Courts and Conquerors: Thinking and Rethinking the Rethink Music Conference

Courts and Conquerors: Thinking and Rethinking the Rethink Music Conference

The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence.

—Johnson v. M’Intosh, 21 U.S. 543 (1823)

Waiting for Berklee College of Music President Roger Brown to open the Rethink Music conference in Boston this week, I overheard some small talk a few rows behind me. “They were afraid there’d be too many lawyers,” someone said, “so they told me to dress down.”

The Rethink Music conference enjoyed some heavy aegis: Berklee, the music trade fair organization MIDEM, the Harvard Business School, Harvard’s Berkman Center for Internet & Society. The nominal ambition was similarly impressive: “To talk about solutions to moving the music industry forward,” according to conference Executive Director Allen Bargfrede; to “foster creativity and a thriving music industry,” according to the conference website. Roger Brown offered as inspiration the British government’s 18th-century Board of Longitude and its competition to solve that problem of marine navigation. Since we now cross the Atlantic 360 times faster than they did in the 18th century, we should be able, Brown said, to solve the problems facing the music industry “360 times faster than it took to solve the problem of longitude.” In practice, though, much of the conference seemed to echo that overheard comment: the discussions could dress down to the casual cool of social media and digital connectivity, but it was in tension with the old industry, beholden to back catalogs and billable hours.

From left: Dave Kusek, VP,, interviews Metric.
Photo by Phil Farnsworth.

Thus there was, for example, Del Bryant, the president and CEO of BMI, opining on Tuesday morning that “giving things away for free” was “not building the business,” while the Canadian band Metric and their voluble manager, Matt Drouin, related on Tuesday afternoon how they built their business by giving things away for free. There was Cary Sherman, president of the RIAA, insisting that lawsuits against file-sharing end users had “clearly [indicated] to the public at large what was legal and what was not,” a day after the singer/songwriter Bleu had matter-of-factly said, “I don’t think there’s any way to go back to monetizing music.” The old system and the new system occasionally occupied the same host: Paul McGuinness, artist manager for, among others, U2, allowed as how “for a baby band, every Internet opportunity is something to be seized”—but, when allied with Bono et al., “we tend to be on the same side of the argument as the major labels.”

It was very much a music business conference. And it was very much a pop music business conference; classical music, experimental music, or the avant-garde barely rated mention, and the bulk of that came in composer Tod Machover’s Tuesday keynote (a breezy overview of gee-whiz technological advances his MIT lab has made on various fronts—performance, accessibility, music therapy—that seemed, in retrospect, like the keynote to a different, slightly more diverting conference). But there was one dominant topic that, for better or for worse, might have been borrowed from classical music’s long history: patronage.

To add to their misery, they had little hope of deliverance. For where does one run to when he’s already in the promised land?

—Claude Brown, Manchild in the Promised Land (1965)

The lesson from the money guys and the artists was that the path to salvation was in using digital connectivity to enable ever-increasing engagement with fans. “Direct-to-fan,” everyone called it, the idea that if the bond between artist and fan is strong enough, the fan will gladly pay for access, for premium content, for the sense of a less-anonymous relationship with the artist and the process. Direct-to-fan, by this way of thinking, is the new driver of revenue in the face of the fact that recordings are, now, little more than promotional material. It is, in other words, patronage. “Essentially, paying for music has become voluntary,” said venture capitalist Ron Nordin. “Essentially, now everyone becomes a patron.”

From left: Amanda Palmer, Ben Folds, Neil Gaiman, Damian Kulash at the Berklee Performance Center.
Photo by Phil Farnsworth.

The financial justification—a balancing of customer-acquisition costs (free downloads, giveaways) with potentially long-lasting revenue streams (devoted customers)—is, as Nordin’s fellow VC Peter Gotcher astutely pointed out, one long-familiar to Internet companies but long-ignored by the music industry. And object lessons from artist-panelists pointed to the success and potential of such increased engagement. Metric leveraged incessant touring and a careful tending of their fan base into self-released albums and success far outstripping any they experienced with major labels (for which both the band and their manager displayed bemused contempt). Bleu, a notable beneficiary of Kickstarter success, characterized the possibilities to be unlocked with direct-to-fan connections via the conference’s best tautology: “People enjoy spending money on things they enjoy spending money on.”

Even the conference’s novelty act could be seen as a friendly, direct-to-fan-driven rebuke to the old models. Ben Folds, Amanda Palmer, author Neil Gaiman, and OK Go’s Damian Kulash got together on Monday night for “8 in 8,” a let’s-put-on-a-show recording project: write, record, and release eight songs in eight hours, a combination jam session and proof-of-concept stunt. In the end, they only finished six songs (and it took twelve hours), but they attracted a few thousand viewers to live, streaming video of the entire recording session (“We got a bad review even before the record was made,” Folds joked), and, sure enough, the album was ready for download Tuesday morning. The assiduous cultivation of online social connections provided a ready-made audience; the speed and casualness of the experiment seemed almost designed to show what the old record companies were scrambling to keep up with, the companies where, as Folds remembered it, “you were always told what wouldn’t work.”

Still, there was the overwhelming sense that deep, diligent, personal attention to building and maintaining a fan base on one’s own was not just an option, but, going forward, a necessity. As Tom Silverman, founder of Tommy Boy Records, noted, “Labels don’t want to start from scratch with an artist”—the fan base has to already be there before a relationship with a label is even possible. Bruce Houghton, the founder of, proclaimed that creating, growing, and monitoring a fan community through social media and direct-to-fan entrepreneurship was “a required skill set for the modern artist.” Shy musicians need not apply.

A Wednesday panel on “DIY and Ancillary Revenue Streams” ended up being a combination of make-music-because-you-love-it poeticizations of the artist-fan relationship and visions of corporate brands savvy enough to want access to those enthusiastic fan email lists. A cynic’s takeaway could very well have been: spend a few years doing all your own legwork and marketing, and you too might be lucky enough to sell out. But what was the alternative? The labels were all touting their capacity for artist development, the skill to walk a nascent artist through the industry minefield—most cogent was Lyor Cohen, CEO of Recorded Music for the Warner Music Group, saying that “the only justification for a music company is A&R….We are reactivating the lost art of artist development.”

But wasn’t the minefield largely a creation of the labels themselves? And when Cohen justified 360 deals—the new contract standard in which labels take a cut of touring and merchandising revenue in addition to recordings—as, essentially, a replacement for lost recording revenue, necessary to maintain executive salaries, then admitted that, even in such partnerships, the label still maintained sole ownership of master recordings, one could only marvel that even a digitally-diluted siren song of fame remained a strong enough to keep such models going.

A Cloud withdrew from the Sky
Superior Glory be
But that Cloud and its Auxiliaries
Are forever lost to me

—Emily Dickinson

(From left) Rethink Music business model competition finalists Maxwell Wessel founder of Nuevostage, Executive Director, Rethink Music Initiative Allen Bargfrede, Fanatic.FM creator Ian Kwon, BigLife Music co-founder Eliot Hunt.
Photo by Phil Farnsworth

Direct-to-fan was the leading topic among artists, venture capitalists, and entrepreneurs (nearly all the entrepreneur presentations and business-model-contest entrants were spinning variations on direct-to-fan, from RootMusic’s BandPage, a Facebook page customization application, to nuevoStage, the winning business model, a kind of Groupon for live shows). Among the media-company types, though, the buzzword was the “cloud”—music delivery services which would have consumers access, through the Web, music files on remote servers, rather than download those files to their own machine. Talk of cloud-based music services abounded: whether subscription-based, streaming services or “locker” services would predominate, whether there was any room for start-ups given the entry of Amazon, Google, and Apple into the cloud marketplace, whether the cloud would finally catch on with consumers or not. At the very least, it seemed a safe bet that the cloud would dominate music-industry jargon for the next year or so, if not longer.

Along with the cloud came the conference’s other mantra, the expressed need for a global copyright registry, a centralized, one-stop listing of copyrighted materials and their owners to alleviate the difficulties in tracking down unknown rightsholders and clearing licenses. Rights issues are “gravel in the ears” of music entrepreneurs, according to Peter Gotcher; a “tremendous impediment to everyone in the system,” according to Pandora CEO Joe Kennedy. After a while, it seemed that every panel, by some path or another, came back around to the idea of the registry, the great leap forward that would allow the industry to emerge into the sunlight of the 21st-century economy. The devoutly-to-be-wished registry was nearly universally supported, with the question mainly being who would create and administer the thing—existing rights collection agencies, some non-profit academia-industry consortium, some private, for-profit entity. (Nobody held out any hope that the U.S. Congress could ever be spurred to such action.)

Joe Kennedy, President and CEO, Pandora.
Photo by Phil Farnsworth

But it was the one dissent, at the very end of the conference, on the final panel, that crystallized a hazy sense of skepticism. Larisa Mann, a DJ and academic at UC Berkeley, provocatively framed the registry talk in terms of Johnson v. M’Intosh, the Supreme Court decision that established the foundation of American property law—and, in the process, facilitated the expropriation of Native American land. The points being: Who compiles the list? Who gets on the list? Who gets left off? I thought about, say, how poorly classical-music metadata—artists, track names, credits—meshes with a platform like iTunes, and then I thought what would happen if that was the model for a database governing rights, licensing, and royalty payments. Imagine an industry whose large-entity representatives view DIY or deliberately independent musicians with either puzzlement or a kind of hostile pity—both of which could be sampled again and again on industry-player panels—and then imagine that industry exerting its influence over the future structure of ownership and revenue.

It was mostly left to the academics to raise such objections, to note, explicitly or implicitly, that, at their core, the conference’s concerns were matters of power and control even more than creativity and opportunity. On a Wednesday panel concerning “Alternative Compensation Schemes”—a perhaps-pejorative term for fresh approaches to managing and distributing royalties—Harvard professor Lawrence Lessig, speaking of policy fights, might well have described the conference as a whole: “It’s not a battle of ideas,” he said, “it’s a battle between those who make money under the old system and those who might make money under the new system.”

The political and financial sway of the old system lingered in the background of a trio of papers presented on Tuesday: Peter Alhadeff and Caz McChrystal discussed the quirks of U.S. copyright law that have resulted in a steady erosion of the mechanical royalty rate vis-à-vis inflation; Kaya Köklü cast a wry, skeptical eye on the French three-strikes approach to online copyright infringement, an enforcement scheme of questionable effectiveness, and one, Köklü hinted, resulting from the superiority of corporate lobbying. Most intriguingly, Giuseppe Mazziotti’s study of the EU’s push towards a harmonized regime of rights collecting societies did not leave unmentioned such a move’s privileging of larger corporate interests and threat to cultural diversity. A marginal issue in this conference’s context, for sure, but also a reminder that, for all the talk of democracy and access, the very industry being reinvented or reestablished was always a little, well, colonial.

A few minutes later what remained of Bendicò was flung into a corner of the courtyard visited every day by the dustman. During the flight down from the window his form recomposed itself for an instant; in the air one could have seen a dancing quadruped with long whiskers….

—Giuseppe Tomasi de Lampedusa, The Leopard
(1957, trans. Archibald Colquhoun)

Not that the industry paid much attention. At most, twenty people attended that Tuesday session; everybody else was down the hall, taking in the prospects of cloud-based consumption. And even that was at least partially an excuse. Kulash had jokingly asked, “Why does everyone pay a lot of money to come talk about how they can make money in music?” But, of course, they were also there to network, to make connections with industry executives and with each other, to meet and be met. (I was blessed with multiple iterations of the experience of having an attendee nonchalantly veer close enough to me to read my nametag, then just as nonchalantly veer away once they realized I wasn’t worth talking to.)

It was the engine of the old system, still humming—whether in counterpoint to the new reality or in defiance of it, whether out of determination or inertia, I couldn’t quite tell. The industry didn’t seem to be in denial about the spot they were in, but was the complementary confidence justified? When Thomas Hesse, the president of Global Digital Business for Sony Music, blandly touted the VEVO video streaming model as an opportunity to “reclaim the platform,” the tone of the old order trying to reassert itself was faint but noticeable. The corporate attitude might best have been summarized as a version of Lampedusa’s famous formulation: everything has to change in order for everything to stay the same.

Incidentally, remember that discussion of the brave new world of business casual I overheard at the conference’s outset? It was only a few minutes later that I learned, via the Internet, that Poly Styrene, the founder and lead singer of X-Ray Spex, one of the most indelible bursts of punk, rock and roll’s last great fury of innovation, had died.


Matthew Guerrieri

Matthew Guerrieri rethinks either too much or not enough.

NewMusicBox provides a space for those engaged with new music to communicate their experiences and ideas in their own words. Articles and commentary posted here reflect the viewpoints of their individual authors; their appearance on NewMusicBox does not imply endorsement by New Music USA.