is used. Silicon Valley is to the left of the Pirate Party, apparently. Oddly enough.

One of the unlikeliest foes of the argument that people like you and David Byrne make is Dave Allen, who was the bassist for a Marxist rock band (Gang of Four), and once upon a time, I think, a critic of Spotify. What do you make of his point of view that musicians need to adjust to this brave new world, they need to start making revenues in new ways. Where does he seem to be coming from?

But we have adjusted. We are making revenues in new ways. I think he’s an advertising executive. He’s on the board of Cash Music, which admittedly accepts money from Google. I think he speaks from his commercial interests. I can’t be sure, but to me it looks like he speaks from his commercial interests. Look, to call David Byrne a Luddite is ridiculous. David Byrne has been one of the most forward-thinking, innovative artists of our generation. Just because his view or my view of how our technological future looks is different than David Allen, that doesn’t mean you’re against technology. We have differing views of the future, our future world, our future of how we use technology.

You talked about your geeking out on copyright a little bit. One of the best books on this subject is “Freeloading” by Chris Ruen. He talks about the way copyright needs to be vigorously policed and enforced but also suggests shortening copyright to 50 years. He and others have pointed out that “Happy Birthday to You” is not in the public domain, it goes back to the 19th century, but it’s going to be owned by Warner Bros. for years to come. Are you persuaded by the fact that copyright could be shortened a little bit to 50 years or, say, artist’s life plus 20?

Sure, and there’s a legitimate argument in there. But the big emergency isn’t that people have to listen to a different song than “Happy Birthday” when they’re in TGI Friday’s, right? That’s not a major cultural four-alarm fire.

Fair enough.

That’s essentially the emergency versus a 64 percent decline in recorded music revenue to musicians, a 47 percent decline in artist employment. Yes. That’s true. But the four alarm fire isn’t the length of copyright. The four-alarm fire is that large, multinational corporations have figured out ways to monetize our music, our lyrics, without cutting us in on that. The currency of page views, the currency is you can set up a website that has the top 20 song lyrics, charge advertising on it, do your SEO right and you’ve got a top 500 Alexa website and you generate revenue from that. And you don’t cut in the artist. So this is kind of like the old music business of when the artist would sign a contract and they wouldn’t get any royalties; it’d go to the record companies and you’d ask them “where are my royalties,” and the record company would say, “Hey, here’s a Cadillac.” This is the same, old-school music business, except you don’t even get the Cadillac.

The way you’ve described it strikes me as right, the way the world has been redrawn without any revenues going to the artist. What if one of the labels or all of the labels or one of the organizations had, around the time of Napster, put together something like iTunes, come up with some kind of technological new model so that the revenues didn’t all go to iTunes and everybody else. Would that have been better? Might that have improved things significantly, if the labels had been more alert?

I love the story. I believe the story for a long, long time. Remember, I was one of the pro-technology artists. “No, we’re going to give this away to our fans, let’s put this on our website, let’s put this stuff on YouTube.” Slowly over the years, I realized this wasn’t working. So I started out and for a long time blamed the record labels, that they didn’t come up with a good technological solution. But here’s the thing about that that’s really interesting: as soon as Apple proposed [iTunes], record labels took it. Record labels are essentially a basket of a zillion contracts they have with a zillion different artists. For them to propose something like this and then for them to get all their artists to sign off on it would’ve been impossible. That’s basically the story I’ve heard from people who were in the business at the time -- and I remember it. I remember the conversations. I was on a major label around the time this was all happening. “Let’s come up with a way of doing this,” “Yeah, but managers are never going to let us do this.” You had to have an outsider propose it. As soon as an outsider proposed it, it was like you’re either in or you’re out. It came to fruition. The record labels were supposedly dragging their feet on this, but I can’t even say that’s true anymore, the more I think about it, the more I read about it. And just because somebody is stupid, does that mean you rip off their artists? Because the boss of Starbucks is dumb does that give you license to steal the Starbucks employees’ tips? We’ve got to think about the rationales we’re going through here -- they’re weird.

Yeah, I think that people who say that think of the artist as being the collateral damage in bad thinking by the labels. They don’t think the artist deserves to be screwed but they say it was the labels that dropped the ball and the artists paid the price. The same thing happened in my business -- newspapers.

There is some truth to it, but I think if you really just think about it, this is what happens when new technologies come along. The incumbent industry is going to be bound by all of its old contracts. The same thing happened with phonographs. The old Tin Pan Alley publishing business. It basically took Teddy Roosevelt to institute a compulsory royalty for the songwriters on phonographs to sort it out. They had the same problem too.

People sometimes use the Industrial Revolution metaphor. They talk about how factories replaced the artisan and the farmer, and it took decades for things like child labor, dangerous working conditions, and pollution and all the stuff that industry brought to Britain and the U.S. to be eradicated, or made humane and sustainable.

But whenever anybody -- I mean, you’ve just brought up David Allen, and we’ve just posted this idea on my Trichordist blog that we should have an ethical, fair-trade Internet, but you’ve got people like David Allen saying you can’t have that. That would be like in the Industrial Revolution saying, "You can’t have a non-polluting factory; you can’t have a factory that doesn’t have child labor; you can’t have a factory that’s safe to work in." Of course you can! We’re the fucking masters of our own destiny, we pass the laws for this country, we create this country, we decide what kind of a society we’re going to have -- not the Internet. And, besides, the Internet is coded by humans. We can make the Internet do what it needs to do. I’m a technologist. I program computers. This is what I did before I played in bands. There is nothing deterministic about the Internet. Basically, what these people are saying is that this is the first technology whereby we must change our principles to match the technology -- that’s what these people are saying. Do you want to live in a world like that, with these people running it?

Let’s talk about Spotify, Pandora, etc., for a minute. You and others like you have complained about them for a while now, and it seems like frustration is building over these services. Do things seem to be getting better or worse from your point of view, and do you think there will come a day when musicians will just en masse pull their stuff off these sites?

I don’t know if artists will pull them en masse off of these streaming sites, but these streaming sites are based on kind of a weird concept: that every song is of the same value. In a normal economy, specialty products often cost more than mainstream products. You go and get a sweater at Wal-Mart and a little camo fleece at Wal-Mart and it’s pretty cheap and then you go -- and I’m not even talking luxury goods -- and get an Australian oil jacket, like a sheep herder's jacket or something that I always wear outdoors, that kind of product, and it costs like five times as much.

But the Internet has leveled a lot of things. They’ve taken away the distinction that some things are worth more than others.

Yes and no. Here’s the thing people don’t realize about streaming and webcasting: Streaming means you can play it on demand, webcasting means that you sort of get to pick a genre. Those both have these compulsory, government-mandated-type licenses, whereby the songwriter must allow these services to use their song. But this is a really weird thing for the United States, the bastion of capitalism, to implement. I thought, “Oh, they did that because everyone else in the world does it.” No. We’re the only fucking country in the world that does it. Somewhere along the way we decided we wanted to have a webcasting industry and a streaming on demand industry so -- I’m talking about songwriters here -- songwriters themselves cannot remove their songs from these services.

There is a nuclear option: You can drop out of BMI and basically give up trying to have anybody collect your royalties. You can drop out and essentially have to collect your royalties from everybody yourself. Essentially, the government mandated the use of our songs to webcasters and on-demand-streaming. They set a price, basically. So all songs are the same price and everybody gets access to them. OK, so maybe that’s OK.

But think about it in terms of television. Would HBO make “Game of Thrones” if the government set the price for how much they could charge for it, and every competitor network -- Showtime, AMC, the Garden Network, SciFi, Comedy Central, NBC, Fox -- they all got to show the show at the same time? That’s what they did with songs, right? So they’ve completely flattened our business model. There is no business model. There’s just this pittance that the government mandates that we songwriters receive.

What gets confusing is that there are performers and then there are songwriters. If you own the recording of the song, you can pull it off the streaming services, but not the webcasting services. But you have to own all the rights -- you have to be your own record label, you have to own the recording, and you have to own the song. So some people have pulled their own songs off Spotify.

So here’s the solution: Let’s get rid of this compulsory license. It’s as simple as that. Republicans can agree to it because it’s a matter of letting free markets be free -- freedom, right? Freedom fries, freedom songs. And Democrats can all get behind it because it’s fair. Just let artists opt out of services. The entire webcasting/streaming compulsory licensing thing was a subsidy designed to jump-start a webcasting and streaming business, which happens to mostly be based in Silicon Valley again. So we’re now subsidizing one of the richest segments of this economy that doesn’t need a subsidy anymore.

It’s a bit like our farm-subsidy policy, isn’t it?

Yeah. And what do they teach you in economics? When you have regulations like setting prices and such like that, as a business the rational thing for you to do is try to manipulate the government apparatus that sets those prices -- that’s what you should be doing as the CEO of a company. I can’t even get mad at Pandora for doing what they’re doing, because that is the rational thing for them to do for their shareholders.

Right. A corporation is supposed to act in economically rational ways that maximize profits and shareholder equities, right? They’re doing what they were designed to do.

They’re doing what they were designed to do, so what the government should do is they should get out of setting those licenses and rates. Also, it hurts the services. Think about it: Spotify can’t have an exclusive on the new Lady Gaga record. They could; I mean, maybe Slacker radio wants to distinguish themselves by being the home for doom metal--we’re going to have doom metal bands and they’ll only appear on our service, but we’ll have that little niche. They can’t do that now. Everybody gets to play every song.

So I think what you’re saying is that the current system with these current subsidies discourages real competition, right?

Yeah, and all the services are exactly the same. They all will have to be the same. I like Spotify better because it has a different button, because the app has two pages and not six -- you end up inhibiting innovation in the technological space, too, by using these licenses. Bands are really innovative little economic units. It’s really funny. We don’t go on the road unless we can basically pay our bills; we don’t make an album unless we have money to make an album or figure out some way to do it. But we’re being told how to run our business by people who basically never made a profit in their lives and who will basically trick people into investing in their bad business model through government fiats. It’s just funny to hear the charge of “innovate” leveled against musicians; musicians are some of the most innovative little economic units there are in the U.S. economy.

The people you’re talking about are Silicon Valley types?

I’m just saying, yes, if you go to something like San Francisco MusicTech, you’ll have a bunch of people standing onstage who have never made a fucking profit in their entire lives telling me, who makes a profit year after year, that I need to change my business model and innovate and embrace technology. Fuck you.

I’d like to see that. So here’s my last question, and I feel like it kind of underlines a lot of what we’re talking about here: How important is it for musicians and other creative types -- writers, artists, etc. -- to organize somehow? A lot of creative people see themselves as rugged individualists. It’s a tough issue, might be difficult to make work.

As laborers, as session musicians, we’re allowed to unionize, but songwriters by law not allowed to organize. We make a product, so we can’t organize like unions. We can only organize as a sideman. ASCAP, which is a nonprofit that represents songwriters, has to operate under Department of Justice guidelines. That’s why people get to use our songs. By Department of Justice guidelines, we must let services use our songs while they negotiate a price with us. How the fuck is that supposed to work? How are we ever supposed to get a fair price that way? Here we are, as ASCAP, we have a 45 percent market share of songs, negotiating with Pandora, who has like a 77 percent market share of songs. Why are we protecting a broadcasting monopoly from songwriters who are less than 50 percent? Do you see what I’m saying? It’s really screwed up. So one thing that could happen is that in the Nelson Act, farmers are allowed to negotiate prices -- we could simply add songwriters to the Nelson Act. Add it right after farmers. There’s a one-word amendment that would help enormously.

I guess I’m asking more broadly too -- whether we call it unionizing or organizing more broadly -- I’m talking about people who make the stuff, people like you who write songs, people who play songs, people who write novels, whatever the content is -- does it make sense for some group that gives them leverage to negotiate with these huge tech companies? I’m thinking of groups like the Content Creators Coalition, for instance. Does that seem important and viable to you?

Yeah, I think so. I think we do need something like that. I think for it to formally negotiate, literally we have to get around the antitrust exemptions. We have to get an antitrust exemption for us to formally negotiate. By law all we can do is just sort of provide information and advice. If we organized a group like that, I think an organized group would be fantastic. My suggestion to the Content Creators Coalition was that they actually become a church and just have prayer vigils and stuff like that, just to get around all this stuff. But yeah, something like that is going to have to happen. But the first thing that can happen, though, is a much simpler step: we should amend part of the DMCA act so that once YouTube’s been notified that I don’t want my video on your website other than on the channel that I get advertising from -- well, no, that’s not a good example. Scratch that. Just simply with Pandora and Spotify, if we simply got rid of the consent decree that ASCAP has to operate under and BMI has to operate under, I think we could have some real negotiation there for songwriters. You could have BMI and ASCAP really be able to negotiate without a court setting the price or the Department of Justice looking over our shoulder and saying, “You have to let these people use your stuff while they’re negotiating with you!” What the fuck? How are we supposed to negotiate when they can use our stuff before we’ve actually negotiated with us? We have no hammer. We have no stick.

What will it take, then?

Allow us to opt out of webcasting and streaming on demand services. Give people a six-month notice. Look, I might leave my greatest hits on Spotify, because maybe those songs generate enough streaming revenue that I don’t mind it displacing the sales of that greatest hits album. However, the actual albums that came from? Maybe I don’t want that on Spotify. Maybe I want the people that are most interested in that to actually buy those albums. We’ve never told businesses in this country how to set up some scheme to monetize what they create. We’re just in a really weird time. We’re in a weird time.

By Scott Timberg

Scott Timberg is a former staff writer for Salon, focusing on culture. A longtime arts reporter in Los Angeles who has contributed to the New York Times, he runs the blog Culture Crash. He's the author of the book, "Culture Crash: The Killing of the Creative Class."

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