Erik Davis on watermarked promotional CDs
Before my pal Erik Davis, who sometimes writes about music, left for Burning Man, he dropped off a pile of stuff to a thrift store. One of the items he purged was an advance promotional CD of Beirut's The Flying Club Cup, due out next month. Apparently, some anonymous person then acquired the CD and made it available on a P2P file-sharing network. Thing is, the CD was digitally "watermarked," meaning that the uploaded tunes were identifiable as having come from Davis's review copy. When Erik returned from Burning Man, his answering machine was steaming with angry messages from Ben Goldberg, proprietor of Beirut's record label. Erik has written up his experience in a thoughtful essay titled "My Data Crime: The Ticking Time Bomb of the Watermarked Advance CD." From the piece:
After giving me less than 24 hours to respond to his initial accusation—during which time I was rambling around the Black Rock desert in a fire truck with a flame thrower on the roof—the label owner went on the warpath. He sent out emails to all his publicist contacts and indy label buddies about my evil ways, and was in addition stirring up as much journalistic interest as possible, giving The Flying Club Cup a nice dose of early publicity while also being able to tar and feather a suddenly non-anonymous practitioner of the file-sharing arts.Link
I felt pretty shitty about all this. Last year I wrote extensively about Joanna Newsom’s Ys, which was famously leaked from a Pitchfork server, and I know the pain such leaks causes to artists and smaller labels alike. That said, I also know its not necessarily the worse thing in the life of a record, and I was pissed that Goldberg took to the wires before talking to me and trying to figure out why a 40-year-old guy who writes for righteous publications like Arthur would do something to fuck over a righteous independent label.
I called up a handful of my publicist friends, some of whom actually seemed to believe me, and eventually talked to Goldberg. I apologized, he explained his feelings, we bonded over our shared love of the Dead C. Hatchets were buried, and though I suspect my flow of advances might slow over the coming months, the prospect of being reviewed in Blender or Arthur will, in the end, keep most publicists supplying me with product—although the "product" in question will increasingly be a url. And people wonder why I mostly buy vinyl!
the latest
latest episodes
You gave away your promotional advance CD to a shop for resale?
And *you* feel wronged by the label?
After having worked as a buyer at a record store for several years (and therefore a recipient of many a promo CD) it's my understanding that most, if not all, promo CDs say "not for resale" and/or "property of the record label" so, technically, Erik was indeed in the wrong. However, it should be noted that advance promos that were sold to us as used CDs were always hot sellers, and we welcomed them with open arms due to that fact. So, well, mixed feelings... Its sort of like getting pulled over for 4mph over the speed limit and then complaining "but officer, I was only speeding by 4mph over! Everyone else is doing it!" to which the officer replies "you just _admitted_ you were speeding."
My understanding is that the first-sale doctrine includes advance promotional CDs as well, so that while Erik's actions might not have been popular with certain groups, I do not believe they were illegal.
To take the analogy of the speeding driver further, imagine a driver going 39 in 40 mph zone, and is pulled over by a car with home-made flashing lights. The "police" get out and say "did you know you were going over 35 mph?" The driver admits going over 35, but points out the limit is 40, not 35. The driver also points out that putting home-made flashing lights on one's car and pulling over other drivers does not make one a police officer.
Christovr - Read the label on the promo cd. You cain't sell it.
And re-read the article everyone. It wasn't about the cd. The dude was at Burning Man! On a fire truck! Shooting flames!
Where were you?
Back in the late 1980s and early 1990s, I knew many music critics for alternative weeklies and every one of them used to sell CDs to supplement their (very) meager incomes.
Oh, for god's sake. He was given--for free!--a promotional CD that likely had all sorts of warnings not to redistribute both on the CD and the jacket. Whether or not it stated that it was watermarked is irrelevant. He broke the agreement, he got caught, and now he's crying about it.
Christovir, the sign said 35, and the driver was going 70 and he knew it. There was just a copy in a speed trap under the overpass.
I noticed that my local indie used CD store had lots of promotional items with the not for sale text on them, but the store owner assured me that it was meaningless drivel - unless a contract is signed, items given out for free for whatever purpose are allowed to be re-sold.
Be sure to read to the bottom of Erik's story about the Knopfler CD - I think my reaction would have been to write NO on the CD with a sharpie and mail it back to Warner's.
DANSAYS, you're not breaking an agreement if you never agreed to it in the first place.
Don't you agree to the EULA by USING THE PRODUCT?
Personally I think record labels send out way to many promotional copies- I know the son of a A&R guy for one of the major US labels, and they have a basement FULL of promo discs. They get sent them by the box, with the idea that they be given away. Eventually these things are going to find their way into the used CD market or online. I don't think the labels are overly concerned about the discs being resold in used stores- if it's well after the release date.
But while the whole promo system is ultimately flawed in concept, sending a still unreleased album to a thrift store is careless and disrespectful to a band, not just the label.
Could the record industry not save itself a lot of lost revenue and a lot of hassle by selling a cd as a download as soon as it's mastered? The fans who want the package will still buy it later, but at least the rest are more likely to buy it instead of getting it from p2p.
This seems to me a perfect example of when antipiracy measures (not to mention the reaction from the label owner) are completely justified.
I've been in a similar situation, when a flunkie at the plant that printed the magazine I worked for got online and spilled details of a carefully timed, exclusive cover story for one of our sister publications. Let me tell you: It sucks.
Davis screwed up. It may have been an entirely honest mistake, but it was his mistake. His argument seems to be that if the label hadn't taken steps to prevent early release of their product, they wouldn't be so upset by his releasing the product into the wild.
Well, yeah. That's obvious. It's also ludicrous. His early release -- accidental though it may have been -- does a disservice to the artist, the label, and any other reviewer or other industry person who will now have to deal with even more draconian copy prevention.
It's not the end of the world for any of these parties, but Davis ought to be a bit more apologetic. Railing against the system when you've screwed up seems a bit childish.
Hmm, it probably varies, but in a lot of places anything that comes unsolicited in the mail is yours (under the rubric of "unsolicited goods"). Which would make their public ostracism false, probably actionable and possibly criminal.
Thanks, looking for the album now on google/megaupload.
If I was a record label, I would erase Erik from my publicity list forever. No one with any love of music sells advance copies of some poor band's cd, that's just dickish, republican nonsense.
You sold an advanced copy of a CD. You got off lightly.
This example also nicely illustrates why watermarking is much worse than DRM (for music). It makes the consumer responsible for copy-protection, not the music industry. If you buy watermarked mp3s then you must somehow make sure that they never ever escape somehow (what if your ipod is stolen, copied without your permission, etc.). Moving from DRM to watermarks might be a clever way for the music industry to move their copy-protection problem to the consumer.
For advance copies, though, I agree with the others that watermarking is sensible thing to do...
It’s sort of hard for me to say this, as a fellow burner and former music journalist who actually saw Erik opine intelligently, if somewhat unoriginally, on the Scientology/Parsons/OTO nexus and Burning Man corporate sponsorship at the Viking Youth camp this year. You want to show your support. But Erik, this is both your bad and your evil, however unintended that it was, and it shows a great insensitivity to the plight of indie labels in a very precarious time for musicians and businesspeople that try to help them.
Believe me, I know how hectic things can get preparing for the playa. Hell, in my early burning days, I used to gift ancient promos out there. (not the easiest thing in the world to do, actually.) But these are different days, and it’s fuckups like this that give record labels greater reason to shrug us off as the anachronistic remnants of another era that we now are.
Quite frankly, who needs us anymore? Do you honestly need to follow a Lester Bangs wannabe to tell you what’s cool when the entirety of music history is immediately available on Myspace, Wikipedia and your average MP3 blog? The ONLY role we play in a record’s release is as pawns in a big marketing plan at this point. And Ben Goldberg doesn’t hold the copyrights to massive back catalogs like the Beatles or the Beach Boys. He’s living from release to release, and a screwup like this can cost him his job, so it’s better for him to get something, ANYTHING out of what just happened to him than to just hemorrhage silently for your sake, Erik. Hiding behind the aegis of “righteous publications like Arthur” is a rather shallow defense for what you unwittingly did to his business.
I’ve often maintained that the burden should be on the music industry to devise a system that stops treating its artists like slaves and its consumers like criminals, considering the evils they’ve enacted on both. But that doesn’t let music journalists off the hook either. We can be just as corrupt and careless as well. So I’d say Erik got off pretty easy at this point. He’s a part of the industry too whether he likes it or not, and as such, he needs to understand the rules of engagement a little bit better next time.
Lady Katey: Don't you agree to the EULA by USING THE PRODUCT?
You must be new here. See: http://www.boingboing.net/2007/01/25/reasonableagreemento.html
Anyway, EULA's have never been shown to mean anything in a US court of law.
There's a big difference between what's legal and what's ethical here. Sure, it was probably legal to sell/give away the promo CD (and it should be). Erik was given the CD as a trusted reviewer however, and to take it to a thrift store before the release date is clearly unethical. The label have every right to be pissed.
The point isn't whether or not the action was technically illegal, it was still highly irresponsible. He's given CD's for *advanced* review, and can't keep them in his possession for a few weeks in order to respect the label's request?
What should be the consequence is that he doesn’t get any more advanced CD’s, at the least. Maybe it wasn’t malicious, or even intended, but it was definitely irresponsible.
Lady Katey, no, you don't. Clicking on an "I Agree" button may be legally binding (in many cases, it's been ruled not to constitute a contract, in other cases, it has), but shrinkwrap contracts of the form "by reading this, you agree to give me all your money" are just empty threats and bluster, and always have been. No legal force. IANAL, though.
It sounds like Erik Davis violated the norms of the label/reviewer community by too-blatantly selling the promo CD. Perhaps, as a consequence, the label will stop sending him advance copies. Perhaps Mr Davis will be ostracized. Perhaps the same things would happen if he wrote too many negative reviews. It's not a legal matter.
I'm sure the right of "first sale" applies here. I'm sure, also, that the "right of never giving you the opportunity of first sale again" applies as well. I concur with the opinion that this is a person who made a bad decision, screwed over a place that tracked back his leaking it, and can expect reduced "favors" next time.
The "but then you might not get into some press outlets" is lame, and powerless. They will route around you like damage, sir.
it has never been proved, just pretended, that p2p was hurting sales. so in fact Erik broke an imposed "agreement", but i don't think he's morally wrong. just let's stay away from the silly views of an industry soon to be dead.
"That said, I also know its not necessarily the worse thing in the life of a record"
This may be true, but it is not up for him to decide - that's the copyright owner's call. Davis messed up pretty bad, and by all rights, he _should_ receive far fewer pre-release review CDs. That's the whole point of watermarking to begin with - identify the leaks, so you can plug them. (Which, by the way, also happened on vinyl releases).
It scares me to think that people would lump this in with DRM or other 'loss prevention' mechanisms - this is an indie label with quite a bit to lose as a result of an entire album leak.
It's tough enough to make a living in music without the very folks who can make your business (i.e., reviewers) breaking it before you even get a chance.
Anonymous, you must be new here.
1) Don't you agree to the EULA by USING THE PRODUCT?
2) you're anonymous.
my name is mud. and, the cd was never 'sold' to a store - it was donated [thrift store]. the cd was then purchased.
So many people discussing that he "sold" it.. reading comprehension must not be your strong point if you think that's what happened. Giving something to the thrift store is not the same as selling it.
It doesn't change the remainder of the argument much, but does weaken your discussion - misunderstanding that point so fundamentally brings into question your comprehension of the rest of the issues.
Lady Katey -
also, yeah, majors might release too many promo cds, but this was ba da bing, which is definitely not a major, and I can guarantee you, from an indie standpoint, pared down their mailing list when they made those watermarks, because they weren't about to spend an extra $4-5 on anyone they didn't have to.
Let me get this straight:
Somebody you don't know
can send you something you never asked for,
and you are now obliged to keep it---
not only can you not sell it, but
but you can never give away, either, apparently---
because of a warning on the object itself,
proclaiming an arrangement
that you never agreed to,
out of a fear of what someone else,
whom you likely will never meet,
might eventually do with it?
This guy was a huge NIN fan who ran a ginormous collector site, and took it to the next level by posting his collection in just about every reasonable format available. Three or four audio formats, two or three video formats. I warned him that was going to attract the wrong attention, and sure enough he was busted by Universal AU for distributing copyrighted material.
Besides fining the shit out of him, they reclaimed all of the promotional CDs and videos he had amassed over the years. It really sucked, but he was kind of stupid to openly host the entire Nine Inch Nails audio and video collection, free for the download.
So yeah, those labels on promo CDs? Not entirely empty threats.
It should also be noted that the album had already leaked prior to his slip up.