[Update (4/2): Due to a response from Choruss, I've cited sources for any facts, and I've also added a quote from Griffin from the Digital Music Forum East (paragraph 4), information on the "covenant not to sue" (paragraphs 6 and 7), and altered the final paragraph in order to emphasize the opinionated nature of the aritcle.]
A new non-profit arm of Warner Music Group is kindling what will be a major debate with their new ideas for digital music. This isn't exactly the kind of positive, innovative stir that Radiohead caused in late 2007 with their pay-what-you-want release of In Rainbows either. Named Choruss, the group is hoping to convince ISPs and universities to start charging royalties fees to all internet users on their network (Wired). The idea behind this fee is the group's supposition that nearly all internet users access music illegally in one form or another; accordingly, it would aim to ensure artists, labels, and copyright holders are compensated for these downloads. This fee would be compulsory for all users with an ISP or at a university that has opted in to the program, like a tax, regardless of the number of downloads for any given user (Billboard). However, Choruss president Jim Griffin claims it's the next step in the music industry, citing that police, courts, or technology won't be ending piracy, but a new method of collecting royalties that simply makes illegal downloading legal (Griffin's Speech at Digital Music Forum East).
The plan, as it currently stands, will allow anyone on an ISP or at a university to continue to download from any host client they choose, be it LimeWire, BitTorrent, or blog, without fear of being prosecuted (Wired). Many are calling this plan a "Get Out of Jail Free" card. But this really sounds like both a reason to stop buying music and a way to take money from the hands of the smaller bands, labels, and record stores and throw it in the pockets of the major labels. Given the option of purchasing an album at a store or downloading the album for free, users will inevitably choose the free route, especially when he or she is already being forced to pay a monthly fee for the service. This will facilitate a great shift in the way music is consumed. Record stores will start feeling the squeeze. Smaller artists will get burned and find their music, once again, in obscurity, overshadowed by easy access to the libraries of U2, Madonna, and Shania Twain.
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"Griffin seems to believe that most of the world will be on his side, assuming that the allure of free downloads will trump their desire to know where their money is going."
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Griffin recently took part in Digital Music Forum East in New York and spoke about the Choruss approach (you can see excerpts from his speech here). In his address, he strikes back at critics of the program. He criticizes a Billboard columnist saying that their issues with Choruss are the result of a creative imagination. Griffin seems to believe that most of the world will be on his side, assuming that the allure of free downloads will trump their desire to know where their money is going. The resounding response from music lovers? There isn't one. Some are citing the many flaws in the system as a reason why this can't work, while others see the program as that Get Out of Jail Free pass that gives them permission to download whatever they would like (Tech Dirt / Explosive World).
The major issue with this plan, outside of the generally ridiculous premise that all internet users should pay for the losses of artists and labels, is that Choruss claims to be collecting royalties. But for whom? Who would get this money? Surely not indie bands or classical ensembles who are having their music stolen as well. I'd be tempted to say that companies like Warner Music Group will be the big winners with this deal. It would be interesting to hear exactly how they plan to disperse royalties, but Choruss has remained mute on the subject (Billboard). Thus far, Choruss has only announced a sort of monitoring software that will track what is downloaded on networks participating in the program so that royalties may be distributed accordingly. In his speech at Digital Music Forum East, Griffin said, “Choruss will work with, and is discussing the application of, an extensive array of digital music data technologies, and we are open to evaluating all approaches.”
But let's be serious. They can't monitor illegal downloading now, so there is no reason to believe that Choruss is going to have an accurate idea of what users are downloading. Without any accuracy in the system, artists are then leaving the tracking of potential royalty payments to the labels, who, let's face it, are far from being concerned about the artists when it comes to cash. Furthermore, the plan is essentially blackmail for nothing. In no way does the agreement obligate the record labels to make the music available or to provide quality DRM-free copies of music (Tech Dirt / IP Watch). "If you can find it, you can download it" appears to be the mantra.
How does this affect other labels outside of the Big 4 (three of which have signed on to the deal)? The major labels can't sell the rights to albums from say Sub Pop or Jagjaguwar. So, if I download the new Bon Iver album, I paid my money to Warner Music Group, and they seem to be under no direct obligation to make sure some of that royalty money gets to Jagjaguwar unless that label signs up as well, since they are legally not selling the license but the promise not to sue (IP Watch / Tech Dirt). They are selling permission to download music that they do not own, promising not to sue you for downloading their member labels' music. This promise does not actually grant anyone the legal right to download music; it's called a covenant not to sue, and it is unlikely that any recording artist has a clause in their contract that grants them access to these funds (IP Watch).
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"In no way does the agreement obligate the record labels to make the music available or to provide quality DRM-free copies of music. "
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The proposed plan for universities is relatively inexpensive. They suggest that it will be in the $5/month or less range (Wired / PC Mag). But if all the labels don't sign on, what's to stop other labels from forming their own alliances of this nature and again raising the price on subscribers? But it appears that there is the possibility for other labels to form similar coalitions that would create the covenent not to sue that Choruss is promising for a different group of record labels, whihc may result in universities and ISPs being forced into making the deal with multiple groups like Choruss. Realistically, it's a nearly unnoticeable figure in the skyrocketing tuition at most universities. But an extra $5 a month on your home internet bill is another story. (It has not announced any of the proposals to ISPs at this time.)
While Griffin mocked critics of the program, he didn't answer the most fundamental question concerning it: Why should someone who does not download music be forced to subsidize those who do? My parents, and their 56K modem, wouldn't think a whole lot of Griffin's plan. And I pay for my music. If I wanted a subscription service, I'd get one. In fact, I have one. And I know where the money is going when I purchase the new Tim Hecker album through my service. I know that I am getting a quality DRM-free copy of the album. I know that if I accidentally delete the album, I can get the same quality copy again without any issues.
If nothing else, it seems that anyone considering the opt-in system proposed ought to find the legal issues involved hazy at best. Choruss seems to have little interest in publicly divulging the details of the program at this time. Several schools, which have not yet been named, have already opted in to the voluntary program for the 2009-10 school year, when Choruss will begin this service (Billboard). While some universities seem to be sold on this concept and many users will surely appreciate the unfettered access to what appears to be an entire world of music, I remain unconvinced and fear where Choruss may be leading us.
