April 17, 2014

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Is Spotify the Celestial Jukebox for Music?

In 1994, law professor Paul Goldstein popularized the term “celestial jukebox” to refer to his vision of a networked database of consumable on-demand media. In the face of copyright law that was ill-suited to the rapid rate of technological change, he described a system in which consumers would pay-per-play rather than purchasing and owning individual works. In his book Copyright’s Highway, he predicted that, “the pace of technological development is so fast and the forces of market demand so strong that the celestial jukebox, however configured, will be in place sometime early in the twenty-first century.”

The explosion of broadband and mobile internet access has made that viable, and countless startups have taken a stab at implementing the vision. One of the biggest challenges for these companies has been compiling a library of licensed works that is comprehensive enough to attract a critical mass of users. In the music market, the pay-per-play model has generally given way to monthly subscription or ad-based models. I’ve been a casual user of Last.fm and Pandora, but my listening habits haven’t been fundamentally altered. That changed last week when I finally decided to try Spotify. Spotify may be the first real contender for a mainstream “celestial jukebox” of music. But is that a good thing?

First, here’s what I think sets Spotify apart. (And by the way, I have no financial interest in Spotify.) Spotify allows you to choose to listen to a specific song or album at any time, unlike the awkward workarounds that Last.fm and Pandora rely on in order to fall into “webcaster” blanket licenses. It’s also easy to “star” favorite tracks in order to compile your music library, to build playlists, and to share your lists with friends. With the premier paid-tier subscription, you can listen to Spotify on your mobile device and to keep a local cache of your music that you can listen to when you’re not connected to a network. The most comparable service is Rhapsody, which has been offering a similar product since 2001. Rhapsody does not offer a free tier, which may explain its slower adoption rate than Spotify. It also supposedly has a somewhat smaller catalog. I never seriously considered Rhapsody because I wanted to own “my” music, but enough of my friends had raved about Spotify that I eventually compromised and decided to try the premium service. My listening habits in just the past week feel reinvigorated as I choose from the huge catalog and listen from my computer, phone, or in my car (bluetooth from my phone). The catalog includes a surprising amount of music within my somewhat obscure tastes, including many artists that are new to me.

I feel a little bit dirty. I want to own my music, and I don’t like the idea of losing my whole library if Spotify goes out of business or loses license deals or if I decide to stop paying $10/mo. But I also really like Spotify. Have I made a Faustian bargain? Later in his book, Goldstein notes that:

The capacity of the celestial jukebox to post a charge for access, and to shut off service if a subscriber does not pay his bills, should substantially reduce the specter of transaction costs. As these costs dissolve, so, too, should the perceived need for safety valves such as fair use.

Uh oh. Spotify has indeed been criticized by the Free Software Foundation as being “defective by design” because the files are subject to restrictive Digital Rights Management. DRM does not traditionally leave much room for fair use. Spotify stands in contrast to sites like Soundcloud in this regard. Soundcloud is a self-publishing site for music artists and DJs, which has grown rapidly in the past couple of years. I use Soundcloud extensively for listening to DJ sets, following up-and-coming artists, and listening to the many creative but often unauthorized remixes from new producers. Many artists make their tracks available for free download. Soundcloud is not for listening to the full catalog of established artists or for building an extensive music library, but it is an extremely vibrant hub of musical creativity. I can only imagine that Soundcloud has to rely heavily on the DMCA notice-and-takedown regime for legal protection. The social norms of the DJs on the site are certainly not to obtain authorization for every single track included in their mixes, nor would that be practical in such a highly dynamic environment.

When I signed up for Spotify, the first thing I did was step through the tracklist of one of my favorite DJ sets on Soundcloud and search for each track on Spotify. I found about one in four tracks on Spotify, which I added to my library and used for recommendations to find other tracks that I might like. I found plenty of good stuff, and at the moment I am really enjoying my listening. Something is very good about all of this, but at the same time it seems like a tenuous balance. It’s not clear that the Spotify business model is viable in the long term, and it’s not clear that the artists are yet making their fair share.

At the moment I’m singing along, but I’m not sure that the celestial jukebox will ultimately live up to its divine vision.

Comments

  1. paul says:

    I’m not sure I understand the argument against fair use here. It seems to be based on the notion that everyone who counts will always be able to pay whatever the market will bear for access, hence free access is no longer important. (And yes, in the short and medium term the price will stay at “whatever the market will bear,” i.e. the monopoly price, because of the huge cost of entry, network/positive feedback effects, and the interest of the content gatekeepers in maintaining the distributor’s price levels.)

    To my mind, what the celestial-jukebox argument against fair use really does is make the case for digital distributon of copyrighted material as a natural monopoly, and as one that should properly be handled by the government, which has the power to do the transfer payments required for universality.

    • Steve Schultze says:

      That doesn’t sound too far off from law professor Terry Fisher’s proposed “Alternative Compensation System” in his 2005 book, “Promises to Keep“. In Chapter 6 he describes how:

      “A creator who wished to collect revenue when his or her song or film was heard or watched would register it with the Copyright Office. With registration would come a unique file name, which would be used to track transmissions of digital copies of the work. The government would raise, through taxes, sufficient money to compensate registrants for making their works available to the public. Using techniques pioneered by American and European performing rights organizations and television rating services, a government agency would estimate the frequency with which each song and film was heard or watched by consumers. Each registrant would then periodically be paid by the agency a share of the tax revenues proportional to the relative popularity of his or her creation. Once this system were in place, we would modify copyright law to eliminate most of the current prohibitions on unauthorized reproduction, distribution, adaptation, and performance of audio and video recordings. Music and films would thus be readily available, legally, for free.”

      • paul says:

        Exactly; that was pretty much what I was going from, sans the memory and search-fu to come up with a citation .

        Or you could do some kind of variation of the blank-tape levy. Bandwidth would substitute for physical media, although you might have to play some games with data types to account for the differing information densities of text, sound and video. There would have to be exemptions for people claiming to transfer large volumes of noncompensatable material (and conversely, a loss of legal remedies for rightsholders who did not make their material available for the system, much the way that failing to register copyrights and pay the associated fee currently precludes collecting the most lucrative scale of damages.)

      • Nathan says:

        “The government would raise, through taxes,” vs. “Music and films would thus be readily available, legally, for free.”

        You can’t have both sentences in the same paragraph. It is impossible to have something for free if the artists are getting paid via taxes. It isn’t “free” it is a forced tax based service.

        I rather purchase my music, legally as current then subscribe to any sort of service, and if it ever comes to being forced tax, I would refuse to pay taxes. Why should I pay for content that I don’t consumer? That is what a tax would be. There is no “free” music in such a model, just as there is no “free lunch.” In fact, there isn’t even “freedom” in such a model, it is and would be a complete bondage.

        Taxes have a purpose, but taxing a population to grant access to creative works is completely contradictory to the U.S. Constitution, as it would not foster creativity, it would put everyone in bondage.

        • paul says:

          In economic terms the upfront payment through taxes makes a great deal of sense precisely because of the free-as-in-beer status. There’s a strong result that people will consume more of something if the price is low or zero than if they have to pay. That’s been falsely deployed in the healthcare debate (because healthcare consumption is an unpleasant-enough activity that price-based overconsumption is seldom a big deal) but in the area of creative works overconsumption isn’t a bad thing, it’s a good one. We want people consuming as many creative works as they can stuff in their ears and their eyeballs.; it would be a good thing for the country, and quite probably lead to the creation of countless additional creative works.

          • Anonymous says:

            This is absurd. Maximizing consumption has nearly destroyed music. Bringing the government into this presumes that the government is an impartial agent, a notion that is absolutely untrue.

            You can only take theory so far until it collides with reality. Also the idea of a creator of an item being paid per play is disturbing. I neither pay every time I read a book nor when I watch a DVD.

            This model is also socially deficient. The best way to increase the number of listeners is not by reducing price, which insults the listener, btw. The best way is to encourage friends to form listening groups, with incentives for promoting less consumed media. Finally, the idea that there is a positive outcome from having as many as possible views of media as possible is a meme lingering from Hollywood’s mass production and mass consumption theology. A positive outcome is determined when a song is valued by the listener.

            The mass consumption goal is offensive to listeners and perverse to idea of appreciation. Mass consumption reduces valuation. It is not possible to call something positive if the metric for measuring the outcome is destroyed in the process. The goal should be to get the songs to those who want to listen to them. To tax people in order to make them more cultured is one of the most umbrella society top down master’s paradise fantasy models I’ve yet encountered. If people ought to broaden their experiences than convince them, otherwise accept that some people care about other things. They value other media or perhaps none at all and would prefer not to have a fixed system with fancy ideas hanging over their heads.

            Idealism is fine, but this is the sort of lunacy that leads to police departments having tanks because no one is at the helm to say I don’t want my taxes paying for that. Next every child will have piano lessons including droopy eyed armless ones.

            Gets my tiger blood pumping.

  2. Drew W says:

    You list Spotify’s closest competitor as Rhapsody, but I thought I’d point out another service called Grooveshark, which is basically identical to Spotify in every way– it has a large library, single track selection with play/pause/skip options, it has a free version for online listening, and a premium subscription service that allows a local cache to a mobile defice for offline listening (I subscribed for $50/year during a Christmas special). Maybe I am naive in thinking that this is a legal competitor to spotify– maybe it is skirting by waiting to get sued and taken down– but my understanding is that they license their songs and respond quickly to DMCA takedown notices.

    I don’t know that this is particularly relevant, I just thought it deserved a mention.

    • Steve Schultze says:

      Yeah, Grooveshark is an interesting case. They have active lawsuits from all the labels (their library is user-uploaded rather than licensed directly). Their apps keep getting kicked out of the app stores. Facebook disabled their account integration. I haven’t followed the twists and turns lately, but I’d be interested to hear analysis from anyone who has.

  3. Mike Zajko says:

    Interesting update, I’ll keep biding my time though. There’s not as much choice in Canada at the moment anyway, due to national restrictions, but Spotify is set to launch here soon.

    Soundcloud is an interesting place, and it’s where I make some good discoveries, but they do tend to be limited to a particular Dj-space. It’s definitely a good place to contrast the social norms of sampling and electronic music with the letter of copyright and terms of service. That said, they do filter uploads against a list of restricted works, including audio segments in mixes.
    Mixcloud seems like a good alternative (staying in the electronic realm), and it’s really effective at tracking identifying tracks in a mix and attaching direct links to various retailers.