The Heretic’s Comment: The following post is my contribution to a lively discussion taking place in the LinkedIn group Music Publishing and Licensing. I am posting here on the Heretic because it was too long to post within LinkedIn. It’s a long read, but let me know your thoughts:

Hey Guys this truly has turned into an excellent discussion and I greatly appreciate all the well articulated positions and passions shared. I know that for the moment SOPA is on hold, but there is no doubt that this fight is not over. With that being said, I want to come back to the point I was attempting to make in my original Blog post:  “SOPA is a vehicle that has been created by a consortium of major entertainment conglomerates and pushed by lobbyist paid by them as a legal method to exert control over the flow of content over the internet which has been couched under the propaganda of fighting piracy.” (Wordy I know, but I could not think of a shorter way to say it).  As such, my essential argument stated again is that SOPA was not designed to protect and/or advocate the rights of small and independent content holders like you and I.

Now in making known my thoughts on this issue, many say I sound like a conspiracy theorist, but I don’t think so.  The executives employed by the major entertainment conglomerates don’t make significant policy directives by accident. I deal with them daily, and while many of them are great people individually, I never forget the fact that these executives are paid brain trusts (many of whom are highly paid) who are employed to protect and pursue both the Conglomerates interest as well as its survival.

More to the point, I look at SOPA (as presently drafted) much like I look at how the Conglomerates were able to reconfigure the playing field concerning Broadcast Ownership rules by relaxing both the total number of radio stations that could be owned by a single individual or company as well as relaxing the number of radio stations that could be owned by a single individual or company within a particular market.   Let’s take a brief look at the history concerning this issue before moving forward.

In 1975, the FCC passed Newspaper-broadcast cross-ownership rules which were designed to prevent a single corporate entity from becoming too powerful a single voice within a community and thus the rule was created to maximize diversity under “the conditions dictated by the marketplace.” Also keep in mind (for those of you who are unfamiliar with the role of the FCC)  that the chief aim and purpose of the FCC is not to provide a platform for profit maximization for Conglomerates, but instead the FFC is charged with promoting the public interest and thus the diversity of voices through protecting the public airways.

Unfortunately, in my opinion, the heart of the 1975 FCC Media Ownership Regulation has been greatly eroded through subsequent FCC rulings and legislation – – most especially with the proposed 2003 change in Media Ownership rules passed by the FCC in a close 3 to 2 vote (republicans over democrats) under then FCC Chairman Michael Powell. Now I will be the first to admit that issues revolving around the Media Ownership rules remain in a state of flux and such issues are well beyond the scope of this discussion, but suffice it to say that with the current legislation in place a single company can now legally own hundreds and hundreds of AM/FM Radio Stations. For example, Clear Channel Communications currently owns 850 radio stations.

Now let’s next look at how the diversity of voices was fostered by the 1975 regulations particularly with regard to radio music programming and then how the diversity of voices was destroyed as the protections provided by the 1975 regulations were eroded away.  One note before I move forward: now obviously, there are differences between preventing the piracy of original content which is the issue SOPA is attempting to address versus the FCC’s effort to protect the right to hear a diversity of voices through our public airways, but I am attempting to make a point….so please hear me out. Okay, with that out of the way, let’s keep moving forward.

Under the 1975 Act, the variety of music programming available for audio consumption over the various radio stations was excellent. Each individual town or city had a group of musicians and songwriters that had developed a distinct musical sound for that particular area which could be easily heard over the radio. Taking a road trip doing this time period would easily bear my argument out. For example, let’s say your trip originated in New York City. As you get in your car to leave the city and turn your radio dial, the various radio stations you scan would be playing a variety of local music unique to the New York City metropolitan area. You could then travel down to Miami and hear distinctive music playing on Miami based radio that you did not hear while driving out of New York.  And then you could drive on to Nashville and Memphis each having distinctive music playing on their respective radio stations. Then travel to Atlanta, New Orleans , Houston, Austin, Santa Fe, Phoenix, Los Angeles, Oakland, Portland and finally ending your road trip in Seattle, with each town or city having radio programming that was unique to that area and where you would discover music that you had never heard in any of the other places you had visited.

Why was the above true?  It was true because you had local radio stations that were closely tied to the local communities they serviced. In other words “Local” radio really meant “local radio.” Additionally, “these” local radio stations (in many cases) were intimately tied and bonded to the musical community and vibe of their particular location and supported the local music and nurtured it through spinning the music on their play lists. Thus, in my opinion, the FCC 1975 standards created a near perfect synergy by fostering the ability of the local radio stations to support the local music community…each needed the other to survive and grow market exposure.  Of course in the midst of this time period, Music Conglomerates were always lurking in the background attempting to usurp control over programming through payola, but in many cases the system worked just as I described.

Now, let’s look at what was happened to local radio and radio programming as a result of the Conglomerates successful efforts to relax media ownership rules.

First, legislation was implemented which choked off local independent radio stations ability to find space on the FM dial, which in turn resulted in long established independent stations quickly and suddenly  dying out, not only because dial space had become more difficult to secure, but more importantly because their advertising bases were raided and pillaged by the Conglomerates’ aggressive pricing models…so almost overnight the local radio stations cashflow positions disappeared which directly affected their ability to fight back against the hostile takeover of the airwaves.

Secondly, the music programming playlists for the Conglomerate controlled Radio Stations quickly became homogenized and uniform and (with the exception of college radio and pirate radio stations) radio listeners were forced to hear the exact same play list of songs rotating over and over throughout the day and night no matter what area of the country they lived in. The same set of songs were  driven to achieved heavy rotations, which in turn generated millions and millions of dollars in performance royalty fees for the PROS and Conglomerate controlled Publishing Companies in addition to positioning the Conglomerate controlled Major Record Labels to sell millions and millions of Albums, CDs and Cassettes.

Unfortunately, indie Publishers, Songwriters and Composers on the one hand and indie artists, bands, musical groups and labels on the other hand, had very little chance of participating in this cash bonanza described above other than essentially witnessing their content being used by the Entertainment Industrial Complex to generate massive cashflow with only a small select group of superstar artists making any significant money.

In essence, the eventual erosion of the protection to free speech (diversity of voices) afforded to us by the 1975 FCC Act, has allowed the Conglomerates to have a virtual strangle hold over music programming as well as gatekeeper on what music is played over the PUBLIC AIRWAVES and most importantly positioned Conglomerates to deny access to the PUBLIC AIRWAVES to any artist/musical group/band/songwriter/composer who refused to sign exclusive contracts with the Entertainment Industrial complex  (which essentially forced the indie artist to give up substantially all of his/her/their rights in the music).

Now looking at SOPA, as Lance correctly pointing out in a earlier comment, the U.S. Government already has federal laws in place to deal with piracy (and I do agree that these laws can be updated to some degree), but the real issue here is that the existing laws don’t provide the leverage the Conglomerates need in order to control the flow of commercial content over the internet which in my opinion is their true goal. When we look at how SOPA is to operate (as currently drafted), we see legislation that provides a near perfect fit for allowing Conglomerates to LEGALLY control commercial content over the internet.  Just think about it, if there is a measure that allows the Conglomerates to petition the federal government through the I.C.E. to block a supposedly offending website’s DSN from being visible, then access is now denied. A communication platform has been removed from the diversity of voices available to the public to hear and see.

If citizens sharing content become intimidated to do so because of fear of criminal prosecution and fines, the spread of ideas becomes much more difficult, because now permission must first be obtained from the content owner  with the added responsibility of having to explain what you plan to do with their content before posting.  The same is true for websites which allow users to post content on their individual profile pages. It will be much more difficult for sites like YouTube and Facebook to continue this practice because now the pressure is being placed on them to decide who is authorized to post content versus who is not authorized to post the content. So when you think about it…who offers sites such as YouTube and Facebook the best option to avoid getting caught in the quagmire of SOPA? The Conglomerates, that’s who.

Sites like YouTube and Facebook will ultimately decide to limit themselves to only allowing their platforms to be used to distribute (share) commercial content that has been pre-approved by the Conglomerates. With the passage of a law like SOPA, the Conglomerates (who in reality contractually control much of the commercial content in existence) have a way to force their content down everyone’s throat and thereby solidify their long desired goal of effectively maximizing web-based revenues and residuals through the control of what content can be ultimately shared through social media platforms.

To me that is what SOPA represents. I see it as clearly as I see the back of my hands while typing this post.  In most cases, especially when we deal with America, keep in mind that there is little to no separation between federal governmental  agencies and the Conglomerates who pay lobbyist millions and millions to get Congress to pass laws which dictate how that Agency is allowed to exercise its authority. Also keep in mind, that there is a revolving door between ex-governmental officials who become high paid executives with the very Corporations that they were to police as well as ex-corporate executives becoming high ranking government officials working for the very agency that use to regulate his or her company. It happens all the time in America. Just google Michael Powell’s name and see who he is currently employed by.  So the actual implementation of SOPA will be closely controlled and dictated by the Conglomerates who have the bank rolls to get the law to work in the way they need it to work, even if it comes at the expense of our free speech rights (diversity of voices).

Look, as I indicated in a earlier comment, the Music Industry has already tried to criminalize socialization of content when it used the RIAA and federal/state laws to prosecute individuals for P2P file sharing some years ago. Despite all the headlines, the RIAA’s efforts  ultimately did not stop file sharing and mainly acted to generate a huge amount of ill will by the general public toward all of us connected to the music industry.

That being said, I believe that music has value (great value) and I believe that we (in the indie music community) do ourselves a great disservice when we give our music away for free. When we give our music away for free, then we establish the dollar value of our music in the public’s eye as ZERO.  There are all sorts of creative things that can be done to bring value to music, short of surrendering and saying I will just give it away, because nobody wants to pay for it. Just think about it, despite all the setbacks and missteps the music industry has experienced over the last several years, commercial music is still generating billions and billions of dollars of sales each and every year. For those of us trying to eat and pay bills from our music, this is not a hobby it is a business.

But it truly saddens me to think that most of the artists/musical groups/bands/songwriters/composers who are so adamantly in support of the implementation of SOPA as a way to protect their musical content from being pirated, will in the wink of an eye,  jump at the opportunity to sign a recording agreement with a major record label and thereby sign over all rights and title to their music with the understanding that the Conglomerate is only required to pay them pennies on the dollars if anything at all. In other words, if you are a music content creator, stop giving up your ownership rights to these Conglomerates who are then positioned to use your content through a law like SOPA as a weapon of mass destruction against free speech (the diversity of voices).

Notwithstanding the above, I must say that social media sites such as facebook, youtube, twitter, google as well as others engage in a number of practices which infuriate me, but despite the imperfect nature of the sites, there is no question that each provides a  powerful platform for new ideas to spread many of which are outside the control of the Federal and State Governments as well as the Entertainment Industrial Complex.

Finally, Small Independent Content Owners must accept the responsibility to connect their content to a Fanbase. It is difficult to do…I know, but this is truly becoming the best way to position yourself to be paid from your content.  Individuals who feel connected to your content because they feel connected to you will financially support your content. I see this phenomenal happening everyday with clients of my entertainment practice who are making money with their commercial projects. Now, if a law like SOPA is passed, if forces the very individuals (our Fans) who would be inclined to spread our videos and content so that others can discover us will now be possibly denied the opportunity to do so because 1) they don’t want to be personally exposed to prosecution and  2) the social media platforms that once allowed them to  share independent music  (diversity of voices) will be limited because of all the restrictions in place for posting commercial content.

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