 I think we are, I think our mics work. I think we're gonna get started. There's some people still making their way in. Grabbing lunch, feel free to help yourself to food in the back. Thank you all so much for being here for this conversation about Napster at 20. And special thanks to the team of the Recording Artist Project and the Journal of Law and Technology who joined us up with us at Perthman Client to put this event together. I'll just say two words on the sort of the genesis of this. We at the Cyber Law Clinic here at HLS are celebrating our own 20th anniversary. This year the clinic was founded in 1999 and have been thinking about interesting events that relate to some of the tech law issues that have been on our docket for the last two decades. And it just so happens that 1999 was also the birth of Napster in Sean Fanning's dorm room just across the river here at Northeastern. We thought it would be great to bring together some amazing experts. So we're gonna have a conversation here for 40, 45 minutes. We're gonna leave plenty of time for you all to ask lots of questions along the way. And we'll go from there. We have a really interesting mix of people at the table today. I'll say really briefly some intros, then full intros are in the materials and you can introduce yourselves as well. It's the extent you wanna provide some context for your remarks. Dave Hurley, he teaches at Northeastern, is a music lawyer and a musician as well and a member of the band Opositive, sort of at the right timeframe here to talk about Napster in your heyday. So we'll get sort of the mixed legal and creative perspective. From Dave, great friend of ours, great friend of Berkman who's done a lot of stuff with us over the years. Jennifer Jenkins here from Duke who teaches music law, teaches trademark related issues at Duke, co-wrote the coolest book. This book thefts a great graphic novel about the history of the music business as well as a really terrific open IP case book which if you're looking for a resource for an intellectual property course it's fantastic and it's available online and you should check it out. And then Nancy Bain from Microsoft Research who among many other things has a really great book that came out last year called Playing to the Crowd that's about sort of artist, fan engagement, our token non-moyer, I think, is that right? Yeah, so Nancy's gonna give us her perspective as well. And I thought I would ask each of you to just say a few words about either about Napster or about the wake of Napster over the last 20 years and we can dig into some specific questions. You wanna just come down the line, Dave? Sure, sure. So I teach at Northeastern, I've been teaching there for more than 20 years, I was actually teaching copyright before pre-Shun Napster and then post-Shun Banning. And so I remember some of my students were saying, Professor Hurley, you better come and see this thing, you better come and see this thing. So I went to a dorm and I saw the Napster app and I said, oh, come on, not really. So I said, the Simpsons theme song, go ahead, get me the Simpsons theme song. And I'm like, you know, 20 seconds later. Da-da-da-da-da-da-da-da-da-da-da-da-da. Oh my God, right? So it was the end of the music industry, also the end of copyright as a very sort of well-established field, right? It became completely topsy-turvy after that. And it upended the way that I teach copyright law, the way that I understand copyright law and it makes it a very dynamic marketplace and it kind of creates all these policy questions. Like what should copyright do? What kind of progress should it support? Whether it's progress for the owners of copyright or for the public good and how do you sort of balance these issues? And so it's just been a kind of a, it's like that moment when the Wizard of Oz I go into color, I sort of, I look at my sort of pre-Napster period as the black and white era and then all of a sudden it just completely changed. And also the effect that it's had on business models and the music industry, I mean, when I taught music industry back in the 20th century it was pretty well-established. And now it's completely different and there's so many different variables and dynamics and values to be tried to be unearthed. And so it's completely changed the entire landscape, which I think is actually a positive thing. And I don't think anybody's business model deserves to be permanently enshrined just because. So I'm gonna sort of leave it at that. That's great. Jennifer? I'll concur with that. First I'm gonna turn on my mic. Excellent. Hi everybody. Thanks for coming out. Thanks for putting this together, Chris. So I started out as a copyright lawyer in 1997. So shortly before the birth of Napster and I've been doing music copyright, teaching music copyright for most of that time. And I think we're at a real milestone now. I was reflecting over the past 20 years. So it used to be that when I asked my students, why are you in this IP class and why are you in music copyright? Almost all of them would say, well, my little brother was using this thing called Napster. My roommate was using this thing called Napster. Somebody was using something called Napster. And then it went away and my free music went away. And I said, what's going on, mom? And mom said, it's copyright law. And so I'm in your class because I wanna know who shut down my Napster. And that went on for a few years and I've seen this seismic shift in the past few years. This is the first year in my copyright class that every single person is using Spotify or a paid streaming service. And they're all paying for it. And so everyone was file sharing and then there was a period where people were experimenting with freemium and dealing with the ads. And now my students all around the ages of 22, 27 or so, they all find that the price discrimination works and they're willing to fork out the 499 or the family plan. For so, I mean streaming is here. The first half results for 2019 show that streaming is now accounting for 80% of industry revenues. And so I think we're at a milestone both looking back and thinking about what we can learn from the Napster experience and everything that's happened since then and the lawsuits and that sort of thing. And also looking forward and trying to predict imperfectly how streaming is gonna change the way music gets made. Like we're always gonna force everything in the first 30 seconds so you can get paid for your stream. How is it gonna change how people get paid? The pie is bigger but some people are doing better than others in the streaming economy. And how is streaming going to affect and I think this might be your expertise, how music gets discovered. You know, we don't listen. I used to listen to albums. I remember albums. I own all of these albums. I have many formats. I have all those seven albums but now it's a playlist. And it works. If Spotify recommends something to you you might get turned on to it. So I mean, I think we're in an inflection point where we can learn from the past and all the disruptions that happened in the wake of Napster to the music industry and mistakes that were or were not made. And then we can also look towards the future and try to see when the dust settles what the music industry, the made paid discoveries aspects are gonna look like. So it's an exciting time. We have the same experience and I compared notes. I both have taught a music copyright class for about the last 10 years and my icebreaker question first class is always how do you get your music or your content and exactly the same experience. It's morphed over time to now where it is not just mostly on demand streaming, not just mostly paid but basically 100% Spotify paid. Almost 100% Spotify, yeah. Nancy. Hi everybody. What are you doing here as a non-lawyer Nancy? Tell us about your amazing work. I'm just trying to get the Harvard cred. It's an influencer era, I need all the credit I can get. I come at this from communication studies. I study online practices. How people use communication technologies in everyday life and for almost 30 years I've been following online fan community and what happens when audiences get together and start chatting with each other. So from my perspective, Napster is one moment in an extremely long history of relationships between people who make music and people who listen to music and indeed of the idea that those are separate groups in the first place and therefore ought to be subject to different rules around the economics of their engagement in those practices. So if I think about the Napster moment, I think about it as a moment where the internet had empowered audiences to organize at scales they had not but they had always been organizing ever since they got torn asunder from the sort of hey, we're going to a parade and we're all going to make music together and you better pay for this music or else you're a thief kind of language. So the internet let them get back together but also let them really be super scaled so they could organize into structures that persisted they could share information at a scale they never had they could share interpretations at a scale they never had they were forming personal relationships they were building identities of experts in their own so there were all kinds of ways in which the supremacy of gatekeepers was being to use the word disrupted but it was it was being really challenged that power dynamic between the people who control the means of production and its distribution and the people who were meant to be consumers of it. So while I agree that we're at an inflection moment I always understood Napster as market failure you know people this is bullshit we want to listen to music wherever whenever we don't care about territorial licensing why do I have to this is stupid right and it is stupid it remains stupid and so Spotify and those things are a great solution to this problem we've come up with solutions but I would at the same time say we've in part come up with a solution by reaffirming that audiences are it's nice if they're communities of certain types but their real role is as a customer and they're they're belonging to capitalist logic not a cultural logic. That's great I think that's the new tagline for my music and digital media classes this is stupid it remains stupid and the catalog which is great can we talk a little so we've talked about how massively disruptive this was at the time Napster comes on the scene in the late 90s Dave as you say you can get instant access to virtually anything can you situate us a little bit and tell us what else was going on in terms of music distribution at the time what the music industry looked like for artists and consumers and then legally if we want to kind of go we're here at a law school so we're not going to go deep down the rabbit hole of secondary liability also maybe talk a little bit more specifically about what legally was so interesting and complex about this service that again facilitated our sharing the individual put the peers put the two individuals together and allowed them to share content so can you give us a little sense of that? Sure I mean the thing that I was always struck by is to sort of have what the marketplace does and then the law sort of response to that and lawyers and everybody sort of reacts to what the technology allows and the old business model was a thing business it was thingy I go to Harvard Square I go to New Brick Comics and I buy a thing and I bring the thing home and sort of huddle around the campfire like I'm putting a log on the fire right and sort of sit in there and playing music and being stuck in a place and I think that with the liberation of music from containers and content from containers it just opened people up to so many more possibilities I can go where I want to go I can share this in a way that I want to share to me it just seems like the music industry is the at least well the recordings industry was the last one to or maybe still the last one to really listen to what people want and how do I do this people still love music it's still like this incredible thing that just I wear a Pink Floyd t-shirt more because I want to let you know what I'm about and just the fact that I like how this shirt looks it's like a deeply psychological realm and I think it's going to continue to be that way and I just think that the music industry was someone stole their cheese right and so they were like looking we always make money this way we want to keep making money this way and they were able to make you buy a $17 CD for the one recording you wanted right and so they bundle this thing and it was and it was frustrating to people so all of a sudden when you had like Napster and file sharing you know what was the peak user base of Napster like 85 million or something like that it's like I talked to my students in my at Northeastern I say whenever you see 85 million people doing something don't take up your sledgehammer right away like try to figure out what are they doing what's bringing them there what's the value proposition how can we sort of fan the flames of what they are finding interesting and the music industry just couldn't wrap their heads around it they responded in the classic old-school sword and shield IP approach those are mine stay away I'm going to slash you down it was not very sort of open innovation a lot of the things the internet has taught us about sort of you know generativity and the idea of sort of the you know opening up to a larger community and just learning from that they had a really well-defined business model that they couldn't get their heads around and frankly I don't know what they could have gotten their heads around you and I had a conversation once about Kerry Sherman who was then I think he was a lawyer for the RIAA and he was saying he was asked by John Zitrain actually at an event at Berkeley put on several years ago maybe ten years ago and he he asked Kerry Sherman if you could look back differently at a crystal ball or a time machine you could go back to 2000 what would you do differently and Kerry Sherman said nothing we wanted we needed to enforce our copyrights and frankly I don't know that they could have in a way responded any differently I mean BMG tried right BMG tried to invest in Napster and what did they get they got sued by the other labels so there was it was I think a possible difficult for the labels to sort of collaborate okay how can we get around this and do this and so I think it was just it was the problem was in the intervening 10-12 years people began to look at music as having no value and so we as an industry have had a super hard time kind of recovering from the fact that music wants to be free it doesn't really want to be free I want it to be free but music doesn't want it to be free so how do you find that you spend a constant evolution in the business models and analyzing the market and figuring out how do we structure deals in a way that really allows us to capitalize on this instead of gnashing our teeth and looking backwards sort of rolling up our sleeves and looking forward a little bit maybe about that and also maybe about the legal landscape at the time what was this how did Napster upend this world of contributory and vicarious secondary liability in the copyright so I guess I'm here to talk about the sledgehammer as the other lawyer on the panel I have been thinking about if I was Kerry Sherman or I was Hillary Rosen, the people running if I was in one of the universal if I was in one of those board rooms what I have done anything differently if A, your business model is going really well and it was going really well CDs like for one song you had to buy a CD and they controlled everything they controlled CD making it getting it to tower records selling it business was Backstreet Boys, Dr. Dre people were making money and when your business model looks good disruptive technology comes along it's a lot easier to focus on the threats to your robust business model than to embrace the opportunities and if you focus on the threats how do you react to it you bring some lawsuits you start suing I do think there are missed opportunities I mean there were people and you know there were people at the labels were talking about BMG who said hey you know 60 million 80 million whatever this is this is like a user base that you can market to that you can capture through a single platform this is gold why don't you partner with Napster but there are a number of things going on one of the big things that was going on by the way was just the MP3 audio compression format Napster couldn't have existed without that and made music portable with the download speeds of the time and you know there were people like Neil Young I love Neil Young you know who just were offended by the very like the sound quality of MP3s and you know and there was a cultural you know the you know Sean Fanning and Sean Parker these like you know geek dudes and you know they just see the tech community the disruptive community and the content community you know were very siloed so I mean there was a lot going on but the missed opportunities occurred during the stream of lawsuits and the copyright policy question at the heart of the Napster case and the secondary liability that Chris was talking about is an important question that still resonates today because the tension is so you might think copyright law that's content regulation right as you know what you do happen to use content Napster is copyright as technology regulation the lawsuit is against Napster not for Napster copying and illegally downloading music but for providing the technological tool that allows its users to infringe copyrights and so the nerdy secondary liability question there is under what circumstances are we going to hold a technology producer liable for the infringing activities of the technologies users when that technology is capable of both legal uses and illegal uses and that's a tough one because we're always having to recalibrate this balance between giving you know real not symbolic protection of copyright holders who were freaking out at the time and not impinging the development of new technologies so funnily enough the case of the forefront when Napster came along involved the VCR the time they called it the VTR the videotape recorder and those of you who are taking Chris's class know about this but just very quickly when the VCR first came along and allowed people to record shows without permission it looked really scary in the movie industry so Jack Valenti who was at the time the head of the Motion Picture Association of America said quote I say to you that the VCR is to the American film producer in the American public is Boston Strangler is to the woman home alone and not only this Boston Strangler was Japanese right because Sony was making it and so they were terrified that this VCR was going to kill the movie and TV industry so they sued but they weren't suing the people who were using the VCR to make libraries they were suing Sony the producer of the VCR piece of technology and so the Supreme Court sat back secondary liability is not in the copyright statute so Congress has not spoken on this so this is judge made law so in a five to four decision the Supreme Court way back in 1984 said you know what we're a little troubled by this you know we think we should not really move to hastily when Congress hasn't acted and there's nothing here in the statute so we're going to go ahead and look at the patent statute and import this doctrine it's called the staple article of commerce doctrine which is if you produce a technology that is capable of both licit and illicit uses you're good you're not liable for secondary liability for copyright infringement if quote your product is capable of substantial non infringing use the VCR was capable substantial non infringing use Mr. Rogers didn't care he had testimony in there Mr. Alfred Rogers he said I don't care if you videotape my shows that's a non infringing use and time shifting was found Sony is on the books it's the Supreme Court is the statement on secondary liability that's from 1984 2001 rules along you know Napster's in front of the Ninth Circuit and Napster's capable of substantial non infringing use there were a lot of artists who were happy to have their stuff on Napster because it was getting discovered there was public domain music on Napster but wait a minute the sheer magnitude and scale of 80 million whatever the number is I've seen different number 60 million whatever the number is of the infringement that was going down on Napster was terrifying and so you see during the argument to see the Ninth Circuit trying to figure out oh my god how are we going to deal with this you know it cannot possibly be true that Napster is legal so they cabin Sony and basically said Sony only applies Sony does not apply if the technology provider has actual knowledge of what's going down Napster did they had a centralized index or if they have the right and ability to control what's going on okay so that's a long story short but was this a victory for the music industry and that's you know the sledgehammer saying I would argue no it's like a game of black mold it's like knock down Napster pop scruff and yep pop scruff knock that down line word knock that down caza and it was like a game of black mold while all these lawsuits were going on what wasn't happening was adapting to the new business model that you know took the intervening 20 years to really settle so I think it when I look back and again hindsight's 22 I don't know if I would have done any better but I think one takeaway is look at the opportunities and not just the threats and you know sometimes copyright is a very awkward tool for technology relation maybe you need to adapt do you want to jump in on any of that Nancy and a couple pieces there that are interesting to me from the work you do around in particular they've been the statement about I as the fan want the music to be free but as the artist you don't want the music to be free talk about this sort of tension between me loving the artists that I love and wanting to support them and also living in this amazing new world of ubiquitous online access to everything at in Napster's case no cost and even today at Spotify pretty low cost yeah yeah I think when we think about the idea that if you take the phrase music has no value where people learn that music had no value I think that's at the heart of the missed opportunity right I mean music had so much value that 880 million people built a whole new system and devoted their processors to sharing music so clearly it had value to the fans or they wouldn't have been doing all this stuff and fans continued to do all kinds of creative things to share music because music has so much value it's just not all always monetary value so from my point of view the lost opportunity was in imagining that controlling the distribution of the recording was the heart of where music's value lies in the first place which is where all the copyright issues congregate and all the attention and all the conceptualization of what is value in the first place but from the point of view of a fan if you hear a song that you love and you don't share it with your friends what kind of person are you you know it's like I know this really great restaurant but I'm not gonna tell you what it is because you might go eat there it's just being a bad human so from the point of view of of people who listen to and love music it's not just that it wants to be free it's that it's a way that we build meaning with each other and build culture with one another so a Pink Floyd t-shirt has value not because you can press a button and hear a Pink Floyd song but because it has all of this social signaling and community value and differentiating value and and so on so I guess that's most of what I have to say about that that's great I think a lot about this sort of hindsight 2020 question that you all kind of teed up and I was at a record company at the time not of Napster but a little bit afterwards and I do sometimes think back because the narrative around it is certainly one of missed opportunity of only that the companies had not sued and had had to fit to do the deal then that they ultimately ended up doing with the legitimate streaming services today it would have been a really different different landscape and I wonder to what extent we think that's true and what would a deal have looked like at the time with Napster that artists could have lived with that the labels could have lived with and that consumers could have lived with I don't know if anyone has thoughts on that well I don't think necessarily the economics would have been that far off from where they are now it might have been 10 bucks a month but the golden opportunity would have been all the fan data you would have known who they were so like when I again to go back to the prior model when I went to the Harvard Coop by a CD on a record label they had no idea who I was the band had no idea who I was and the big deal we were realizing now was that it's important to know who your fans are so you have that community so you can continue to build music is about community so there was I don't necessarily think that it would have changed the economics maybe it would have been slightly more I think that the prices were depressed because we had that decade where music was you couldn't really charge for it so I think the price did go down but I think in the end of the day we just missed an opportunity to really change from a a thing business to a relationship business and we really could have cultivated that in a huge way and even do tie-ins right where the future is going to be maybe bundling recordings with ticketing services and with merch and sort of all the things you want to have from your artist into deals with other companies so that recordings isn't just the only thing you're doing it's just a spoke in this wheel that has a lot of other values that can tie in Spotify is the leader now I don't know how many more services a standalone streaming company or features a standalone streaming company can have a lot of recordings pretty high quality social feature placed real quick easy interface not a high price point what more can it do really but I think there are still opportunities for us to sort of envision what we would want from an ideal environment you know fan data or I mean when I travel I go to a town and my phone knows what I like and has a band playing in town and I can just go to the club and swipe my phone and get into the band for free and they know who I am if I want to share that information there's a lot I think that can be done in a much larger business model context and I think that you can look at it sort of myopically just as how we charge for recordings and I think that's not really a widening perspective now there was actually a study that was done around the time the Napster litigation was going on and that some people were pushing for a deal with Napster some of the labels that suggested that people would have been willing to pay $15 a month so I mean I agree I think people would have been willing to pay for it and you know one of the arguments was that it wouldn't be fair to our artists if you know we shift and you know we would have to redo their contracts but the fact is the music industry has had to shift I mean when Apple basically after Napster lost there was a vacuum and Steve Jobs came in and he's like I'm comfortable with disruptive technology here it's an iPod and you know they made significant changes then so I mean it's not like you know they aren't able to pivot in incremental ways drawing together what you just said and what you said about value yes music absolutely has value and the overall pie is bigger it's just that it's being divided differently and you know one of the things that's been consistent and growing is live performances and that's a kind of value I mean people are willing to pony I mean I don't know how much you have to pay for a Taylor Swift ticket but I'm thinking it's pretty high but I mean you know maybe it's $4.99 a month for Spotify but my students will fork out $200 to go to a concert because they love music and that's you know that's an experience that's the good that's the form it comes in the relationship with the artist the merch that's over there the pinpoint t-shirt whatever it is that you know is worth to them so I mean it absolutely has value and it's just that the pie is still there but the division of revenue streams has changed significantly Nancy other thoughts on sort of the value the value question and I guess I'm I'm thinking about one of the we're talking about this moment that we've arrived at where we had the Napsters of the world they resulted in litigation they were sued out of existence and now we live in this in this world where we have ubiquitous access to stream music I think one of the big questions is whether the royal the amount of money that's going back to the artist is enough even acknowledging that there are many other royalty streams of many other revenue streams that we should be thinking about is that is that a long-term problem is that a legacy of Napster and is that a long-term problem does that have to change or do the artists have to change to adapt to the fact that reported music revenues are always going to be much lower than they were in the 90s which was sort of the absolute high point of this business if you have thoughts on that well yeah of course I have thoughts as though royalties were going to artists in the first place right I mean let's I think in these conversations we so often romanticize the music business as before as though the people who wrote the songs all the money just showed up like magic when there's and of course we know that's not what happened that people were not only were they screwed out of their rights but there were active efforts to inactively not try to find them if they moved so people were denied their revenue all the time before the internet came along before file sharing came along my take on this is that audiences are always willing to pay they're not all willing to pay the same amount and I don't think that it's a thousand true fans formula but prior to Napster we were already seeing online crowdfunding happening for music Kristen Hirsch was living on fan subscription for many years on a model where people were paying fifteen dollars a year and they were getting an mp3 every month that started in 1996 Marillion had fan funded North American tour for which everybody who had contributed to the fan funding then bought tickets so it wasn't even that they had prepaid they had just paid twice so which points to the idea that different people will pay different amounts and I think one of the missed opportunities that persists in the music business although we kind of get it with the whole super fan thing is that some people will pay much more and the music industry always set an upper cap on how much you're allowed to pay and if there's a margin above that it was going to some third party not to the artist so you would get people doing things like buying ten copies of a CD at a show even though they already had it because it was a way that they could at least give some money and they knew that the artist was going to get it or buying t-shirts or when I say this super fan thing with some dismissiveness part of that is because a lot of people don't really want the poster in the hat and the t-shirt they just want to give the money and there's not really a way to go don't sell them to me all that stuff it still gets set up as this for that transaction when the fact is some people are just willing to pay more for the same thing I just want to follow up quickly on something Nancy said I was in China for about a week and I was speaking at a forum there and one of the things I realized I went to Tencent and saw their corporate headquarters and saw all the things that they're doing and one of the things I realized is how much they capitalized on that fan enthusiasm much more so than we do here in the States they actually have during a live stream people can just give money like in a tip jar as a matter of course that goes right to the artist some people buy 10 copies of the same record because they know the money is going to the artist and I feel like that kind of ties back into the reason why we are drawing to music in the first place that connection that we have and I feel like there may be some ways here in the States of changing people's perception of the business model because I was a recording artist back in the 80s on Epic Records and I never got a royalty he's significantly unrecouped right and they were even like Roger McGuinn he spoke before Congress talking about how their record industry are working he said he never got a royalty from Columbia being in the birds Roger McGuinn never got a royalty that's crazy right but so I think though one discussion I've heard about is this idea of rather than everybody's subscription money for Spotify going into a pool and it's divided up by enumerators UR monostreams, denominators and total streams what if my subscription money went to the artists that I streamed and not go to the pot at large that way if I play one artist a lot then all my money goes right to that artist not to a Nickelback wouldn't fans feel better tap that emotion that people have about buying 10 CDs at the show because my money is going right to the bands that I really listen to a lot and that seems to me to be a much more fair allocation of my subscription money going to the artists that I actually listen to or the business model which distributes everything according to sort of market share I just want to second what you guys are saying you're absolutely right I mean if you look at the charts it's incredible how little money because of contractual arrangements and other things actually makes it back to the people who are writing the music or performing the music and music has an income inequality situation too I mean there is a superstar effect and if you look I don't have the charts here but there's a great book in 2019 called Rockonomics there's a lot of charts in it you look at the charts like the top echelon of superstars makes this much of that money and then everybody else they don't see a royalty checks they're significantly unrecouped and so I mean there's definitely a way to A make the distribution more fair and B look at more artists to fan direct artists to fan models cutting out the middleman I mean we have the technology now to cut out the middleman in many cases in which my $10 goes to the person and I want to listen to it and I think there's a lot of opportunity there for fans and for artists Yeah I would say there are different kinds of middlemen because we do still value somebody in the middle Bandcamp would be an example of a different kind of middlemen where you can pay what you want and Bandcamp's model is that they take a percentage of it so if you're not selling anything they're not making any money off of you they can't, no problem I wanted to follow up also on the user centric streaming model which is what you're talking about Deezer is supposedly giving that a try there is a research group out of the University of Oslo that did a lot of research with WIMP before it was consumed by Tidal and they had access to all of WIMP's streaming data because they were in partnership with them and what they were able to they tested this idea and they showed recalculating their listening figures that a user centric streaming model would make a very, very small difference for the people who were totally at the topic this income gap while making a huge difference for people in the middle and the bottom so it's a really compelling idea and then we go back to the idea everybody yells at Spotify right but the labels are kind of involved in these negotiations right it's not like it's all just between Spotify and the artist right absolutely I want to give my friends a heads up that we're going to open up to the audience in a few minutes but one so they'll come around with microphones one thing that we've talked about a couple times we've talked about sort of the legal changes the business changes and then as a music fan we've talked about the need for curation and music discovery and I wonder if we can talk about that a little bit about one of the things that Napster changed significantly is the fact that I had access to all this music for free it changed obviously the legal landscape but it also meant that you now had to sift through 10 million 20 million whatever it is Spotify these days has 40 million something tracks the number goes up every day I look at it what does that mean for how individuals discover music find new artists again I was someone who's been a die-hard music fan my whole life I was always talking to friends and listening to radio stations and watching TV shows and you know reading zines and then ultimately transformed into looking at blogs to kind of find what the new thing is how does that work in a world with ubiquitous access to almost everything well to me it's a playlist a sort of a new curation mechanism and they know what you like they know what you listen to they know what you add and they have these and behind all of that data I bought you personally they also have Echo Nest sort of calling all this data from however many millions of data points they had to come in so to me whatever mood I'm in I just sort of pop that mood on to Spotify and I hear something and it's like oh that's pretty good and I add that to a playlist so I have a slight way of getting into a zone and then I kind of use that as a way of sort of adding to my personal collection so in the old days you could be lazy because it was sort of top-down mass media these are the songs you know and then you're getting right and I listen to college radio because it's an amazing college radio town Boston was unbelievable and you had this incredible diet of people who cared a lot about music and so that was reliable and then as you say then you had sort of the Napster effect and then you have this infinite sort of choice in trying to find the right grain of sand and the desert was impossible and so curation is a huge piece of that right and so there are a million places you can go to find that so I think in some ways everybody maybe has their personal method of going to either certain sources to get what they want but everybody sort of has their own little private universe, their own private headphone Idaho right where they're sort of you know they're it's great and it's not as hard it's not as labor intensive as surfing blogs that was a lot of work this is really good I like that and when I download that I'm going to add it to my player that was like a multi-level effort now it's just much more readily available so it's curbing I told this one of the middle men that we still need is the curation aspect and I find the combination of data analytics the vast amount of data and you know human curation to be fascinating and you know it's better than clear channel telling you to listen to and pale and everything and I love college radio too but I mean do you know the data that's being collected like they can cross-reference what you're listening to with what the weather was like where you were listening to it what time type of day it is they can look at what I'm listening to and then look at what you're listening to and if we listen to the same song they're going to recommend something else that you're listening to to me and so I mean the data that's out there that you know services can use for curation in addition to the music genome is completely fascinating and this is entirely anecdotal but I mean I could ask you guys does Spotify kind of serve up things that you think actually yeah I do like this song whatever's going on in the black box and working out okay I mean you know you could I think it's a wonderful time for music discovery and it's certainly much better than you know the push model back in the days where it was just you know what actually made it to the top 40 and was playing in radio but I think there's a middleman that's very important the human and data curation middleman oh boy I have so many thoughts on this one yes you have so much more about this I'm all about yeah no I think the curation pieces is huge and I I certainly curation has shifted over to algorithmic recommendation I don't think there's any question about that I wonder sometimes to what extent certainly Spotify serves me up gems that I like sometimes I find myself wondering if it's training me to like music that I didn't like before I find myself listening to disco no I'm a punk I don't like disco but this song is different there are things about algorithmic recommendation that I think are really are sometimes quite magical or shockingly precise and yet at the same time it's shockingly poor how much of the music I actually don't like as a person with very strong musical opinions so yes but also I miss the community of the record store who knew my tastes and would say this is one you need and that really has been made so much harder and not just by music streaming and the scale of ubiquity but also by the shift to social media platforms that have really undermined the ability of freestanding groups and you mentioned blogs which were a lot of work but if you had a trusted blog that you knew they were going to be posting mp3's you had a good odds of liking and now you're trusting and you're satisfied to deliver the right stuff maybe that trusted blog was a little more trustworthy so I kind of have some remaining skepticisms and I don't think we really fully know yet the cultural ramifications on music taste or production of algorithmic recommendation the shift to mood is huge you know certainly we used to say oh I'm in the I need something I'm in that angry mood on this record right but we didn't then automatically get generated the next one and the one after that and that I think is a real shift to have mood be the dominant entry point into defining what music we're going to listen to in a moment and how our tastes rivers will flow that's a real change the other piece that I want to point out is that some of those playlists are curated but a lot of the recommendation algorithms it's true all that magic data exists out there but in fact a lot of the algorithms are much cruder and many of them are relying on things like users who put this on a personal playlist also put that on a personal playlist so some of these things that appear to be it's amazing they're pulling data from 87,000 sources and waiting it in real time deliver you the songs you love in fact it's like well Steve put that on a playlist along with that other one and you seem to like some other songs Steve likes okay you know it's just an automation of the record store thing writ large and it still is social recommendation underneath it's just a little more automated but still often I think much cruder than people recognize what mood does disco go with strangely enough it seems to go with kind of a Caribbean lounge you know I get French lounging girls and disco we'll throw it open Megan and Ruben and please put up hands if you have questions thoughts concerns Aaron we got one of the back from Kyle and then over there on Aaron yeah hi I love the idea that we move from Napster to these streaming services for algorithm recommendations I'm discovering new music get all this good stuff but my concern is when I had Napster and I had CDs actually owned and controlled them in some capacity and I know you've all probably read the end of ownership but my concern is that with all this streaming have no ownership of this music anymore and that's a concern and I know we're talking about curation but what about preservation because if the streaming services decide to turn themselves off we don't have that music anymore it's not sitting somewhere where we can access so I think the sacrifice is what I'd like to hear about because when we move from Napster to the streaming services we sacrifice our own personal collections that we really own and control and share and lend and loan and all that good stuff so some reflection on Napster's move in that direction Kyle is a copyright lawyer who spends all day long hanging out with librarians that's a great question about preservation it's totally true and I agree with that in fact if Spotify loses its deal with Universal then a huge hunk of my listening library kind of goes away by the same token a bunch of vinyl which I can't bear to part with but I don't have a turntable anymore and even CDs they're going to keep making CD playlists whatever form you have these things in as the technology moves forward you have to cascade your collection to some new way of playing it so yeah I mean when I went to school the big thing was walking in with my record collection and plopping it down and then checking out my roommates record collection and wow you like that too it was a huge it was a physical activity kind of going back to like putting a log on the fire and sitting in front of your speakers and it was a very tribal collective experience and ownership was a huge part of I mean to terms with music but it's the end of ownership as we know it right and so it definitely is it's not that anymore and as much as I really used to love going to record stores you know it's like whenever we're on tour first thing we'd go to would be like a record store to find what's going on and people that we were sort of sympatico with and just to see what was going on what the pulse was of a CD we were in that the sort of the community is there but the physical space that has gone and I think we're we're in a post physical era now and it's just one of those things that I think personally at least it's just sort of the nature of technology and progress I don't know if it's progress in the way that many people would like it to be but it's just sort of technology is dictating how that goes I just want to say absolutely and the end of ownership great book but you know there are legal rights that go with ownership most notably copyright has this fun little section 109 which is the first sale doctrine which says if you own something you can give it away you know I can hear David here all my old LPs you know get that record player right and you know that that doesn't exist and so I mean you know ownership versus rentals you know significance legally and it is I mean you know it means it could be a favorable our stupid sonos speaker system that we paid so much money for will not play the music that we own it refuses it's like we have no way of doing this we're only going to play stuff from streaming services and it's like wait the library that like decades of massing so there's a hardware connection to here's my very expensive speaker won't play the music I own happy to play what's going on in Apple music so I mean I mean I think that genie's out of the bottle I think I don't think we can clamor it back I know people who still buy CDs interestingly people the CD market still exists mostly for old cars because if you have an old car the only way you can listen to music while you're driving so yeah some people still own their music but I mean I just couldn't agree more with what you said yeah I think that the genie's out of the bottle but I think we can think about it in other ways like why is it that if Spotify goes under we've lost all the metadata about what was in our playlists and our libraries where we're all lawyers we should be fighting for data portability so that at least we've got something we can then plug into what comes next or what has survived and we haven't lost all of that curatorial work that we did yeah I mean a lot of times IP lawyers will talk about in any medium now known to her after device right so if I'm to buy something why shouldn't I get a license for any media now known to her after device so I can take this and go someplace I have like a media a personal media certificate and I miss some industry standard and I get to go to another provider with my media certificate and then have that collection available some other format Eric Hi so my question is you mentioned there are some possible solutions to get more revenue to artists such as the percentage of streams goes to the specific artists and I was wondering do you think any of these solutions to get more revenue to musicians would be from the companies themselves or could they be legislative because to me this whole revolution that's happened with streaming was because the music industry basically seemed to have cratered and was brought to its knees and had to sort of redo everything so what would be the incentive now to make those changes great question and again these services depending on the nature of the service run on a mix of compulsory statutory licenses where the rates are set by statute and by an administrative board and market rate negotiations between content owners and the services so it could be a mix of mouth I don't know if people hear that I don't think there's much appetite in congress to create more statutory licenses for content Congress just passed the music modernization and said I think they've done their thing it was unanimous in the senate, unanimous in the house signed a law in October of last year and so to the extent congress is going to do anything the music space has been done I think it's going to be market forces that are going to be driving that but the notion that record labels are somehow going to pay more money to artists I think is completely absurd in fact the litigation docket is rife with artists who are complaining that they weren't paid properly and then you look into the accounting practices of these labels and you say wow that was a complete mischaracterization of these deductions and exclusions and this is a total mischaracterization of the format and revenue streams the labels don't pay they're not going to like to pay nobody likes paying anybody anyway I think one of the things I've loved about certain aspects of the government's involvement in the music industry is like the artist's share that comes from the PROs so when my music work is performed on the radio I get my artists and my writers share directly from ASCAP and when my sound recordings are played on a sound exchange as well as my sound exchange I get my featured artists shared directly if we could mandate something like that somehow or other that would kind of involve an intrusion into the companies I have a contractual dealings and I can't imagine that there would be that would not happen quietly although I think it would be very beneficial for artists when you ask where's the incentive going to come from I agree completely it can't be legislative among other problems that doesn't solve the problem globally but I think it can come from outside of the industry as it's currently understood I mean we're already seeing people who are making millions and millions of dollars as musicians on YouTube and just completely bypassing so I think the answer to what would make the existing labels and publishers change their models is that they will become irrelevant because people won't sign with them because why would they become beholden to these Byzantine interests that are never going to come back to them especially if they can be part of a platform that distributes all of their things that includes a tip jar where people can just be paying them and imagine and people are imagining and writing code for and trying to develop systems for you can also click the license this for use in your film button right there license this for my ad button why is anybody ever going to go to Warner Brothers music group to say can I license that little clip for my ad when there's a big repository of music where you can just click that button and boom you've got your license so I think the forces will come from outside of the industry and the government A great prelude to what I was going to ask which was for the panel to kind of talk about what they see coming forward and what they would like to see around I guess two things so if where music is right now is more about the in-person experience and you know going to shows and the content is cheap but shows are really expensive in ways that we're kind of unimaginable before and then that's even before the secondary market which is on primarily but Ticketmaster which used to be illegal and still is illegal in a lot of context to scalp so that's sort of the first question is what do you see around kind of like how artists make money around touring but then there's this crazy financial system around touring and then the second part is if the first if the experience is about being in person and we see all these people with like their phones up and they're listening to the concert they're streaming it to their friends or they're streaming it to a service where other people are watching and now we see things like AR and VR happening in ways that seem transformative how do you see that shifting things changing nature of life experience it seems like the well I mean I guess I want to say just as a bracketing that when we say that the future of music is in touring we're limiting that to a very particular population of people who have the ability to be mobile which automatically is going to privilege men is going to privilege the young is going to privilege the physically abled is going to privilege single people there's a lot of cultural issues bundled up in that so I I guess I partly I want to I don't want to give up on there being other ways for artists to make money besides hitting the road because that's just a really exclusionary model of music making that doesn't have anything to do with the value of recorded music anyway in terms of the concert going experience I think there's all kinds of all kinds of things play right now I think that we're in a pretty bad moment for live concerts with phones because I do think that people are documenting the experience at the expensive enjoying the experience often or they're enjoying the documenting and I think that for artists on stage that can be extremely alienating because they're not experiencing the audience they're experiencing being filmed so I think some things got to give there somehow and I don't really know what it is I hope that enhancing AR and putting everybody in headsets isn't going to be the answer I mean you see I wouldn't be surprised if there's just some big old backlash to be honest you know where okay the first song is when you take your song and then you know on song two if you still got your thing people are looking at you like you're a jerk I don't know that it's going to go that way or the recording devices will become so they'll be built into what we're wearing anyway I don't think that's that far out I mean one chuckles but it's not that far out to imagine it's a pin on our chest and we don't have to be going like this because this is doing it anyhow it's already a watch half the time right so I think there's massive challenges in that domain but I wouldn't want to put all the hope for the future of music as a profession financially in it yeah there are certainly plenty of artists who don't who don't allow you to record I wonder if VR can be a way of changing the the experience of touring so that you can provide a personal experience to people who are not there probably can it's not very effective right now it's still pretty clunky but I can see that it with technology advancing it could be I'd like to just say something in response to maybe a larger point about the ecosystem in general I wish that they're and you can you can file this under that's never going to happen department but I would love there to be a data share with artists that are touring so that they know like if it's live nation or they know who the fans are fans can opt in so that the artists have the fan data for the people who came and then they can connect socially with those the fans who are willing to pay for them to see them play live and then that actually makes artists grow and their communities grow larger which in the end would trickle up to the benefit of live nation because you have a lot of bands who are benefiting from this and created incredible data and information that the promoters and venues have so if they could be more reciprocity of data sharing with artists who are on the road again there's privacy concerns obviously but if it's an opt in situation that's kind of closely monitored artists could be able to build upon the success they have one gig at a time and could actually maybe even on their own scale be able to branch out and you could have you know success we don't all need to be like Katie Perry right we can have our own success at our own level with our own say you know goals and if we had the data that allows us to leverage what we've done so far there's something that can still serve our goals that would be I think a good way technology could could support artists coming up can I just add that access to data is a million miles from being able to use that data meaningfully and a lot of people feel very overwhelmed by the quantity of data that's available to them and don't have any sense of how to act on it strategically at the same time they're also being asked to manage every aspect of their career that other people used to manage now they're supposed to be expert data scientists as well so it's a it's a big ask you're right but it's a big ask we need to again back to need to have the kinds of intermediaries turning data into information you can use actually yeah some of the services the industry used to provide are still you know very necessary yes you know you can have pro tools and make your music and you can put it out if you talk to a lot of artists they're like you know I'm in this because I'm a really good musician and I want to make music and I spend like five hours a day responding to Facebook posts managing social media and looking at my budgets and this is just you know this is not my value added and so there's definitely room for you know other intermediaries to step up and help with that aspect even in a sort of more artist to fan model and definitely there are many things problematic of live performances the only way you're going to make money both on the you know the user side you can't get there and also I mean some people are just really good songwriters and they can't jump around and they can't change and we need to support them too so yeah and I agree about external forces I mean I do think you know more pressure from the outside you know whether it's a tip jar or micro patronage or band camp or whatever those have a role to play in moving things in a fairer direction we need to wrap up because it is one but if people have questions maybe we could stick around for a few more minutes and answer them please join me in thinking Dave Jennifer and Nancy this is such an honor that I put an email out to three great friends and said hey come talk about Napster for an hour and you all said yes which is great so thank you all and thanks everybody for coming