Wagner James Au writes about computer games and other media for Salon.com and Wired. He's the co-founder of hip4sf.org, (High-tech/Internet Professionals for San Francisco), a support site for preserving San Francisco's arts, cultural, and music scene.

Napster and the Indie Musician

As Judge Patel thundered down her injunction against Napster last month, grinding over each specious argument from sophist-for-hire David Boies like so many rubber ducks in the path of her M-1 tank, Boies' equally mercenary counterparts on the RIAA's retainer must have breathed a venom-scented sigh of relief. Napster was dead, and would no longer threaten their ongoing scheme to drive every ambitious musician into utter poverty.

For about a day.

Patel's ruling was stayed, and Napster crawled out of its grave, blood fluming in every direction from its slashed throat, but still very much alive. So in this respite before the ruling to decide whether the original injunction will stick-- in which Napster executives surely hope they can build up a large enough user database to jujitsu the RIAA's ass-- the future of music online remains hugely unsettled.

For a while there the old-school algorithm of music distribution looked like it might prevail after all:

1. Give artist small advance.
2. Spend advance on production of CD.
3. Under-promote band and CD.
4. Charge production/promotion costs to artist, against future earnings.
5. Artist has no future earnings: tough shit.
6. Find new artist.
7. Goto step 1.

"One thing that I don't like is the general slant that is coming from the recent prosecutions by the major labels, which seems to be 'Get out of the way, Internet audio is our exclusive domain,'" complains Tardon Feathered, the founder and owner of Toadophile Records, an established San Francisco indie label. "While in general the RIAA is defending the rights of all copyright holders, the discussions and agreements are all being carried out by and for the major label interests."

While Napster lawyers have argued that their system represents a boon to indie artists, the indies are actually ambivalent about peer-to-peer file swapping. "I have no doubt that file trading is copyright piracy but have no idea whether it represents a problem, at least at the moment," Hardy Fox. Fox is the longtime manager and spokesman for legendary alternative rock band, The Residents. The Pynchonian supergroup are in a unique position to speak on this. They are musicians who have managed to last for nearly three decades, even without a major label deal and very little mainstream awareness. So I ask him if the 'Dents have noticed the rise of Napster affecting their CD sales, one way or another.

"I haven't the slightest idea if there is an impact," Fox tells me. "I don't know if there are any Residents songs available on-line for trade anyway?"

I go to Angry Coffee's Percolator, select an Open Nap server, enter in "The Residents," and within seconds, ten Residents tracks pop up on several user databases. But when I show Fox the list, he doesn't seem very worried: "I just know it isn't going away. Maybe we just put everyone on the honor system and allow people to voluntarily drop their virtual pennies into the Residents piggy bank if they want to encourage the music."

With their freaky, brainy, tech-friendly music, they would seem a logical choice for Net-savvy song traders. But Fox reviews all the band's fan email, and to the theory that Napster might help bring them new online listeners, he says, "I have never heard anyone mention Napster, or discovering The Residents via the Internet in any form."

ENTER GNUTELLA?

While Napster's days as the standard swapping format (at least in its present, copyright-violating form) are numbered, many argue that free, decentralized -- and most important, injunction-proof -- programs like Gnutella will eventually supplant it. Tardon is skeptical: "95% of all users will go through a well-defined easy channel to get what they want. There will always be 5% of the users who will jump through the hoops to get the pirated stuff. Gnutella will be there for them." A program without a simple interface but rife with broken server links and bugs will not likely appeal the vast majority of online users, roughly 40% of whom are on AOL, the epitome of simple channels.

What's more, while the lack of centralized servers make Gnutella sue-proof, it also means there's no central infrastructure to prevent sabotage. Tardon has his own hypothetical there: "I've been imagining that the major labels will just have someone write a computer virus that will search out MP3s via Gnutella and start erasing those files. At that point something like Gnutella is dead meat. No one would want to be 'on the network' if their hard drives are going to be slaughtered. The anarchists are always the easiest to destroy because they aren't centrally organized."

Would the labels ever really get that hardball? "That's just wild speculation," Tardon acknowledges. "But it's an easy solution to the whole messy Gnutella thing. While it would be ugly, it is not inconceivable."

All that being said, Toadophile's CEO doesn't object so much to Gnutella. Unlike Napster, there's no corporation in the background, building up a user database hoping to turn a profit on it. "As long as no money is being made off of us and we're not out of the loop," Tardon says, "We're not going to be crying. But I'll be damned if you're going to start making any money off of us without compensating us."

PLAYING FOR DIMES IN THE INTERNET ECONOMY

There's a pro-Napster argument that Internet song-swapping simply means musicians will just make their money off live performances and T-shirt sales. (And many musicians openly scoff at this reasoning, since overhead and travel expenses mean that most bands barely break even on tour.) In San Francisco, this argument seems even more bitterly ironic, since live performance venues and practice spaces are disappearing daily, a trend largely propelled by... the Internet economy.

Nitronic, co-founder of San Francisco-based band and Angry Coffee Artist, Land of Thin Dimes has been struggling to carve out a place in the local music scene for over four years. The recent trouble is that not only is the live music scene fast eroding, but also the ability to find a place to play is being squeezed by Internet-juiced rents forcing clubs and practice spaces to leave the city. Dimes' practice space in the South Of Market area (or SOMA) faces impending eviction -- in all likelihood, to be supplanted by a high-tech/Internet business. Many SOMA clubs where Dimes might perform are in danger of losing their cabaret licenses if the city bows to complaints from high-tech employees living in SOMA lofts, lofts that were formerly vacant-at-night light-industrial spaces.

THE HIGH FIDELITY EFFECT

Another pro-Napster argument suggests that song trading actually encourages CD sales, and its advocates will point to the continually rising sales figures. But if general sales are bouyed, Tardon thinks indie labels like his haven't been rising with that tide. "The last year has been extraordinarily hard to sell CD's," he says. "On one hand the music biz is making more money than ever, but it's a select few who are doing so... almost all of it is major label stuff. On the downside, indie distribution is the main area that is currently suffering hard. Distributors are dropping like flies, so are labels. The college student types who use Napster are definitely not using the current system for discovering new bands."

You could call it the death of the High Fidelity effect. "Clearly CD sales are down by campuses," Tardon explains. "And the acts that used to do best by campuses were the indie acts, not the top 40. You'd go to the store, hang out, and listen to new CD's. So my personal conclusion is definitely that unless you've accepted the 'Napster paradigm' and put your stuff out there for the students to hear, then you've lost exposure. It's not that Napster itself is responsible for the indie labels plight, but that Napster so successfully replaced hanging out at the record store."

WHAT NOW?

So while online music distribution is inevitable, this small sample of indie musicians doesn't have much hope that they'll benefit from it. And while they don't qualms over song trading per se (as long as no one's making money off it), it's difficult for them to see how they'll have an active place in that realm. In fact, Tardon Feathered expects all this to be one more avenue the majors will co-opt, when the time is right.

"Take the 'lo fi' indie revolution that Nirvana ushered in," says Tardon. "Optimists started predicting the demise of the major label system, as ADATs and accessible CD replication all of a sudden made any recording studio a label, if they wanted to be, and there was a point when indie sales were nearly 20% of the total sales (I think around '93). However, the celebration was, as usual, too early. The majors then just went and bought the successful labels (sub pop, Matador) and pulled the rug out from under the rest of the indies. I feel very confident that the majors will just sit back and let the speculators try to make something fly on the Net and then step in and buy them when the time is right."

For the faceless mystery group that Fox speaks for, they ultimately couldn't care less: "I pretty much feel that it is mostly bullshit battling bullshit on either side. Really alternative artists have nothing to lose because the public is not interested in them anyway." Even if Napster ends up losing decisively, and freeware like Gnutella is successfully beaten underground, and the majority of listeners are eventually, finally, forced to pay for their online music, Fox seems to think it won't benefit truly indy musicians.

"The trade interest is almost all in big money acts, and they are the ones who will lose sales, so they should care. But I don't care if they care, and I don't care if teenagers have to buy Britney Spears singles instead of downloading 'em. Serves the big labels, the big artists, and the big traders right. You still get what you pay for."