Entertainment Lawyer of the Year: Music Industry Didn't See Digital Coming, Should've Made a Deal With Napster


listening to 4'33"?
kT LindSAy/Foter

Attorney Lee Phillips, named Entertainment Lawyer of the Year by the Beverly Hills Bar Association, spoke with The Hollywood Reporter about his nearly fifty year career as a music attorney. He told the entertainment industry trade magazine that record companies, in "typical" fashion, didn't see the "digital revolution" coming:

"There are always changes in the record industry," he continues. "Piracy has been around since the cassette, but when labels didn't embrace digital right away, it was too late. I was there at the beginning, representing Real Audio, who hired me to acquire content from the labels, and the negotiations dragged on for almost a year. But music has always been important and will continue to be."

Phillips talked about the music industry's well-publicized early 2000s fight with Napster, the file sharing program that ended up being not an isolated bad actor but the front of a wave of change in the way music and other media are distributed. Phillips told The Hollywood Reporter striking a deal with Napster "might have made more sense" for record labels rather than what they did, campaign to shut it down.

Phillips isn't worried about his business prospects. As artists detach themselves from record labels, demand for his services increase. Phillips also sounds excited about wresting control of copyrights from the record labels, a process called "termination" by which copyright for work reverts to the artist. He's waiting for the first musician that "dares to step forward" to claim ownership of their master records.

Are copyrights for music, though, even necessary in the digital world? Phillips certainly isn't saying so, but does point to developments like corporate sponsorship of artists and artists moving to distribute directly to consumers that might support the case against expansive copyrights.

While from SOPA to CISPA the entertainment industry continues to fight yesterday's battles, Napster and the revolution in distribution that it heralded didn't spell the end of music, as the music industry self-interestedly insisted. A 2011 study, in fact, found that the rise of easy piracy may have in fact increased the quality of music being produced. While that may be somewhat of a subjective conclusion, it was arrived at through fairly objective analysis and calls to question the need for copyright, meant to protect not just creators but the rate of creation, in the first place.

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99 responses to “Entertainment Lawyer of the Year: Music Industry Didn't See Digital Coming, Should've Made a Deal With Napster

  1. In an environment where the up-front capital costs are dropping to irrelevence, rent-seekers like the record labels are also dropping to irrelevence. Their previous role had been to cover the overhead costs of the pressing and distribution. Now they need to fade into the night or find something useful to do.

    1. Speaking of rent-seeking – if you want to spur creation of new content, remove the ability to rest on ones laurels from prior work. limited protections spurred new content simply to keep the income flowing.

      1. Surely you’re not saying that Sir Paul shouldn’t still be making money from “Live and Let Die.”

        1. Nobobdy should be making money from that.

          1. Except Axl Rose

        2. Sir Paul shouldn’t still be making money

          To be sure, I haven’t seen a dime… Sir Akston.

    2. There are one or two record companies I look to as a sort of “curator” – promoting niche acts that they think I will like. But otherwise I agree, the big general companies that publish the vast majority of popular music serve no function at all anymore.

      1. Let me guess. Matador Records and Merge Records?

        1. Nah, Metropolis and A Different Drum.

  2. Adapt or Die. Anything else is just jerking off.

    Next up, the movie industry.

    1. Yep. The wife and I were discussing this last night. Since we cut DirecTV and have only gone Netflix and Amazon Prime, our entertainment tastes have changed. Whereas before, we weren’t into “B” level entertainment, but now I will gladly watch pretty much any film on Netflix and enjoy the experience. Most of those films are low-budget, independent, films. No studio system needed.

      1. The only reason I keep cable is 1) Inertia and 2) sports.

        #2 is really the only reason you need any longer.

        1. 3) An inability to get unlimited high-speed internet.

      2. Most of those films are low-budget, independent, films. No studio system needed.

        Nazi Zombies on the Moon director agrees.

  3. I have to give Ed props for the alt-text. That was pretty clever.

  4. And give up their lucrative buggy whip manufactury? You must be joking!

  5. I wish Democracy would evolve like this. Who needs a representative Congress when all 300 million people can vote (or not vote) daily on every issue?

    1. Mob rule is an even worse form of government than we have now and is a quick path to tyranny.

    2. Holy fuck. Have you seen the progtard horror that is

      1. They’d have us in camps in a week.

        1. But it is for our own good!

    3. Democracy: Two wolves and a sheep voting on what’s for lunch. That’s not really what you want, is it?

  6. I’ve always found it a little amusing that by embracing the CD in the 80s, the musical industry laid the seeds for their (slow) destruction. Back in the 80s, I hated CDs (they gave me one hell of a headache), but I started to embrace the medium once the archive material of obscure punk/new wave groups started coming out.

    An aside: As a record, er, vinyl collector – it certainly is strange to see a renewed interest in such a primitive method of reproducing sound. I wonder how long it will last. Is it just hipster fascination or is there something deeper there?

    1. We lost all our good music because vinyl was so fragile. Having to buy it all over again soured me to the medium.

      1. Vinyl _is_ fragile – having said that, I own some records that I bought in college that I still play with minimal cracks ‘n’ pops. And then there are some of my original 1950s Sinatra and classical albums that play just fine too.

        Of course it helps to have a good turntable with a phono cartridge that is mounted correctly without tons of tracking force.

        And it also helps to have a vacuum record cleaner.

        1. My sister has a signed copy of Rachmaninoff playing Rachmaninoff, on vinyl of course.

          It’s framed on the wall. I’m trying to convince her to play it once, digitize it, and then we can put it back in the frame.

        2. A record vacuum sounds like one of those things only crazy people buy, but the damn things work wonders with old vinyl. Unless I’m crazy…

        3. There were 2 albums that I couldn’t find anywhere on CD, Hurrah: Tell God I’m Here and The Swimming Pool Q’s self-titled release; two of my favorite albums from the 80’s. My vinyl and phono was long gone and the cassettes were unlistenable; the tape’s oxide had completely eroded.

          I finally found really nice rips of them on music blogs, which have since been shut down by the copyright police. These were albums I hadn’t listened to in 20 years. It was glorious when I found them.

          Fuck the copyright police.

          1. That’s one thing about going all digital. It completely kills all secondary markets. Now you can’t find cheap resales or out-of-print stuff. It is easier to share and preserve old, out-of-print items, but as you mentioned, it is technically illegal. Either way I guess you have to know where to look.

            1. I’m good about buying the CD or MP3 if it exists, but these were nowhere, except for some ridiculously expensive Japanese import for Hurrah on eBay.

              If the stuff is out of print and not for sale, you should be able to rip and distribute until Hell freezes over.

          2. cassettes were unlistenable

            My god, I can’t believe how long we put with cassettes. What a horrible medium.

            1. Whoa! Auto-reverse and song skip!

              It was one step above 8-tracks, which I also owned at one point.

      2. CDs are fragile in a different way. But still less likely to sound as good 100 years from now as vinyl.

        1. I’ve had once case of CD rot – this was Johnny Thunders – L.A.M.F – the outer aluminum started to slowly erode, eventually eating in to where the music was stored. Apparently this was an issue with just one UK plant.

          1. That record might be in the public domain so you may have some really cheap pressers manufacturing these things for fly-by-night labels.

            The fragility of CD’s soured me. Even shitty RCA Dynaflex records will play through better than some used CD’s. The biggest problem with CD’s is their portability – it introduces carelessness. I can’t remember the last time I dropped a record, but I used to drop CD’s in the car all the time.

    2. Remember learning the hard way that an album left in bright sunshine would warp.
      Ever pathetically try to play a warped 33?

      1. 78. It’s the Alzheimers.

      2. i bought Inna-gadda-da-vida vinyl at a garage sale prior to having ever heard it. The version I play in my mind is still the warped one, which I gives the standard a run for its money.

        1. * garage sale vinyl was warped.

          1. That does sound special.

    3. My understanding is that audiophiles prefer vinyl to any other medium. Perhaps the renewed fascination/demand is more, or at least part, a function of the people who grew up in the 70’s and 80’s now have more dispoasable income than they did back then are circling back to it? Or maybe a part of it is the generation that grew up without it are beginning to have disposable income and now look for it?

      It makes me think my modest collection might be worth something, but then I look at my taste in music in the 80’s and figure, no, probably not…

      1. Audiophiles have been repeatedly shown to “prefer” things that make no measurable difference to sound quality when subjected to a blind test situation.

        1. I remember being over at my philosophy prof’s house. He puts a CD on… plays a track. And then sprays the same CD with a chemical. Plays the same track again, a big smile on his face. “Now that sounds better” he says.

          I didn’t hear a damn difference but just smiled. (He was a nice old guy).

          1. I didn’t hear a damn difference

            So he didn’t offer you any of the lsd?

          2. Those 1’s and 0’s really pop now!

      2. …but then I look at my taste in music in the 80’s and figure, no, probably not…

        I’ll be happy to buy that Necros IQ32 7″, and that Naked Raygun Vanilla Blue 7″.

        1. I got dibs on Charlie Pickett and the Eggs:Live at the Button.

          1. I don’t think I have those…but I do have Scorpions, Def Leppard, Judas Priest…

        2. I saw Naked Raygun a year or so ago in Chicago. Awesome show. Which reminds me, I think they are playing here again this summer…

          *checks internetz*

          1. I saw Naked Raygun and Big Black numerous times back in the mid-80’s. Raygun is among my favorites, and the songs have a nice libertarian streak running through them.

      3. Once in awhile I still hit the record stores and even see *gulp* young women and teenagers shopping for vinyl. I had a conversation with the store owner, who once told me that day he had sold zero CDs and is only staying afloat because of vinyl sales.

        Back when I was a poor college kid, I only had a collection of some 150 records. Now it’s over 1000 – but slowing. There is, after all, only a small sliver of the music that had been made that I like.

        My initial (early 1980s) interest in records was because it was easy to make a cassette copy – a medium that I had little trust in – for the car or for friends.

        1. I’m glad my ear is unsophisticated enough, that I’m perfectly happy with lossy music.

          I’m still blown away that, instead of the 100 cassette Case Logic bag I lugged around in college (and strangely was never stolen out of my car) can now fit 10X over on a 16 GB thumb drive that’s the size of my thumbnail.

          This is truly a golden age of portable music.

          1. Once I figured out how to use ReplayGain, my unsophisticated ear was happy with lossy digital collections (my one gripe was constantly having to adjust the volume)

          2. I have pictures of me and my roommate’s living room circa 1998 where it’s just wall-to-wall media: CD’s, cassettes, videotapes, DVD’s, books. I just laugh when I see that now.

            1. Those were the days.

              I’ll still cop to a fairly decent DVD/Blu-Ray collection. I haven’t looked at my CDs in years and I’m watching the DVDs less and less.

      4. I think that it’s about owning something “collectible” or interesting if you’re going to even bother with a physical medium for audio recording. I’ve noticed a lot of smaller bands I see only selling vinyl with a code for a digital download.

        1. I just find it pretentious. All I want is the music, people. I am not into “collecting” things.

          1. I do miss liner notes and lyrics on the back of the album cover or on the record sleeve.

            1. There were a few labels, like 4AD, that had outstanding artwork on the albums.

    4. Is it just hipster fascination


    5. Its hipster fascination.

      While there may be something to analog reproduction (*I* don’t think there is – any benefits are beyond human ability to detect), records don’t cut it. Tons of static just from the medium itself (along with environmental disturbances).

      Short of creating some sort of super-duper strong recording medium, encasing it and the head in a shockproof vacuum chamber (something like and analog hard-drive) you’re going *match* digital repro at best.

      1. Then you’ve never heard a VPI Aries turntable like mine. It easily trounces my SACD player – listening through full-range studio monitor speakers.

        1. but having said that, it’s not a medium that I would recommend to anyone except the hardcore collector or uber-audio geek.

        2. Yes, yes. And I’ll accept your anecdotal evidence as readily as I accept the reports of the efficacy of a eucalyptus and penicillin shot for curing colds (something my Mexican friends swear by – with the shot it takes around 6 days to get over it, without it takes nearly a half-dozen!)

          1. yep – exactly the same. Someone who builds and measure their own gear, listening to a pair of professional speakers used for mixdowns is just making shit up.

            1. It’s been repeatedly demonstrated that in a double blind test, people can’t distinguish digital from analog, and that’s not gonna change no matter how much you wasted on your fancy placebo speakers.

              1. actually one should be able to hear the differences – based on the inadequacies of analog and not to mention the higher noise floor.

                And if you don’t know anything about the requirements of real studio monitors, then you shouldn’t delve into an area that you know nothing about. Speakers, by their very nature, are the easiest to tell the differences between. No matter what the cost -most of them grossly distort -and can’t even pass a square wave – some just do it better than others.

                1. Yes better speakers make better sound, up to a point. But a lot of people get obsessed far beyond that point, especially since there’s a ceiling in that you’re ultimately limited by the quality of the microphone that was used on the other end of the recording chain.

                2. Part of the reason people can’t tell the difference is because most labels don’t take advantage of the dynamic range of CD/digital – they just compress to the point of absurdity.

    6. Is it just hipster fascination or is there something deeper there?


      Like Obama, to be clear, a large portion of it is hipster fascination.

      However, there is merit to the argument that the vinyl gives a warmer sound. Plus, there is actually something comforting about the hisses, pops and crackles of vinyl playback. Please take note of how much music that does sampling ACTUALLY ADDS IN THE HISSES AND POPS OF THE VINYL PLAYBACK.

      But, if you paid any attention to the history of audio, the push was ALWAYS to get AWAY from the hisses, pops and other extraneous noises that older, analog and more primitive systems produced.

      Once we finally got to a place where the sound could be faithfully reproduced, with crystal clarity, nostalgia demanded the flaws of analog audio to be put back.

      1. An old roommate of mine built his own Heathkit amp for his system, back in the 80’s. He then found 2 boxes in an old office building cleanout: a pop and click eliminator and shit, I can’t recall the other one now. It was pretty amazing the depths you had to go to get clean sound.

        He had an anti-static gun he would use after cleaning the vinyl and a MASSIVE record collection, which was great for parties. He also had an old Sony reel-to-reel he would play occasionally.

  7. He’s waiting for the first musician that “dares to step forward” to claim ownership of their master records.

    Zappa recovered many of his masters, though I have no idea if he just made a phone call and waited for a delivery, or had a protracted legal battle to get them.

  8. Who’s the chick in the pic? Them’s some nice stems.

    1. Why don’t you take a better look, sarc.

      1. Thank you for giving us a ‘sign up for Flickr’ link.

        1. I don’t have a Flickr account, and when I click the link I see a larger version of green dress girl.

        2. Poop. Here is a good link. It’s a self portrait.

          1. I don’t see an Adam’s Apple. What are you getting at?

  9. IMO the change will mean the end of over-priced pop music.

    No longer will you be able to hype up some mediocre singer with a decent set of tits and sell records all over the world. People will just steal that shit.

    No more megastars like Madonna, Prince, Metallica, etc.

    Instead I think you’ll see the rise of large numbers of decently popular bands/singers with geographically dispersed followings. Some dude who’s really popular in Southern California who also has an insanely devoted following in Tanzania – a situation that is pretty damn near impossible to achieve under the label model of distribution.

    1. No more megastars

      In the near future, the entire world economy will depend on Dethklok.

      1. OK, so *one* super-mega-star and a huge number of 2nd tier operators.

    2. I never would have heard of Tyr, Amorphis or Skyclad if not for Pandora,
      I wonder if it has been a boon to small labels or at last realtively unknown bands outside of their core followings.

    3. Some dude who’s really popular in Southern California who also has an insanely devoted following in Tanzania

      Sixto Rodriguez for the win.

  10. In an age where reproduction of media is effortless and cost-free, fighting against piracy is a fool’s errand and utterly losing battle. I don’t even care if you’re for IP; it doesn’t matter. Piracy on a huge scale is impossible to stop. Even absolutely draconian measures would barely make a dent.

    I’m against IP, but that’s irrelevant. You can’t enforce it.

    1. That was the argument I always made: piracy is a market signal that your shit is too costly. Deal with it by being smart, not stupid. The recording industry chose stupid for far too long.

      I refused to buy iTunes crippled music and still went to the used CD store. The day Amazon started selling DRM-free downloads was the last day I went to the used CD place.

    2. The only thing you can do is redefine what IP really means, and then hopefully, “piracy” doesn’t matter, because it won’t be seen as piracy any more.

  11. Lord Humungus: I had a tube go weird (heater shorted, I think. Drew huge amounts of current and popped the fuse). I replaced the 6550s with KT88s. Been pretty happy with them so far. They’re not really all the way broken in yet.

    I still probably need to dig into the amp and do stuff like wire in an on/off switch, and probably replace some capacitors. But it’s going reasonably nice.

    1. What KT88s? The EH stuff is pretty rugged. I’ve been playing with a pair of solid-plate ’88s made by Shuguang. So far so good.

      What amplifier? guitar or hi-fi?

      1. Electro Harmonix, yea. It’s a Jolida 502a. I picked it up used about a year ago, has some modifications (balance is disconnected, for instance).

        1. Tubeheads!

          1. Actually listening to a desktop tube headphone amplifier right now, as well.

  12. On a related note I wonder if film rightsholders/Hollywood would have made out financially better if they went with the backwards-compatible HD-DVD standard rather than the Blu-ray?

  13. I was there at the beginning, representing Real Audio

    This guy is worse than Hitler. Real Player was a proprietary, borderline adware piece-of-shit.

    1. We always called it Real Virus. It would just take over your whole fucking system.

      1. Yeah, as the family’s tech-savvy kid, that was always the first thing I’d check.

        “Oh hey, Aunt J. Oh, you’re PC’s acting up? Uninstall Real Player, restart the machine, and call me back if you’re still having a problem.”

        60% of the time it worked every time.

        1. So true. And the other 40% was Adobe Acrobat/Reader.

  14. You can’t enforce it

    When the hell has that ever stopped ’em?

  15. Is that Lobster Girl?

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