OiNK was right and wrong, but there’s so much bullshit flying around on both sides that taking the time to call all of it will take longer than reclassifying your entire music library by legality. Sure, people do “buy the CD,” in the words of Alan the admin, but if you believe it’s actually “a lot,” we’d like your signature on this medical marijuana petition, too. The traditional press accounts have been riddled with errors, and every single possible analogy is being trotted out as ammunition for bloggy showdowns either way, despite the fact that argument from analogy is one of the weakest kinds of argument there is. Whatever side you’re on, whether you were a member or not, one thing that’s beyond all argument is that OiNK was remarkable, an incredible musical library of with more breadth and depth than any other — that happened to be (probably) completely illegal. It was too awesome for anyone, copyright cops included, to think that there will never be another one, or another one after that. We have an idea, though, for making sure the next one lasts.
During the early years of the United States, books were not widely available. Standard English reference works were expensive and difficult to find: they had to be shipped to the colonies from Europe, and the average person could not afford to purchase the books that well-rounded intellectuals thought worth reading.
In 1731, Benjamin Franklin convinced members of the Junto, his ?society of mutual improvement,? to pool their resources and purchase a collection of books none could have afforded individually.
OK, maybe it wasn’t the first public library, like they told you in school, but what they definitely didn’t tell you is that the United States was the biggest pirate country in the world back when Ben founded that library. Even after they passed the first copyright law in 1790, it only applied to domestic works. In other words, 97% of English-language literature was fair game, and American publishing started as a pirate industry, sort of like Hollywood — which is why you’ll find the Lars of letters putting lengthy rants about copyright in Nicholas Nickleby’s mouth. It’s hard to imagine libraries (how many times have their CDs been ripped?) starting in their current form in the modern copyright era, and like we said, argument from analogy, etc., etc., — so how can we possibly create a legal OiNK when actual police are actually interrogating its founder?
First: Do we need to? Streaming albums, mp3 blogs, aggregators, your various and sundry spaces and sters … how can you complain that you need to “sample” an album when there are so many ways you can hear it? Considering workplace internet usage monitoring, or the relative acceptability of sitting at work wearing headphones, etc., for those of us without the luxury of working with music all day, being able to get a feel for whether or not you like something often means being able to put it on an iPod and listen to it in the car or walking around. (For those of you over 40 who are appalled to even consider listening to music at work, consider that Americans work longer hours than ever, and commute longer than ever, so having a leisurely Schaefer by the hi-fi is harder than ever, too.) Some kinds of copyright-protected portability exists, but it’s a hodge-podge of formats and devices with smallish, varied selections, which looks that much more diminished alongside the existence of all music in one simple, portable, universally-supported format. What you’re selling is (shit, another analogy) pretty much abstinence sex ed.
So: It’s not hard to think of a framework for a legal OiNK:
- You pay by the bit, so you’re charged more for FLAC, less for 320kbps mp3s, and even less for 128kbps … maybe that’s free, if you keep your ratio above a certain level. In fact, maybe your ratio is a coefficient on what you pay. 0.25? You pay 4x the base rate. 1.25? You rock — have some cheaper music on us, for making the service better.
- Artists/Publishers can upload or claim albums, ASCAP/BMI (or whomever) holds money for the rest that are still under copyright. They already do this — if we license some weird old track, they sock it away until it’s legally claimed and handle the accounting. If someone uploads a 7″ that Mustard Plug completely forgot about, it’s obviously particular to that artist, and there’s no need to worry about where it came from; just charge people who download it by the bit and let the paralegals at ASCAP make some calls.
- Hell, for fun, you could even credit people by the bit for uploads, if you want to make sure every recorded song ever appears overnight. Downloads would far exceed uploads and it’d be cheaper than outsourcing it to Asia.
If they were smart, rights holders would drop the charges against OiNK-the-admin in return for building something like that. Of course all the majors will try to fuck it, because no one will go through them for releases anymore, but we’d sell it to them by saying, “You like iTunes ruling your future? Do this and Steve Jobs will collar himself and hand you the leash.” iTunes doesn’t work through the browser, and that makes it the loser in this fight, because there’s such a huge community working on browsers, tools, sites, etc. that Apple can’t possibly compete with. The majors own the back library, which will more than fund their operations while they figure out how to make themselves an attractive agent for new artists, to keep them from simply uploading their own music and keeping the profits to themselves.
Some of you might remember hearing that Napster 1.0 tried something like this in their last days, only to have the industry walk away:
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 — including the CEO of Universal’s parent company, Edgar Bronfman Jr.; Sony Corp. head Nobuyuki Idei; and Bertelsmann chief Thomas Middelhof — sat in a hotel in Sun Valley, Idaho, with Barry and told him that they wanted to strike licensing deals with Napster. “Mr. Idei started the meeting,” recalls Barry, now a director in the law firm Howard Rice. “He was talking about how Napster was something the customers wanted.”
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. “The record companies needed to jump off a cliff, and they couldn’t bring themselves to jump,” says Hilary Rosen, who was then CEO of the Recording Industry Association of America. “A lot of people say, ‘The labels were dinosaurs and idiots, and what was the matter with them?’ But they had retailers telling them, ‘You better not sell anything online cheaper than in a store,’ and they had artists saying, ‘Don’t screw up my Wal-Mart sales.’ ” Adds Jim Guerinot, who manages Nine Inch Nails and Gwen Stefani, “Innovation meant cannibalizing their core business.”
Fine — make the FLAC downloads cost $25.99, or whatever CDs cost in stores now, and tell Darryl Worley to tell Wal-Mart it’s not a copy of the CD unless it’s fully lossless. Audiophiles have money to burn, anyway. What have you got to lose? Just because you didn’t cannibalize your core business doesn’t mean someone else didn’t eat it. OiNK is something your customers want. Drop the charges against Alan Ellis if he builds you a for-profit OiNK and we promise not to use another non-profit one.