1.2. The Reality of Streaming Music on the Internet (webcasting)

Any webcaster who streams music to the public must pay the $0.07 royalty fee if they do not have a specific agreement with the copyright owner that specifies otherwise, the "statutory license" may apply by default, but there is no statutory ceiling and no floor government can impose on any artist regarding the terms and conditions of their contract agreements with others about their copyrights and their right to assign same - its a free market!

Government may rightfully regulate prices for things like gasoline or heating oil or electricity, essential goods and services that have a potential impact on the public welfare and when there is a compelling public interest to do so. It may also rightfully regulate groups like the RIAA when such groups have the capacity to adversely influence commerce through their size and power. The Sherman Anti-Trust Act was designed specifically for that purpose.

But music is one of those areas where government must tread lightly with regard to fixing or establishing minimum or maximum sale prices in the marketplace. Music is protected speech under the First Amendment of the Constitution of the United States, and government may not pass any law that would usurp the right of an individual copyright owner to sell, hypothecate, transfer, exhibit, display, distribute, or give their rights in their music to the public under whatever terms and conditions they choose.

There may be some precedent for government to enact a uniform minimum pricing schedule for all broadcasts and streams of the works of artists, and to make those rates "mandatory" in the same way it establishes mandatory minimum wage rates for workers, but such price setting minimums must be egalitarian, applying to all artists everywhere and not granting any special or preferential or unfair advantage to any group or class of artists. One of the primary functions of the federal government as outlined in the Constitution is to "control and regulate commerce" (Section 8, Clause 3).

So it is perfectly within the realm of government responsibility to establish minimum mandatory pricing models, if there is a compelling public interest to control and regulate commerce, to prevent the routine exploitation of workers by task masters who would work a desperate man to death for a bowl of rice a day (some artists I know). But this is not what the Billington ruling did, not what the law says.

1.2.1. The Cartel's Attempt at Monopoly Control of Streaming Music

The whole streaming media royalties system seems, as it is presently written, to be nothing but a government acquiescence to a grab by the cartel to control as much money from the CARP deposit coffers as it can grab, and it appears they have acquired control of it all through their unincorporated branch of the RIAA, SoundExchange. But these special interest artists groups, all more or less assenting to RIAA power (which represents the interests of the studios, and not the artists the studios exploit), no way represent the majority of performing artists everywhere. Organized labor has never represented more than 15% of the workforce even in the best of times. The RIAA represents about 2000 record labels releasing about 7,000 titles per year. ASCAP has about 100,000 members, and BMI has about the same numbers. Yet, there are millions of unsigned musicians in the United States alone who are not represented by any of these organizations. Empowered by the Internet and low-cost, high quality recording technology available to them, they are now beginning to compete with major record artists for market share.

Independent artists to mp3.com uploaded almost 750,000 independent recordings since it started just a few years ago. There are over 250,000 independent artists listed in the mp3.com database. If each artist records only one song per year, and many are quite prolific and record dozens of new songs every year, that's a whole bunch of music, much more than the combined membership of the RIAA could ever hope to generate in several decades.

1.2.2. The Copyright Reality that Will Not Go Away.

Any legitimate copyright owner, generally the author of a work, always has the right by law (unless they have signed away those rights to others) to independently and freely determine and include in their business plan and sales calculations the good and valuable consideration they receive from the promotion value that arises when the webcaster or broadcaster advertises their songs to the public by playing them on the Internet or the public airwaves and to make independent determinations about what those considerations are worth.

So if the author enters into an agreement with a net broadcaster that says in a contract, for example, that for good and valuable consideration received author hereby assigns the royalty free rights to broadcaster to stream and exploit and exhibit [title] music on the Internet without limitation for the next X years, there is absolutely nothing anyone can do about it. It is their right. It is their copyright. Stations are already rising that play the music of independent artist exclusively who provide waivers and these stations exclude the cartel artist who do not or can not provide waivers.

This is already the case with stations like GarageBand.com, with more than 500 artists signed under waiver, and this is only one example of many who have decided to march to a different drummer. Not a large number of artists, but all independent, and the site operators report more than 200,000 hits per month. There is nothing to prevent anyone from setting up a data base of Mp3 files on a server storage and then streaming those files to the world under waiver from the artists who own the copyrights in the files.

Government can not legislate or regulate what an artist must do with their art or their copyright in same, not the United States Office of Copyright, not the Congress, not the Supreme Court of the United States - its the law.

There is probably little any broadcaster can do to avoid paying the retro-fees levied against them for past broadcasts of music of signed artists; if they did in fact broadcast such music without a specific license or waiver, the $0.07 ruling will apply [notwithstanding recent exemptions granted by Congress through amendment to the DMCA]. But to protect themselves in the future from the wrath and meddling of the cartel, or from future surprise levies from CARP, there is a simple, legal work around they can and in all likelihood will use - get a waiver.

Of course, once a waiver is granted by the artist, the artist can not complain to the CARP or ASCAP, or SoundExchange, or BMI, or AFTRA that they are not being paid fairly; but such waivers would not imply any broad general release to all broadcasters; that is, just because the artist waives the right to royalty entitlements with one broadcaster does not imply they have waived it with all broadcasters. The files can also be protected with digital rights technology or encoded as the artist chooses to prevent widespread unauthorized distribution. But smart artists also realize there is no such thing as a bad play. All plays are good plays.

One of the main purposes of establishing a specific rate for Internet streams was to create a system which would streamline the mechanisms for broadcasters to gain copyright license to a wide range of music from a diverse and broad group of major recording artists. In the past, it would have been next to impossible for a broadcaster to obtain a single license from each individual artist as copyright owner for the right to play a song on the airways. The broadcaster would need to obtain a written release or contract agreement for every song it played, or it would have to get a general release from each record label to play all the songs in the label's music library, with the record label acting as authorized agent of, or assignee for artist, or in most cases, copyright owner of the work of artists in its library (a "bulk" deal"). With hundreds of record labels, perhaps thousands throughout the world, each attempting to negotiate diverse terms and conditions, such a system was thought to be impracticable and unworkable.

This is no longer a problem with the "I Agree" button available now on any secure eCommerce empowered web site. If an artist uploads an mp3 file to a webcaster and agrees to terms of broadcast that exclude or wave royalties with a webcaster, it’s a closed issue, a done deal, and the webcaster can proceed without concern about CARP levies.

But back in the stone age, when the legal world was exclusively confined to paper contracts, rights assignments for music copyrights was a cumbersome process. So the industry began to look for an easy way to grant broad general license for record label music libraries and standardize the payment structure to labels and artists and copyright owners from broadcasters for the use of music in those libraries, to make the whole system more workable from a contract, paper-chase standpoint. Organizations like the RIAA and the various performing rights organizations (PROs) and even performing artists groups like ASCAP arose out of pure expediency in an old marketplace where tracking the distribution and licensing and payment of royalties to artists and copyright owners was difficult and complex. The CARP was born to create a more workable system with power of enforcement through act of law.

2.1. Reality Sets; Economic Reality Visits the Entertainment Industry.

I am also extremely concerned about the plight of small, established recording studios. But I am not blind to reality. I see a dynamic world economy doing exactly what it is inevitably going to do - change. There is no written or implied law that states no companies should ever go bankrupt. Corporations and even entire industries go through a natural life cycle of birth, rise through prosperity, leveling off into the golden years, and then they expand and diversify, merge, or die, just like everything else in this world - things change.

Companies, corporations, business models and markets, and even entire industries come into existence, and then go out of existence for a variety of reasons, including inefficiency, changes in the market conditions, inability to adapt to change, human mismanagement and error, or just outright obsolescence. New companies rise to take their places that are more efficient and more suitable to the job.

It is incorrect to assume and ridiculous to expect that corporate existence should be eternal, everlasting, and that all industries and markets should remain forever stable. And in the process of dynamic change, people can and do loose jobs; people can and do loose money. The market is all about risk, and when one invests in the market, or in a career path, things may change, and one risks loosing. What do they want? A free and open market with no risk? Pleeeeease.

New markets will open and new jobs will be created to replace the ones that were lost. People do find new jobs, and smart people figure out ways of making more money. Those who survive best through transitional periods, through radical but completely natural and expected market shifts, are those who can adapt to the changing conditions of the industry quickly and efficiently.

What we are witnessing today in the recording industry is not a cataclysmic, world shattering doomsday event in the recording industry as such, as the alarmist "the sky is falling" RIAA cartel seems to wants everyone to believe in order to convince Congress and CARP and the Librarian of Congress to grant it special privileges to further expand its power and industry dominance, but a shifting in the tectonic plates of supply and demand the cartel mistakenly believes to be controllable by artificial, legislative decrees, although such acts designed to regulate by decree do indeed often signal the beginning of the end of outdated control models that are no longer viable or useful.

When government must prop up an industry by decree, it is a good indicator that the gig is about over for the established corporations working under established, but old business models. Industry rumbling begins when the established corporations begin to feel the pressure from outside forces they can not control that compete against them for market share. The rumbling will all settle down after awhile, even though some corporations will not survive, and artists can resume life again and go back to work and create new business models to sell their art and make money. But it will be a different life for sure with different working conditions and different rules, rules the RIAA will neither make nor control.

2.2. The Cartel Struggle for Control of Exhibition Medium.

Attempts by the RIAA (US senator Howard Berman's RIAA hack-attack bill) to manipulate the Congress of the United States with false and misleading information, half-truths and distorted claims about the present status of the music industry in an attempt to induce the lawmakers to grant the cartel membership special privileges and powers it has no right to claim are typical of how this cartel operates. It can ask Congress to give them the permission to hack into we the people's private computers (searching for those elusive mp3 files it "suspects" are on our computers), but this does not mean Congress may grant them that permission or that the Supreme Court of the United States would ever uphold such an act if granted. The RIAA can ask Congress to give it the right to control and collect all the royalty money (SoundExchange), but this does not mean Congress ought to have granted them that right or upon due consideration that they will keep it for long once granted.

Congress can not grant rights to non-government organizations (NGOs) Congress and the government itself does not have. Not even the FBI or the CIA can legally hack into my computer searching for information without an order from a judge, and then only after showing probable cause to a judge (notwithstanding exemptions granted the Justice Department under the American Patriots Act), strong evidence that I have done or am doing something illegal - its called a search warrant.

Congress does not have the authority to grant any NGO the right to circumvent the principles of due process of law as specified in the Constitution of the United States, and that process involves the legislative, executive, and judicial bodies of government in making, interpreting, and enforcing the law as the only legitimate agencies of enforcement against violations or suspected violations of law, including copyright law.

Besides, there is already a publicly available remedy at law for pursuing and punishing copyright violations - the FBI. It is already the job of the FBI to do these things. If the FBI has not the time or resources or resolve to enforce the law, then these are separate issues that Congress needs to address. Congress does not solve the problem by abdicating government responsibility to non-government organizations like the RIAA.

2.3. Controlling the Means of Distribution; Cartel Scare Tactics.

2.4. Sing us a Song; Writing Law to break the Law.

Each Corporation (members) in the RIAA cartel pay money based on a percentage of their sales into an association-controlled slush fund. This slush fund money is used to promote the interests of the members through a variety of RIAA orchestrated activities, which includes stacking the legislative deck in their favor by writing laws for Congress that give special privilege and advantages to their members (special-interest lobbying), contributing and arranging for money to the campaign funds of the politicians who vote on the laws (pseudo-legitimized bribery coupled with influence peddling), and then bashing their smaller competitors into oblivion by using and often abusing a body of law they wrote for themselves that give them unfair advantage, power, and control over the entertainment industry.

2.5. Give Us a Monopoly; Destroy the Competition.

I have no problem with individuals associating themselves together to promote their common good, but I do have a problem with corporations doing it, because it tends to create too much power concentrated in the hands of a few and gives rise to monopolistic and predatory business practices that ultimately injures free commerce and, in the end, the consumer.

There are millions of musicians in the United States alone, hundreds of thousands of independent recording artists (artists who also record their own music) throughout the world, tens of thousands of independent bands, and many thousands of small recording companies who now have the capacity to record and manufacture their own work who are not members of, and who do not pay to, the cartel slush fund. These artists are direct competitors of the cartel members. They manufacture and sell their own music CDs in direct competition with the cartel. But they pay taxes and they contribute revenue to their federal, state, and local economies. They spend money on their media productions and they consume goods and services in the day-to-day management and operation of their business, and they create new jobs, both on a long and short term basis, and they promote and support and sustain existing media jobs, both in the physical media manufacturing sector and in the media production and exhibition sector. Small independent producers and independent artists are one of the major emerging suppliers for music, film, television, and other entertainment media. As with the small retail shops and outlets, these artists individually may not sell many CDs, DVDs, and other media, but as a general group or class, their sales figures are awesome and are rising steadily and they are cutting into the bank accounts of the cartel members.

Now the cartel is using copyright law in an unfair and predatory way to harass, intimidate, and scare various legitimate commercial business segments of the media marketplace into complying with cartel demands, demands that serve only the interest of the cartel, not independent artists or the public who constitute the legitimate majority of music producers and consumers.

2.6. Controlling the Marketplace; Suing the Fans and Commercial Resellers.

By holding the copyright Sword of Damocles over the heads of the independent business and shaking it mightily in a threatening and intimidating manner, the RIAA is using the copyright infringement issues as a form of intimidation and harassment to scare and frighten small music resellers, forcing them to have second thoughts about purchasing any CDs from any source other than those blessed by the cartel. Yes, it might help curb illegal sales of their members CDs, but it also restrains the work of independent artists from entering the market place. In what superficially appears to be a legitimate effort to protect the rights of a few, the cartel is damaging the rights of the many.

In short, the RIAA is using and abusing copyright law to unfair advantage in a way that it was never intended to be used as it was designed by the founders who wrote it into our Constitution. There is no such thing as copyright infringement in general. There is only a specific instance of infringement committed by a specific individual in copying a specific copyrighted work illegally. In an attempt to curb specific instances of infringement of its member's copyrights, the RIAA generalizes the illegal activity of infringing to an entire industry and restricts the work of independent artist the cartel does not control from entering the marketplace, and it is doing so under color of legitimacy.

If Sony or Warner or Columbia knows of some specific instance where a specific retailer obtained some specific pirate copy or a bunch of copies of a specific title from a specific artist and resold it in its store, they have every right to invoke the full weight of the law. But when these corporations form and fund a cartel and the RIAA proceeds to engage in the reckless, blatant, and wholesale harassment of all small business men and women by generally accusing the whole segment of their industry with infringement, their actions are abusive and wrong.

2.7. File Trading; All are Guilty Because One Has Sinned - Harassing the Armed Forces.

That the RIAA takes it upon itself to speak for all artists everywhere with such broad generalizations in what appears to be an attempt to stop all file trading it can not control is clearly abusing the letter and spirit of the law. Such "notices" cause the unwitting persons who receive them to believe that the RIAA is the unquestioned mouthpiece for every artist and represent the interests of all artists and that all music must be RIAA music. Certainly, this is not the case, and since the RIAA must know whom, in terms of actual numbers, it does in fact represent, their actions can only be viewed as intentionally misleading and deceptive. The RIAA is a classic, textbook example of a well-funded and well-organized minority group with vast resources and power exercising undue influence and control over the rights of the majority.

3.1. Precedent Cases of Antitrust.

3.2. The Cartel and Antitrust.

But the cartel is experiencing desperate times, and desperate times are usually accompanied by desperate acts by the desperate. The cartel is loosing its grip on an industry it once controlled almost exclusively without question. Independent performing artists can now, if they wish, produce their own art, not only their demos, but entire albums, music videos, and recordings of live shows, maintain control of their own music, maintain control over their own recorded masters, and keep their own copyrights intact and license their own work as the market will bear demand for their art. This is a real problem for the RIAA members.

4.1. Independent Artists and the Public Marketplace

People are still spending the same amount of money on entertainment, which is an 80 billion dollar US industry and is projected to reach 1.4 trillion dollars worldwide for all combined media by 2006 (Price Waterhouse Coopers), and this dollars-spent-by-the-consumer figure does not change much toward the downside outside of normal market fluctuations that respond to the ebb and flow of all interdependent markets, the money is just distributed among a now larger and wider market of artists, the vast majority of which are not signed.

An independent recording artist who manufactures 100,000 CDs and sells them on the Internet from an eCommerce empowered web site can make more money than an artist who sells a million albums through the cartel. Independents can have their CDs manufactured directly from a multitude of CD manufacturers with a slick four-color cover in a nice jewel case and shrink-wrapped for the shelf for about a buck apiece. They can wholesale them in volume for $3.00 to $5.00 bucks, or sell them direct to the consumer at retail for $7.95 to 14.95. Do the math.

Independents, if their work is good, no longer need RCA, Paramount, Sonny, or any outside company to record their music. Artists do not need the majors to produce and distribute their work anymore. At best, major labels can still provide financing for advertising and marketing to "hype" the work of its artists to the public, but even that is fast becoming a worthless endeavor, as the instantaneous nature of the Internet makes releasing a new title as simple as uploading a mp3 file to a server and posting a notice in the major alt.music discussion groups and telling the public to go get it. If it is music people like, it will be all over the world in a matter of a few days or weeks, perhaps in only a few hours.

The expensive, top-heavy recording and film production studios are fast becoming outdated. They are like the milkman, the blacksmith, or the buggy maker. Once milkmen graced the streets of every city in America from sea to shining sea. Today there are none. They served a useful purpose at one time, but times change, and they are no longer necessary. Once buggy makers produced carriages of extraordinary beauty and craftsmanship. Then the automobile was invented. But the buggy maker became the auto body maker, and the milkman became UPS and Federal Express, delivering packages instead of milk. So it is not at all doom and gloom for the recording industry as a whole. But frankly, for millions of independent artists worldwide, the giant studios and control masters who are in charge of them, the heavily entrenched elitists patronizing the Hollywood production machine, are now seen not a goal to be obtained or an example to emulate but an obstacle to be overcome. While unwitting new artists are still trying to find a way in, older more established and more experienced artists are looking for a way out of their contracts.

4.2. Backlash Against the Major Record Labels.

This is a big problem for those artists who have signed and assigned their rights to their art over to the RIAA major record labels before the rise of Internet power. These artists are caught up in the middle of all this. On the one hand, they need to be able to make a living at what they do so they can produce more art, but in order to do so, they signed a deal with the devil (Michael Jackson's affectionate term), and now the changes in market conditions have given rise to a scenario that is working against them, diminishing their record sales and their royalties. Many are struggling frantically trying to find ways to get out of the usurious, lopsided, exploitive record contracts they signed years ago but which are no longer equitable or viable in this new marketplace. Their recent attempts to have the exclusive lifetime contracts declared illegal beyond a seven-year limit is an example of their struggle and their plight. In many cases, these contracts bind them to indentured servitude and literally make slaves of them against their will, so naturally, they want out. But that's a problem between the signed artists and the record labels to buff out between themselves. And the essence of this problem is going to get much worse for both the artists and the labels that bind them in chains before it gets much better.

When the artists are freed from industry chains that presently bind them to indentured servitude against their will, they will go out into the world and start up their own record labels along with thousands of other independents who presently have their own recording studios and labels and are doing quite well, thank you, and will exist in open competition against the masters they formerly served. This is good for music industry production, manufacturing, and sales. Consumer spending for entertainment product, including music CDs, will not change much. Entertainment related spending by the public is just one of those weird areas of the economy that does not fluctuate much overall. Even during the Great Depression and World Wars and great economic catastrophes and shifts of the last century, the amount of money spent by people for entertainment remained relatively constant. So the economic theory of the RIAA is bogus. The money spent by consumers will simply be spread around across a broader market base and consumer purchases of recorded music will be de-centralized away from concentration in the hands of the major record labels. This is good for the consumer. The result will be lower unit cost per CD to the consumer, greater choices, increased competition in the music market, and resulting higher quality standards among competing artists. But the amount of money consumers spend on music entertainment will remain steady, which means consumers will just be able to buy more media units at a lower cost.

Even if consumers ultimately obtain music at a fraction of the cost via an Mp3 format file, the money they spend overall will remain about constant all the time. Consumers will still spend the same amount of money from their entertainment-dollars budget and buy 2 or 3 CDs instead of one, which means recording and manufacturing CD unit output will actually increase; and/or, if they buy mp3s from the internet at a fraction of the cost, the money is merely transferred from one sector to another. Even if CD sales fall, spending will show up in another sector. Although there may certainly be some heavily entrenched major corporate workers who are temporarily displaced by this shift in market conditions in the short term, this displacement will by no means be permanent, and the market shift may actually create more manufacturing jobs in the CD manufacturing sector in the long run. This will include production increases in CD media, increases in manufacturing of recording devices like CD burners and recording equipment, more distribution outlets, increases in transportation and shipping of the product, advertising, printing, revenues from internet sales, and market increases and expansion in other areas of commerce related to the manufacturing and delivery of music product to the public.

The courts have ruled that exclusive contracts are unenforceable if the contract fails to provide gainful employment to the artist. This is based on an old and well established principal of law which holds that on can not be held to a contract that is not fruitful. The issues involve copyright law, contract law, and labor law. So most of the artist contracts can be easily vacated by the courts for breach of performance by petition to the courts showing the label has failed to provide gainful income to the artist.

The label may have physical possession of the masters, but the artist who has paid for production owns the copyrights, which are separate from physical thing (masters) that establishes the art in a fixed form in a physical, recorded medium.

The label may think it owns your copyright and masters and may be telling its signed artists such based on its own self-serving interpretation of its own contract provisions, but typically, if the artist's contract is expired, the label can not copy your work without your consent because the right they have under a contract of limited duration and term is non-exclusive and all non-exclusive contracts regarding copyrights are revocable, so the masters are worthless to the label - the courts will return them to the artist, because the artist is the original author, and the masters are the only way the artist can make copies and sell the art.

Although copyright in the recording is separate from the copyright in the music (instrumentals, voice, lyrics), the artist paid the recordist fees, so the artist owns the master recording and the music art recorded on the master.

If the label claims ownership right to the masters against the copyright of the author on the grounds that "...the parties have expressly agreed otherwise in a written instrument signed by them...", and that the artist signed copyright ownership of the masters to label in the contract, one might point out that the "written instrument" (the contract) is "expired", and so are probably all of its provisions and terms. If the contract had a provision that assign the label the right "in perpetuity", contract provisions that are perpetual can not reasonably exist in a contract that has an expiration date, since it is a legal absurdity to expect the courts to enforce perpetual provisions in contracts that expire. Lawyers seeking replevin on artist's masters need to look closely at the wording of the artist's contract.

The changes we are witnessing in the music industry will not result in some sort of economic melt down of the overall music production industry itself even if artists revoke all of their non-exclusive agreements with the studios and replevin all of the masters produced for them by the studios. It will have little effect on overall industry production and sales industry wide. The frequently overstated "end of the music industry" idea is total alarmist nonsense put forth by the giant music monopolies speaking through their RIAA mouthpiece that have maintained illicit control of the industry for decades through the giant cartel they have established under the RIAA banner. They are now loosing control of their dominant market share and appear to be desperately looking for a way to forestall the inevitable collapse of their outmoded business model. None of this implies the industry is ending, but the era of big corporate control of media is coming to an end.

4.3. The End of an Era.

That this era of giant corporate control of the music industry is fast ending is great news for the consumer, for the recording artists, and for the foundation of society and culture itself, the arts. Say so long to a bad, outdated, self-serving system and get ready to move on to bigger and better things for the music industry. These changes are a good step in the right direction.

5.1. Rolling Stone.

At portals like RollingStone.com, which the cartel controls through advertising dollars the majors spend with the magazine, pop-up ads, banners, and net-ad placements, RolingStone announced it was deleting all unsigned artists from its data base and play lists. If you cannot beat 'em, delete 'em.

The RollingStone.com artist's web pages long served as a venue for both independent and major record label artists to gain access to the public ear with at least some pretense of fair and equal footing. But no longer. The work of the independent and unsigned musicians has been removed, censored by omission. What would motivate RollingStone.com to commit such a blatant act of censorship?

The removal or deletion or suppression of the work of a certain class of music artists simply because they can not, do not, have not, will not, or choose not to sign with the major record labels and choose instead to maintain creative and financial control over their own art and their own copyrights, seems to me a very problematical and socially irresponsible move for Rolling Stone. Will anyone ever again take them seriously when they opine to the public on the current state of the music industry and report to the public, alleging to judge issues of quality in the performing arts? Future music historians will judge them by what they do, and not by what they say they do. Rolling Stone did not delete any of the files of the major record label artists, only the independent artists (who are presently becoming a very large threat to the major record label cash flow). RollingStone.com is still actively providing downloads and streams and aggressively hawking and hyping CDs of the heavily entrenched group of music industry artists signed under contract with the major record labels. How can Rolling Stone remain true to its claim that, "RollingStone.com [is] your online source for the latest in music news and popular culture", when it deletes the work of the very group of performing artists who form the true foundation of music and popular culture? Rolling Stone Magazine has reduced itself to absurdity with the words of its own mouth.

Of course, independent artists do not buy much advertising space in Rolling Stone Magazine. So I guess I can understand the financial motivation. Rolling Stone would naturally patronize the major record label(s) hand that feeds it as a matter of pure survival, even if it is at the expense of the true creative artists of the world, the true creators of new and innovative music forms, the independent performing artist. Altruism has its commercial limits, it would seem, and its price.

On the other hand, I can not see the wisdom of alienating the group of artists who have historically been one of the largest buyers of their magazine, the unsigned musician. Although I suspect many common-folk music affectionados buy Rolling Stone Magazine at the news stand and obtain it through subscription, and I am sure every music industry executive has the latest copy on the office lobby coffee table, the vast majority of people who purchase the magazine over the counter and by subscription are independent musicians and upcoming, unsigned performing artists. So ostracizing and censoring this group of independent music artists is a questionable, to say the least, business maneuver on the part of Rolling Stone. What they may think they gain from ad sales from the major media control masters, they may loose from loss of credibility and loss of readership as their words and opinions degenerate into little more than a hype rag for the corporate music media elitists at the top of the artificially created music media pyramid.

After deleting the Independents from its database, Rolling stone immediately in almost the same breath informed the independents that they could upload songs to the rolling stone database if the independent artist paid a fee. Blackmail and attempted extortion.

So as long as Rolling Stone does not mind that the world may come to perceive it as just another lap dog of the giant corporate music cartel that shoves the contrived formula music of its current under-contract fair-haired boys and girls down the public's throat day after day after day over and over and over again and again and again ad nausea, then I guess it is, after all, their business.

5.2. Mp3.con (Vivendi Universal).

Mp3.com, bought up by Vivendi Universal Corporation in 2000, recently announced that after January 30, 2003 it would allow only 3 songs on the web site pages of any non-payola artist and is "unlisting" all but three songs from the non-payola artist's web pages - wouldn't want the public to learn the truth about just how prolific and creative some of these independent, unsigned artists really are now.

Non-payola artists who visited their web pages on Mp3.com the week of 1/30/03 found all but three of their songs unlisted, out of sight, out of mind.

Of course, this new rule will exclude Vivendi's own catalogue of signed artists and artists who payola to Vivendi under what they call the "Premium Artists Program", where the artist pays Vivendi a fee to host and play their songs on the Mp3.com web site in a more prominent position, and premium payola allows up to 100 payola artist songs to appear to the public eye and play to the public ear.

Artists who become payola artists, or who are already signed under contract with Vivendi Universal or its affiliates or subsidiary or associate record labels, can exhibit any number of songs on their Mp3.com web pages (up to 100), but otherwise not. Before 1/30/03 both payola and non-payola artists could exhibit any number of songs on their web pages, and anyone visiting the artist's web page could, if they wished, stream the entire catalogue of any artist's songs.

If all the independent artists who now have the capacity to record their own music were allowed to exhibit their wares in an open marketplace in open competition with all other artists in the world, consumers would be able to make real comparisons between signed and unsigned artists. If all the work of these independent artists were publicly visible and available, the public would have a wider range of choices, and Vivendi (and its associate labels) can not afford that.

The independent artists are beginning to compete too much with artists signed under contract with Universal and all the other established members of the international record label cartel. So, in an effort to maintain market position, Mp3.com has resorted to censorship. "Unlisting" an artists work from public view is censorship by definition, regardless of what rational they give for their actions. If you can't beat 'em, delete 'em.

Vivendi has claimed that the change was necessary to prevent artists from "gaming" the system. But this is only a partial truth, partial in the sense that it is true that, by using the faster more powerful computer systems available now connected with broadband, a "gaming" artist or streaming media station owner could open a multitude of media players simultaneously on a single desktop and create multiple streams of their own stations or pages and pump up their own play stats or hits, for which they then expected Vivendi to pay for under its pay-for-play program (P4P). But since only payola artists are eligible for pay-for-play, "unlisting" non-payola artists has no effect on the alleged gaming problem Vivendi claims it is experiencing. Additionally, as part of its sweeping 1/30/03 changes, Vivendi discontinued the P4P program altogether for its Premium payola artists, which was of no value at all to non-payola artists anyway.

Also, in view of the fact that Mp3.com has been using cookie technology to identify and track visitor/listener activity and knows perfectly well who is playing what based on the unique computer identifier information it receives from the cookies it plants on visitor's computers when the visitor logs on (songs will not stream at all unless cookies are accepted by the receiving computer, and the cookies have the ability to uniquely identify the listener's computer).

So the "gaming" issue is a red herring concocted by Vivendi spinmasters to pseudo-legitimize and attempt to justify its act of censorship against independent non-payola artists; in what appears to be a bad faith attempt to lessen the likelihood that the crash dummies, who would never think about it, will catch on to the "bait and switch" scam Vivendi is really trying to pull over on the non-payola artists who have contributed content to its site. Vivendi has done a good job in fabricating explanations for its censorship actions. But in simple terms, Vivendi does not appear to be telling us the whole truth about its motives.

5.3. The Classic Con Game; How it Works on the Internet.

Contributing content to the Mp3.com music site sounded like a good deal for most independent artists to begin with. Posting music to the site could potentially result in increased sales and promotional value to the artist. Tens of thousand of artists have contributed their music to the Mp3.com database freely and in good faith.

Many artists have spent a considerable amount of time, effort, labor, and energy setting up their web pages on Mp3.com, and having most of that personal equity value and effort stripped away on a Vivendi whim under dubious motives is damaging to the artists who originally took part in the building of the Mp3.com music portal.

It is astounding anyone has fallen for this Vivendi con. But in general people are trusting and have no idea just how insidious con games really are or how they work. For many young artists, anything holding out even the vaguest promise of stardom is irresistible, even when the probability of winning in this pay-to-play game is so remote it should rightfully be regulated as a form of gambling. I do not believe many artists fully understand that in a situation where a site operator might change the rules of the game ex post facto and alter previously agreed upon terms and conditions retroactively any time for any or no reason, then all of the artist's investment of time, labor, energy, work, money, and their art related to or dependent on the site is in a constant state of jeopardy.

The classic bait 'n switch con game or 'confidence scam' begins when the con offers the target something for free, a little candy to entice the target and get the game started, the bait, in this case, free music hosting, and then once the target becomes dependent on the good taste and is loving it a lot, the switch occurs, the con effectively changes the rules of the game in mid-stream by playing on the target's dependency, starts jacking up the price, and extorts money from the target under threat of discontinuance. There is a big legal difference between making a legitimate sale to a willing buyer in an open marketplace and compelling or attempting to compel a buyer to purchase something under threat of damage, injury, or harm to the buyer for not buying. The con scam involves a very sophisticated form of both blackmail and extortion - pay up or suffer undesirable consequences. I find it a bit ironic that Vivendi should complain of "gaming" when it is itself such a clear master of the "gaming" conform.

Mp3.con has turned into the biggest scam payola music site in the Internet after it was taken over by Vivendi Universal; it is at the top of the food chain of a growing multitude of other payola music sites operating on the World Wide Webb. Mp3.con has come to be something very different from what the original artist content providers were led to believe it would be, an outlet for the music of independent artists. It has changed into a payola site designed to pick the pocket of unsuspecting musicians and a hype site for major record label and payola junk.

The public allure of Mp3.com, and its viability as a business model for streaming music, was originally founded on the fact that the public was fed up with the junk it was spoon-fed by the corporate giants from terrestrial radio. Mp3.com visitors were visiting precisely because they were tired and unhappy with terrestrial radio mainstream mediocrity and wanted something different, more variety, more content, and the ability to choose between a diverse range of musical offerings. Payola has made it into a farce; much like terrestrial radio today is a farce. Of course, the public typically can not see the farce because they are bedazzled by the media giants' version of the Platonic "parable of the cave", where they are chained to the wall of an artificially created media cave throughout their whole life, able to see only the shadows on the wall of things passing by outside in the real world, and because their perception is restricted, they believe that reality is the shadows they see on the wall, not knowing, because they are unable to know, that a whole other world exists beyond the entrance to the cave.

7.1. Payola Internet Music Sites Conflicting with the Law.

Sadly, the payola sites are now bending the rules of the game a bit too far.

Although this new form of Internet payola is a hybrid form of payola technically different from "payola" as defined in Section 317 of the Communications Act, as amended, 47 U.S.C. § 317, it is still subject to the law as it is written, particularly if payola activities on the Internet spill over into the commercial airways. That is, if the Internet streams in which payola is occurring are subsequently re-transmitted, in whole or in part, over the commercial airways, a Section 317 violation occurs, since the law makes no distinction between terrestrial broadcast and Internet broadcast, the broadcast source, after a play hits the airways. The law was written before the Internet was born. Section 317 applies to terrestrial airways, and Internet streams and content are not clearly included in the wording of the code, so Internet payola music sites may be perfectly legal as long as the stream is confined to the Internet and does not spill over into the airways.

Where station programming is piped in to a terrestrial broadcast station through the Internet, usually with broadband, if programming is occurring from Internet sources or from archives where payola is used to promote songs, then the subsequent retransmission of music from the Internet stream or archive over the commercial airways without disclosing the payola is a section 317 violation.

Although enforcing the law in an international Internet market poses some jurisdictional problems, enforcing Section 317 after Internet payola content hits the US broadcast airways is perfectly within the jurisdiction of FCC and Justice Department regulation.

7.2. Payola in Radio Re-emerges in a New Form.

Payola is by no means absent from commercial radio today, and now it has infested the Internet in multiple forms and those forms are working their way back into terrestrial radio. Payola is occurring just as much today in the terrestrial radio industry as ever. Radio payola is cunningly buried in the advertising budget expense accounts of the Major labels and in the Advertising sales figures of the Station broadcasters.

But where the Internet is an open market, perhaps the largest open market the world has ever seen, it may regulate itself through competition and supply and demand. Terrestrial radio, on the other hand, is not an open market system, and without further regulation and control, radio payola hidden in advertising dollars is not going away soon.

7.3. Picking Artist's Pockets; Majors Selling Snake Oil to Artists.

And the major industry powers who are now running the Internet payola scams, hybrids of the very scams they run through commercial radio, appear to be attempting to gain even more control of commercial media through consolidation of radio, television, magazines, newspapers, films, etc., to control the Internet to control the work of artists who compete against them for market share.

In addition, with radio, meaningful listener data and demographics are available; not so with Internet music sites. We generally have no idea how many people are actually listening, what their demographics, or how many sales occur at such sites.

The question that strikes fear into the heart of every site operator I have ever queried and have never received a verifiable answer from is: How many artists, in terms of an actual percentage who payola to the site operator, actually obtain sales valued in excess of the money they pay out? It is a simple question. It has a simple mathematical answer. They do not even need Nielsen to answer it. But the site operators will not answer this question because making honest disclosures would mean committing business suicide.

Artists who are professional and well liked by their fans and who sell lots of music to the public will typically sell lots of music and do well in their career field whether they payola or not. Although the combined total Internet sales of all Internet artists may be impressive, the vast majority if individual artists never see any appreciable return on their payola investment.

Although it is assumed that advertising in general increases sales, there are no independent, objectively verified sales stats, demographics, viewer ratings, etc., for the payola music sites. The sales information provided by the site operators ranges from extremely vague to outright deceptive. Internet stats are easily manipulated by those who know how to game the system, and there are many games from inexpensive to very costly used by promoters, to pump up Internet play stats and sales stats, ranging from repeated self-hits on the web site and self-plays to self-purchasing and cycling buys in and out through sites that report sales to SoundScan. Stats that can be easily manipulated by the site operator or not verifiable at all are unreliable, the take-my-word-for-it answer, or by cherry-picked artist testimonies among competing artists who also have song downloads or albums for sale at the web site. Sites that have rating systems based on listens or listener voting must also be viewed with skepticism. One can not rely on the sites hit counter for any meaningful information; so, it had 306,000 visitors in the last 90 days, big deal, did any of these visitors come back the second time, or are they mostly just the artists visiting their own web pages. Did they buy CDs or a download, or did the visitors just download the music for free and then never return? There is no way to tell. The site operators are not talking.

Universal is attempting to use the mp3.com site to fleece money from independent artists and control (restrict) availability of product from artists it does not control, and if it can not control them, it deletes them. This same ruse is used to manipulate the Billboard Charts by falsely reporting outright bogus sales to SoundScan (some guy siting in a back room scanning a title with an UPC wand over and over to pump up sales figures on a title) or by simply reporting inflated sales numbers.

The Internet is even more prone to manipulation than radio and television rating systems. Any rating system that allows fans and competing artists to vote on the quality of any artist's work, for example, is nothing but a rigged Gong Show, in much the same way Billboard now serves the major players as the industry standard music Gong Show, the Internet has learned its lessons well from its big brothers in the mainstream media distribution market, where 90 percent of the artists who contribute time and labor and cash to the majors media libraries never make any money from their album releases, but the major studios make tons of money by spreading out total sales among a wide and diverse group of artists, each making a small amount of sales, with total combined sales equating with tremendous profit for the corporations, but not for the individual artists; indeed, these corporations have built entire empires from the work of the 90 percent of the artists who never make money, thanks to the Enron-style accounting methods of the majors studios and record distributors who control the marketplace for music, and "sharking" the artist has become a way of life for both the major studios and now the major Internet music portals as well. Universal is attempting to use the mp3.com site to fleece money from independent artists (by charging up-front fees to the artist, the vast majority of which will never make appreciable sales), and also to control (restrict) availability of product from artists it does not control, in much the same way all major labels fleece 90 percent of their own signed artists who never make any money, and if they can not own and control them, they censor them by omission. But this is so typical of the classic major recording industry label cartel member's modus operendi.

8.1. Loss of Industry Jobs is a Self-inflicted Wound

As a group, the RIAA/MPAA/AMPTP membership and their employees have valid reasons for being concerned about the safety and stability of their jobs. Unfortunately, it is not society's place or government's place to guarantee them that job forever.

And these recording industry workers whose life is now fraught with radical change have no love loss for independent, non-cartel producers for obvious reasons. Independents are presently in the process of flooding the marketplace with their independently produced music over the Internet, which diminishes market share of the majors and cuts into their bank accounts. Workers are always the first to take it on the chin when management fails to act with vision and foresight and business models fail, and whenever things begin to go wrong, the industry gatekeepers always like to look around to find a scapegoat to blame for their woe.

It is much easier to point the finger at extraneous fictions as the corporate honchos continue drawing their salaries and paying dividends to the principal shareholders as they lay off workers. To do otherwise would be seen as a sign of weakness and would adversely affect the market for their corporate stock, so corporations typically sacrifice the workers to maintain corporate image and stable share prices. These are problems in labor law in general and not just problems characteristic of the entertainment industry. And until laws are enacted to prevent corporate honchos and principal shareholders from absconding with the profits from the sweat and blood labor of the creative worker talent who build these corporations in the first place, nothing will change, and workers will continue to bear the burden of pain for industry mismanagement and in some cases, the outright theft of labor sweat equity. Workers always put much more equity into a corporation than they ever take home. That is what corporate profits are all about; the excess equity generated by workers pass through to shareholders and executives at the top of the corporate pyramid and when the corporation, or the industry itself, comes to the end of its life cycle (which always happens eventually), workers are left holding the empty bag. All the profits from their labor have been funneled off into private, in many cases foreign bank accounts. If workers are upset with this scenario, rightly so, but they need to look to the culprit and cause of their pain as emergent from the way American labor law and corporate America is structured and not confuse effects with causes.

8.2. Confusing Causes with Effects; File Trading, Piracy, and the Internet.

It is all too typical of human nature that those who bring suffering upon their own house often use bizarre rationalizations to excuse themselves of responsibility. The RIAA and its gang of corporate masters are no different in this regard. They blame it on pirates. They blame it on downloading and the Internet. They blame it on peer to peer (P2P) file trading software makers. Wrong. Piracy occurs today no more and no less than ever.

There is no more illegal recording going on over the Internet than there has always been from terrestrial broadcasts. People have been recording and sharing both television and radio broadcasts from the airwaves for decades. This matter was settled with a per-unit cash levy on the recording device manufacturers of recorders, VCRs, and now on blank CD and DVD media.

8.2.1. The Internet vs. Terrestrial Radio; the False Analogy

And the cartel's drawing distinctions as they have between digital files and analog broadcasts and claiming the inherent value of one is greater than another is a useless perversion of the digital broadcasting issue, a subterfuge meant to deliberately obfuscate the issues to allow RIAA/MPAA control of all streaming and all file sharing so they can covertly bash the free speech rights of independent artists who disagree with them and who want to compete against them in the free market. The real prize the cartel is after is control of the greatest means of exhibition and distribution the world has ever known - the Internet itself.

The fact that most all the major networks are broadcasting in high definition digital (or are preparing to do so) and are required to have their digital broadcast capabilities online this year makes the Internet piracy argument of the RIAA even more dubious.

mp3 files transferred over the Internet look like this: 000111001000111110001111100001111100010001111111...

These digital information streams are identical. Copy protection encoding merely shifts the 8 bit, 16bit, 32….128 bit packets of ones and zeros into a different order assigned by a separate encoding program and then re-assembles them for play by reversing the process that shifts them out of order in the first place. All copyguard programs work the same way, no matter how sophisticated such programs are in rearranging and re-assembling the digital stream. And all copyguard schemes have an Achilles Heel that no copyguard program can defeat (see Section 8.2.2. below: MPEG Codices and The Analog Hole will not go Away.).

So what would the RIAA do now? Sue the digital television and radio receiver manufacturers because such equipment provides a way for a pirate to steal? Sue the terrestrial radio station because someone might copy and trade one of the broadcast files and argue that the station is culpable because the station's equipment and the carrier wave it generates provides the means for a pirate to steal? If the courts allow the logic that says Kazaa is a tool for piracy and therefore infringes copyrights, then it must also be prepared to accept the inescapable conclusion that digital radio and television broadcast equipment are also tools for piracy and their operators and broadcast equipment also infringe. But the cartel controls the radio and television industry and seems to believe it can control its content with non-mpeg formats, copyguards, and scramblers (anti-piracy devices and codes). The cartel may indeed be able to control piracy of its content somewhat with these copyguards, but it can not control the Internet content of artists who choose not to use them, like independent artists, and copyguards have other problems inherent in their use and overuse.

The non-mpeg format audio and video codices, employing anti-copy codices, and the corporations and companies and artists who use them exclusively will destroy themselves eventually with their own greed. This is not about art or artist's rights; it is about control - control of the music, film and publishing industry by the entrenched giant corporations, power publishers, and the mob. They are so desperate to develop a format to control entertainment content they will ultimately destroy their own market share and their own industry dominance.

With the big media corporations all scrambling to protect their large copyright libraries, it has turned into a real comedy of errors, where they seek to lock up the family jewels while at the same time opening the door for independent artists to walk in and kick some bootie with their independent music and films. This is happening right now, and the giants are terrified of loosing the dominant market share they have maintained for decades.

There are thousands of independent film and music artists out there just waiting to be heard. If you go to entertainment sites like mp3.com, ifilm.com, FilmFilm.com. formerly Napster, GaarageBand.com, to name only a few, you will find scores of very talented artists exhibiting their wares for free. Yes, some of it stinks, but a lot of it is good stuff, as good as anything you hear on the radio or see on television or in the theatres. The giants hate this, because, for the first time ever, people have a choice. Independent artists can showcase their music and film work to the world as easily as opening up a website and uploading a streaming media file. Now their work is available over the Internet for the entire world to peruse. What do you think will happen when someone comes to an establishment and finds it accessible only with a credit card? Many will turn away and go somewhere with a free show. The more free shows available, the more likely they will turn away when someone wants to collect bucks at the door.

The independent artist is, and has always been, the thorn in the side of the major music and film producers and distributors. Now they are even more of a threat because many independent artists who can not gain airplay through terrestrial radio are opting to give their music away for free as low band (128kbps or less) downloads and streams to entice fans to purchase higher quality format media, like CD, Music DVD, and 300kbps or higher mpeg format files.

In the bad old days, monopoly control of the music and film industry was a fact of life. Over the last one hundred years of so, the giants emerged as a vehicle for marketing and delivering entertainment, music film and television content to the world. The major outlets were cinema theatre, radio, television, and then music and video store outlets. The giants gained control of these outlets through some shady tactics. In a typical music store or video store, there are only so many "slots" on the shelves to display the music and videos of the industry to the consumer. So for decades, the giants have resorted to rather underhanded and devious and sometimes outright criminal practices in an attempt to control those slots- the software industry is probably the most current, familiar example of the standard modus operandi, where a certain software giant refused to ship product to stores that carried its competitor's brand and literally censored its competitors off the shelf. - they have been busted, but the same thing happens today and often in the music, film, and video industry.

The giant labels do not want the work of artist they do not control on the shelf next to artists they do control. So they just tell the storeowner, or imply it with actions instead of explicit words, 'no independent films or music on your shelves, or else'. I found out about this by accident, the tip off, when I asked my video storeowner (a minor chain store owner) why he didn't carry more independent and alternative film titles on his shelves and he said, and "The major suppliers would object They do not want those kind of titles (not talking about porno here) on the shelf next to their product. They will pull their films from my shelves and refuse to ship me major releases." "Really", I said. But "isn't that a violation of the Sherman Anti Trust Act", I questioned [Its a felony even to suggest such a thing to a storeowner]. "It may be," he said, "I don't care. My bottom-line is my cash register sales at the end of the day. If I can't get the major titles, I am out of business." The music industry operates much the same through the music industry consortiums.

The scenario is also endemic to the theatre and broadcast industries. There are a finite number of theatre houses in the world and a finite number of seats in those theatres. The major studios want people to go to the theatre to by tickets to see shows they control, not the work of independent artist they do not own, so they connive to keep independent films and music out of the theatre houses and off the shelves of the video stores and record stores. They do this by offering rebates to theatre owners, package deals, concessions to concessions and the door, things the independent artist could not possibly do. What are often termed "marketing incentives" are nothing less than a sophisticated form of bribery through kickbacks. There are about 350-400 average new release film titles released worldwide per year. Yet, there are thousands of films made each year by independent filmmakers that never reach the theatres or the video stores. The 350 to 400 numbers have remained stable for about the last 30 or 40 years, sometimes dropping as low as 250 in a good year [for the studios]. Do you believe this is a natural magic number? It is a magic number range all right, but it is not natural. It is artificially contrived by the consortium of major studios that know that in order to maintain their profit margins and profit levels on film productions they must limit the number of films released in theatres and on video. This is also true with recording artists and new record releases. The giants must limit the choices to the consumer, to the buyer. Too many films released per year would cause greater consumer choice and reduce the profit margins per film. More films, more choice, more choice, broader sales base from which to choose, and total consumer spending on entertainment (which remains stable at about 80 billion US annually, adjusting for inflation, consumer spending on entertainment remains pretty constant) is spread across a larger base, so the profit per film returned to the corporate giants is reduced, and they can not allow that. Independent films dilute the sales of major studio productions. So of the 350 films released from the 2000 or so made, what happened to the other 1500 or so independent films you never get a chance to see. Relegated to the trashcan mostly, consigned to the sacrificial pyres of controlled commercialism. Sure, some of them may be real stinkers, but it would require a grand stretch of the imagination to ask one to believe all 1500 non-playing, non-distributed independent films are all bad.

The giants will do anything to keep these music and films of independent producers off the market and protect their own market position. Next time you go to the theatre or to the video store, or a music store, look at the titles carefully, you will find almost all titles are released by about a half dozen major corporations (all associates of the Association of Motion Picture and Television Producers AMPTP, the MPAA, or the RIAA). Even titles that are produced "independent" must have a stamp from one of the major-blessed distributors in order to appear in theatres or in video store shelves.

This scenario extends into the television broadcast industry also. There are only a finite number of stations and broadcasters. Just as with radio, here are only a finite number of time "slots" per week that can be filled. The major television producers want those slots filled with their programming. Independent producers and artists have no chance of breaking through the walls of this restrictive system. The giant consortium controlling it all is the Association of Motion Picture and Television Producers. The Internet is beginning to serve as a great equalizer, but it is cutting into the profit margins of the AMPTP alliance producers.

8.2.2. MPEG Codices and The Analog Hole will not go Away.

The development of the MPEG format, which allows sound and moving picture images to be transmitted across the Internet, has opened the doors to markets for millions of independent artists who were previously shut out of the controlled monopolies run by the major media consortiums. MPEG, an acronym for Motion Picture Experts Group, who first developed and set standards for the format, and, technically, it is a public domain format anyone can use, has created a real problem for the majors. The giants are desperately looking for a way to put a lock on this thing, but, unfortunately, their efforts are in vein, because if you can hear it with your ear or see it with your eye, you can record it with industry standard recording methods. MPEG, or codices, or locks, or scrambler schemes, have nothing to do with being able to record any sound or image you can hear or see.

The giant cartel of film and music monopolies are desperately looking for the Holy Grail of anti copy codices. It does not exist. It never will exist. It is a unicorn, a mythical being the giant dreamers wish existed but which resides only in the colorful musings of fairy tails. The software developers conveniently oblige them with snake oil from the wagon because the giants are so desperate in the search for the cure to their ills that they will try anything pitched to them from the roadside medicine show. They are overlooking a simple fact of present technology that will not change: if you can hear it or see it, you can record it. In their desperate attempts to lock out the pirates, they will alienate the consumer, who will turn elsewhere for entertainment content.

The giants are attempting to whip the current state of technology into compliance with their outdated business model, which is presently falling apart at the seems, a model which is no longer viable or useful and probably never was of much use except to the greedy, and they will die a natural death and end up consigned to the annals of history along with the buggy whip makers and the milk man.

The media giants are dying. Their illness is terminal. They have reached the end of their life cycle, and their demise is inevitable and eminent. In their place, we will witness the rise of the independent artist. The internet, streaming media, mpeg codices, cheaper and cheaper bandwidth, falling high powered computer costs, and direct access to the consumer wanting to see and hear a good show have changed the entire business structure of the entertainment industry. This change has empowered the independent artist with the tools to entertain the world.

Setting aside the fact for a moment that neither Congress nor the FCC nor the Courts own or control the copyrights in an artist's work and can not exempt, give, or assign the right to copy or exhibit the art of an artist to anyone, only the artist has that right, radio is exempt from paying artist's royalties for transmissions within 150 miles of the broadcast tower. And therein lies the basic hypocrisy within the entire system of artist's compensation (or absence of it) by studios, distributors, broadcasters, and advertisers. On the one hand, the radio and television industry powers want compensation each time a show is played, the broadcasters want payment from the advertisers, their clients (the widget maker), and the widget maker wants revenues from increased sales of their widgets, and they all want paid, in one way or another, each time a performance plays on commercial radio or television (people do not tune into broadcasts for the fine commercials); on the other hand, these very same people who want to make money for re-broadcasting the work of the artist in their advertising-stuffed program lineup on commercial radio do not want this everybody-gets-paid-for-their-work premises used as a valid point of law when artists demand fair compensation for reselling and replaying their performances over the airways.

The cartel can easily manipulate the content of the airwaves with payola cloaked in advertising budgets. It can not so easily manipulate and control the content of the Internet. Although the RIAA does indeed claim to want compensation for its cartel members for Internet plays, it is not making the same argument for radio broadcasts. Unless you believe people tune into radio to listen to the great advertising spots, there is something seriously rotten in this scenario. The cartel does not need to gain control of the radio airways; it already controls them; it is after control of the content of Internet broadcasts.

9.2. The Royalty Exemption to Small Business; More Congressional Giveaway.

This exemption to small businesses was enacted to appease the outcries from small businesses, like restaurants and grocery stores and bars and clubs who complained of "shake downs" from the PROs like ASCAP and BMI who were reportedly gouging these small business for what the small business owners claimed were excessive royalty levies charged to them by the PROs for playing radio and television in their small business establishments. Unable to collect artist's royalties from radio because of radio's exemption, the PROs went after business. Small business reacted by lobbying Congress for exemption. In response, Congress broke the law, copyright law, by granting copyright exemption to business for playing copyright protected art which Congress does not own and control. Congress has no legal right to grant any copyright exemptions, as copyright is a right exclusive to the artist creator or rightful copyright owner.

The problem with Congress granting any copyright exemptions to anyone or any business segment is that copyrights are not like, say, for example, mineral rights, or exploration rights, or property right-of-way. Congress can grant such property rights to others because government clearly controls the right to assign mineral rights, for example, under the principle of eminent domain (also public property and lands held in trust by government for the people). If government rightfully, legally controls certain property rights, it can rightfully and legally assign, transfer, hypothecate, encumber, transfer, sell, or exempt from license fees for the use of such property as it sees fitting and in the public interest. Copyright law, on the other hand, clearly vests the right to assign the right to copy and exhibit to the copyright owner as an "exclusive right". Congress, therefore, can not grant exhibition rights to that which it does not rightfully own; that rights is exclusive to the copyright owner, and not even government can copy or assign the right to copy or exhibit without the legitimate, rightful copyright owner's permission. So Congress exceeded the limits of its rightful authority in both the radio exemption and the small business exemption of copyright (exhibition right) it mistakenly granted in error to radio station owners and small businesses.

Both the radio exemption law and the small business exemption law regarding copyright exemption for royalty payment to artist for exhibition of their work over the commercial airways and in small exhibition outlets are moot Acts of Congress (can not be enforced by the courts), since the Act that granted the exemptions is trumped by prevailing domestic and international copyright law and treaties. Although Congress can control the public airways (the media) through the FCC and may assign, transfer, auction or sell, and bequeath the right to use and exploit the airways to others for commercial purposes as it sees fit, it does not own or control the art transmitted over those airways, and it can not assign to others the right to copy art it does not own.

11.1. Consolidation as a Means to an End - Monopoly.

The principal supporters and promoters of this media deregulation idea are the cartel members. When they act in concert through their association alliances in the RIAA and MPAA and AMPTP, they effectively have monopoly power in the market for the commercial distribution of entertainment media in the United States. Nearly all the major media production companies in the US, are corporate affiliates of, or are under direct financial influence of (with advertising dollars spending and/or material purchases spending), and therefore, control of the cartel.

Clear Channel would not bite the hand that feeds it, so it routinely plays and promotes and hypes media producers who are under the control of the major record labels who buy ad time on commercial radio from Clear Channel, and the majority of these producer labels are under control of BMI, EMI, Sony, Universal, and Warner. These corporations take their marching orders from other parts of the world, and the ideas, attitudes, and beliefs they espouse through selection of entertainment media they choose to promote and exhibit to the public are without question regionally and culturally biased.

CBS, ABC, NBC, Fox are all under control of the media giants in one way or another, either directly through the cartel association or indirectly through advertising dollars spent by the giants. Economic control is the surest form of control, and it can occur in a number of ways besides shareholder stock ownership control. Even seemingly unrelated corporate entities can be indirectly manipulated and controlled by outside forces with money. Take a good look at the membership board roaster of the folks who control the National Association of Broadcasters, a virtual who's who of the media giants - of course they want more power ( http://www.nab.org/about/BoardLists/TVBoardMembers.asp ): Hearst-Argyle Television, of the Hearst magnet media giant, Disney, Clear Channel, Emmis, Tribune Broadcasting Company; collectively, through this NAB "association", they control 95 percent of all the media in America. These giants are now asking the FCC commissioners to loosen restrictions on media ownership so they can have more power to control the media.

The Internet and developing IT technologies relating to media production and distribution have indeed stripping the cartel of some of its power. Since the Internet is an open marketplace, where anyone can provide content to the public, the media giants are running into some stiff competition from independent producers the cartel does not control, and, in response, the cartel wants to seize control of terrestrial airways and further consolidate media outlets for its own media product. In asking the FCC to relax the ownership restrictions, the cartel is now trying to further consolidate its power to gain control of the Internet. Their agenda is clear.

It is already apparent that these companies operating through their cartel associations like the NAB are so big they seem to have the ability to regulate the regulators. So the courts have questioned the restrictions on media consolidation because the giants have raised it as an issue in the courts; the courts have not ruled against these restrictions. The courts are simply asking for clarification. Section 8, Claus 3, of the Constitution of the United States provides the most direct answer.

11.2. Economic Dangers of Media Consolidation.

When the market is centralized around a few players who control the means of production and distribution and who also create and control media jobs, more people will loose their jobs en mass and more American investors will loose their money en mass when the marketplace changes and the power of production, distribution, and sales is centralized and the market begins shifting. The market will change. All markets constantly change and evolve, and the media market is changing now.

Because of the potential risks involved to consumers, workers, and investors, allowing any further media consolidation is ill advised. But this is the problem with the overall American economy today - too few corporations with too much centralized power trying to restrict a dynamic and ever changing marketplace.

A diverse marketplace makes the entire market more resilient, more flexible, more adaptable to change during inevitable market changes, shifts in technology, fluctuations in supply and demand, and downturns in the economy, such as in a recession or a depression. A diverse marketplace stands up better in a world of constant change. The national public interest will not be well served by allowing its eggs to be placed in a small handful of baskets. Such a strategy is risky to American media workers, corporate investors, the public, and is dangerous to the national economy.

So in the interests of the public welfare alone, notwithstanding the valid cultural and artistic considerations and implications that have been raised by well-reasoning objectors to media consolidation, the FCC should deny any further requests on the part of the cartel to deregulate and loosen ownership controls presently in place.

11.3. Consumer Spending on Media is Stable and Increasing.

"The global entertainment and media industry will expand at rates that meet or exceed overall economic growth during the next five years, according to a new report released Monday by PricewaterhouseCoopers. Despite the economic downturn that slammed many industries in the second half of last year, the entertainment and media business is expected to grow at a 7.2% compound annual rate and reach a record $1.2 trillion in 2005, according to the second annual "PricewaterhouseCoopers Global Entertainment and Media Outlook." The upbeat report also challenges gloomy forecasts for the new-media industry, noting that double-digit growth in Internet advertising and increasing broadband access will be key drivers of its rapid growth through 2005. "The Internet is just as compelling a distribution medium in 2001 as it was in 2000," the report concluded. "The demand for online music, books, newspapers and magazines is growing, and increasing broadband Internet access will make the online distribution of filmed entertainment feasible." Despite continued "sluggish" boxoffice spending, PricewaterhouseCoopers said it expects the rising demand for DVDs to fuel solid growth in filmed entertainment around the world...." (Hollywood Reporter East, June 5, 200, "Showbiz outlook upbeat: Report forecasts record $1.2 trillion by '05" By Laura Randall.)

And this dollars-spent-by-the-consumer figure does not change much toward the downside outside of normal market fluctuations that respond to the ebb and flow of all interdependent markets, the money is just distributed among a now larger and wider market of independent producers, the vast majority of which are not part of the cartel.

American artists, who are the real producers, the real innovators, the real creators of the media and entertainment programming that the rest of the world finds attractive, will continue to produce and provide the world with as much media programming as the market demands. Diversity in the American media production sector will stimulate variety and increase sales of American media product to the world.

It makes little difference economically whether the US exports 100 million copies of media produced by one or two giant corporations or 100 million copies produced by fifty thousand producers. The overall unit export numbers will remain relatively stable and innovation brought about by increased competition among American producers will actually stimulate the development of better product and increase demand for American media in the foreign market.

The economies-of-scale profits found in large media production, manufacturing, and distribution facilities are typically passed through to investors and would normally "trickle down", but since the media giants are principally owned by foreign investors {BMI (Germany), EMI (Australia), Universal (France), Sony (Japan), only Warner has an American corporate home, and a good percentage of its assets are controlled by foreign investors}, the profits from economy of scale activities pass through to foreign treasuries.

So let Americans work to strengthen and support the national economic interests of our people and our regional and national economies first before we go handing over any more control of the store to our beloved and devoted foreign allies. Those same economy of scale monies are still present and involved in low-scale but regional and national media manufacturing and simply pass-through to American workers and small business owners when smaller but efficiently run manufacturing and distribution processes are employed. The profit is just spread around among a wider manufacturing and distribution base within the national economy.

So government has much to gain economically for the American people, from an overall physical media product manufacturing export standpoint and from the standpoint of local or regional (national) manufacturing and sales, by not allowing further media concentration.

11.4. Limiting Consolidation of the Media.

In its goals to promote competition, diversity and localism in today's media market, The FCC should retain all of the current media ownership rules now in question. These rules serve the public interest by limiting the market power of already huge companies in the broadcast industry.

Past actions by former FCC administrators, the 1996 actions that allowed media consolidation in the hands of a few powerful corporations to reach its present state, actions that relaxed the rules regarding limitations on media ownership, were ill-conceived and should be re-examined in the light of empirical market realities which may have eluded these past FCC administrators and regulators in their decision making.

11.5. Media Consolidation and the Dangers of a Propaganda Machine.

Consolidation of media is not only destructive to cultural and artistic diversity and dangerous to economic stability of the overall media marketplace, a further danger exists in that consolidation opens the door to the possibility of abuse by both corrupt elements of government and powerful industry interests as a propaganda machine. A little history is always a good reference, and no other reference speaks more clearly against media consolidation than the facts that emerged in the former Soviet Union under Joseph Stalin.

Collectivism is a political principal of Communism that gathers industry under control of the state government, which also includes media, so government can control the free flow of ideas, censor dissent, and stifle the flow of information that might run contrary to or be at odds with government agendas, to control what people think and feel about government itself. It makes no difference whether government consolidates media to create a propaganda machine or whether private industry consolidates media to create a propaganda machine; the dangers to the public and to a free society are inherent in media consolidation as such.

A consolidated media industry lends itself more readily to mischief and manipulation by forces both from within and from without of the consolidated media industry who might have an agenda that stands in opposition to the truth. It would be nice to believe that America is immune from such corruption, unfortunately, facts speak differently. If government is to err in matters relating to media consolidation, it should err on the side of caution.

The media giants are posturing themselves to combine Internet coverage with terrestrial broadcast coverage which they already dominate.

The idea that the vast dynamics of the Internet as an open media source will level the playing field in reporting and entertainment programming is not necessarily certain. If the giant media conglomerates who control terrestrial airways and print media use their monopoly over these traditional media to steer the public to content, then the Internet's value as an open source of objective and diverse opinions on the issues is threatened.

The notion of owning the medium of the Internet to control the minds of the masses is bizarre enough to cause any reasoning person to pause, but this is exactly what the media giants are attempting. Reality is sometimes stranger than the strangest fiction.

Arbitron knows what its clients want - they want to own the Internet as an outlet for their advertising and content. If the media giants can further consolidate their control over traditional media like television, radio, newspaper, magazines, and wire services, it can gain greater control over the Internet.

11.5.1. "Tell me that you love me"; the Arbitron/Edison Media Research Report 10.

Notwithstanding the fact that Arbitron receives most of its income from the very industry powers this report seems to support, and Edison Media Research, co-author of the report, is controlled by funding from the cartel, any area of industry that sits in judgment of its own causes should be viewed with suspicion.

Both Arbitron and Edison Media Research work for the giant media cartel that collectively own and control more than 90 percent of all television, film, radio, wire services, newspapers, magazines, and books in the US.

Aside from the obvious conflict of interest with a company that owes its livelihood to an industry making favorable report that supports the industry cause to the very industry it depends upon for survival, there are other problems and concerns in the report that stand out like a sore thumb. The report states:

If you asked the people on the island of Okinawa if they like their diet of fish, rice, and steamed vegetables, 3/4 of them would say, yes, we love our fish, rice, and steamed vegetables. If you asked a group of Eskimos if they like their diet of MuckTuck and Dried Caribou, 75 percent would say they love it. If you ask an Aborigine if he likes his diet of Kangaroo and Kurabo Root, 75% to 80% would say they love it. Then if you took a random survey of all the people in the world and asked them the general question "do you like the food you eat" 75 to 80 percent would say yes.

The Platonic "parable of the cave" is at work in the statistical response Arbitron receives from the public. They love it because they have nothing else to know to not love about it. Since the programming they are being fed by the major media conglomerates who control 90 percent of the media on the United States radio and television airways is the only programming they know, possibly have ever known throughout their entire life, the majority will say they love it in response to the Arbitron query because they have nothing else to compare it with to not love. When people are given no other choices, they tend to like and accept that to which they are accustomed. Asking people of they like the radio they hear every day is like asking them if they like the food they eat. But it is not like asking an Eskimo if he likes Pizza or an Italian if he likes MuckTuck.

Familiarity with the media and repetition of content is at work in the public's response to the questions asked in the Arbitron report. The psychology of the "familiar tune" is grounded in familiarity with words, beats, and harmonic tones that a listener internalizes through exposure and repetition. The known phenomena of brainwashing through repetition, by repeating the same or similar message over and over and over again and again and again to a listener is no small issue. Psychologists have known for decades that people can be programmed to believe and accept almost anything through constant repetition of various sense data. And this is exactly what media consolidation accomplishes. It limits the range of available sensory input, information, ideas, and opinions and repeats a preferred message the cartel wants the public to internalize over and over and over until the general public are all tapping their toes to the latest industry song. Does the public like it? - of course they do - the vast majority of them can not not like it.

The Arbitron interpretation of its own survey is practically meaningless, except to the extent that it tells us a great deal about Arbitron and Edison Media Research and the extent to which these supposedly independent third party measurements services are caught up in and a part of the giant media industry propaganda machine, and their opinions are biased and unreliable.

The Arbitron numbers may be 100% correct. The problem is with the way they go about collecting the numbers, their methodology, and with the spin they put on the numbers after the data is collected, with their subjective interpretation of the data. Researcher bias has been a subject of concern in the statistical method ever since the development of the methods of scientific inquiry and investigative analysis. Even hard sciences like physics and chemistry and medicine can fall victim to researcher bias. So let us examine what Arbitron/Edison says their numbers say and then take a closer look at what their data may actually tell us about the current state of the broadcast media industry.

Where the Internet wins the public's attention, traditional media looses it by an equal time factor. What follows is the conclusion that 20 million people tuned-out another form of traditional media, television, radio, film, books newspapers, magazines for at least 5 1/2 hours a week. But Arbitron does not say this in their report.

Of course, for a business whose job it is to help their terrestrial radio broadcasting clients sell ad time to widget makers who want to sell their widgets to the radio listeners, this is not a good thing to say, because it deflates the strength of the radio listener base and lowers the value of ad time, the cost stations can charge advertisers based on listener numbers and demographics. Almost 10 percent of the American public have tuned out terrestrial radio for 5 1/2 hour per week.

Arbitron's public opinion numbers regarding radio diversity (66% of those surveyed say same or less and show the public believes radio has not diversified at all or has diversified less) are not as rosy for radio deregulation and consolidation proponents as Arbitron wants to paint for its clients and the public and the FCC regulators the giants are now trying to convince to give the giant media cartel more power, so Arbitron put a spin on the interpretation of the date more suitable to its client's liking.

It is also more than a bit suspicious that this report from Arbitron should emerge (3/1/03) just as FCC regulators are considering whether to allow or disallow further media consolidation of the commercial airways and traditional media.