3 Good Reasons I Can’t Take David Lowery’s Open Letter to Emily White Seriously (and why you shouldn’t either)

Posted By on Jun 20, 2012 | 7 comments


On Monday, David Lowery, a musician whose work I’ve often enjoyed, and whose tirades about the music industry I’ve often chided, wrote a scathing rebuttal to NPR intern Emily White’s blog post about how much music she had in her collection that she didn’t pay for. Lowery’s article quickly grew legs, particularly in the music business circles I frequent, and has become a major point of debate over the last few days.

Lowery struck a nerve here, and for good reason. He unabashedly takes a stance on an issue near and dear to many, and a moral and ethical question that most people would rather ignore. Artist compensation is a very real problem that affects people in very real ways, myself included. But I, for one, believe Lowery’s article has critical flaws that prevent me from taking his argument with anything more than a grain of salt.

1. He’s disrespectful, sarcastic, and despite his statements to the contrary, he aims to shame Emily White.

The preamble to the article clearly states his intentions “not to embarrass or shame her,” and this is restated in the first line of the first paragraph. Yet, by the second paragraph, Lowery accuses White of “behav[ing] unethically.” Right from the get-go, Lowery’s intentions here are clear: to scapegoat Emily White for illegally procuring music, and to demonstrate how her actions affect the artists she so loves.

This scapegoating is, perhaps, emphasized further by the rhetorical form of the open letter that Lowery chooses to employ. He could have just as easily posted an essay about his feelings on piracy, and even linked to White’s article, but he chose deliberately to format his article as an open letter to publicly call out White and by proxy anyone who has behaved similarly or shares her beliefs. Moreover, he uses this format to directly address White with confrontational personal attacks:

You seem to have internalized that ripping 11,000 tracks in your iPod compared to your purchase of 15 CDs in your lifetime feels pretty disproportionate. You also seem to recognize that you are not just ripping off the record labels but you are directly ripping off the artist and songwriters whose music you “don’t buy”. It doesn’t really matter that you didn’t take these tracks from a file-sharing site. That may seem like a neat dodge, but I’d suggest to you that from the artist’s point of view, it’s kind of irrelevant.

or my personal favorite:

I am genuinely stunned by this. Since you appear to love first generation Indie Rock, and as a founding member of a first generation Indie Rock band I am now legally obligated to issue this order: kids, lawn, vacate.

You are doing it wrong.

Lowery also dispenses with formalities and resorts to sarcasm throughout the article. While I’d argue that this is fine – it’s his blog, after all, and I’ve been guilty of sarcasm once or twice myself – it hurts his argument if it makes it appear that he’s being anything less than respectful (remember, he stated that very plainly in the first paragraph). Some examples:

Is it really that inconvenient to download a song from iTunes into your iPhone? Is it that hard to type in your password? I think millions would disagree.

or

We should change our morality and ethics to accept looting because it is simply possible to get away with it. And nothing says freedom like getting away with it, right?

or

Congratulations, your generation is the first generation in history to rebel by unsticking it to the man and instead sticking it to the weirdo freak musicians!

As if sarcasm and personal attacks were not enough to tarnish the tone of this article, Lowery descends into outright blame, sharing the tragic stories of his friends Mark Linkous and Vic Chesnutt, both of whom took their own lives after lifelong battles with depression. In his anecdote, he states “their situation was worsened by their financial situation” and thereby correlates their suicides to their diminished wealth. But this passage serves a more sinister purpose: to implicate White and anyone else who has illegally enjoyed music in the deaths of two great artists. This linkage is unfair and egregious. He even goes so far as to preface the passage with “On a personal note,” assumedly to try to dodge this bullet, but it is difficult to perceive this section as anything but public shaming.

2. He’s empirically wrong.

Even if we ignore the language and rhetoric this article uses, it is impossible to overlook the false data, unfounded accusations, assumptions, and lack of evidence found throughout.

The average income of a musician that files taxes is something like 35k a year w/o benefits.

This claim is not backed up by any citations or references. Nor is the claim immediately following it… which is is even placed in block quotes to imply that there should be a citation:

Recorded music revenue is down 64% since 1999.

Per capita spending on music is 47% lower than it was in 1973!!

The number of professional musicians has fallen 25% since 2000.

I did some Google searching – this text is not to be found anywhere, despite the block quotes Lowery uses in his article. As best I can tell, these are his own words and his own data. There are no links or references to outside data sources.

And Lowery is often just plain wrong:

Yet Spotify’s CEO [Daniel Ek] is the 10th richest man in the UK music industry ahead of all but one artist on his service.

The “data” here comes from a report published by the The Sunday Times in the United Kingdom, a report they call “The Rich List” in which they rank the wealth of the UK music industry. Here’s that list, with my own additions:

Rank Name Wealth 2012 Occupation On Spotify?
1 Clive Calder £1,350m Executive, Zomba/Jive
2 Sir Cameron Mackintosh £725m Musical theater producer
3 Sir Paul McCartney £665m Artist, producer, executive Yes
4 Lord Lloyd-Webber £590m Musical theater composer Yes
5 U2 £514m Artist Yes
6 Simon Fuller £375m Television producer, artist manager
7 Simon Cowell £225m Television personality and producer
8 Sir Elton John £220m Artist Yes
9 Michael Flatley £192m Dancer/choreographer/artist Yes
10 David and Victoria Beckham £190m Artist Yes
10 Sir Mick Jagger £190m Artist Yes
10 Daniel Ek £190m Executive, Spotify

As you can see, there are several artists who make significantly more money than Daniel Ek, and all of them are on Spotify. Perhaps more poignant, take a look at the wealth differential between Clive Calder and Daniel Ek. Why does Lowery choose to vilify Daniel Ek, but not label executives like Calder? And why not television personalities like Cowell or Fuller?

The point Lowery is really trying to make here is not that Daniel Ek makes a lot of money and artists don’t, but that Spotify is somehow depriving the industry of its rightful revenue, or worse, replacing revenue with the proverbial “river of nickels.” He’s right in stating that Spotify’s artist payouts are paltry, at best, but that really has very little to do with Spotify, and everything to do with the way that artists get paid from Spotify.

Streaming services are unique: they are the only source of music revenue in the entire industry that subsequently flows to performance royalties, mechanical royalties, and sales. This is a very important distinction, in that songwriters are getting paid twice, and artists are getting paid as well. Compare this to the iTunes payouts that Lowery holds in such high regard, where songwriters are only paid for mechanical royalties. (Oh, and let’s not forget that the United States is the only country on earth that doesn’t require payouts of performance royalties to artists, but only songwriters.)

Streaming services like Spotify pay out to songwriters based on their gross revenues. As defined by current copyright legislation, interactive streaming services subtract the cost of mechanical licenses from their gross revenue, and pay 10.5% of the remaining amount as digital performance royalties, divvied out according to the number of times the songs have been played. It follows that Spotify payouts aren’t going to be very high in the United States until their paying subscriber base grows. This should come as no surprise.

As an aside: why does Lowery so diligently disparage Spotify, but somehow support MOG as a good legal alternative to piracy?

The analysis of consumer costs in music buying is equally flawed:

And I’m gonna give you a break. I’m not gonna even factor in the record company share. Let’s just pretend for your sake the record company isnt simply the artists imprint and all record labels are evil and don’t deserve any money. Let’s just make the calculation based on exactly what the artist should make. First, the mechanical royalty to the songwriters. This is generally the artist. The royalty that is supposed to be paid by law is 9.1 cents a song for every download or copy. So that is $1,001 for all 11,000 of your songs. Now let’s suppose the artist has an average 15% royalty rate. This is calculated at wholesale value. Trust me, but this comes to 10.35 cents a song or $1,138.50. So to ethically and morally “get right” with the artists you would need to pay $2,139.50.

This twisted logic simply does not hold. By “giving White a break,” Lowery is in fact changing the data to appear more persuasive. It looks, on the surface, like supporting the artists she loves would have only cost White $2,139.50 – or about $17.82 as Lowery calculates it over 10 years. In reality this number is only how much the artist would have received over that time period for mechanical and artist royalties (assuming they wrote 100% of their songs, which they usually don’t).

Let’s figure out how much it would actually cost White to support those artists. Well that’s a pretty simple calculation. If we assume half of her 11,000 songs retail for 99 cents and the other half for $1.29, then 5500 * $.99 + 5500 * $1.29 = $12,540.

This also deflates the entire following argument that the monthly cost of supporting artists is much less than the cost of other typical expenses. Combining my calculation with Lowery’s assumption that White has been enjoying music since 5th grade, her 11,000 tracks would have cost her about $103.75 per month (and I don’t know many 5th graders with that kind of money). That’s more than the cost of a cell phone, internet access, and a Metrocard (as he uses in his examples), and probably more than many of her other expenses.

Then come the price comparisons to Apple computer hardware. First, it is patently false to state that buying computers is a sort of “price of admission” to get one’s hands on pirated music. Travis Morrison, an amazing artist who I have stolen from in the past and also given hundreds of dollars to, outlines quite clearly in his own rebuttal how music piracy and theft existed long before Apple was on the radar screen of anyone in the music business.

Then Lowery questions: “Why are we willing to pay for computers, iPods, smartphones, data plans, and high speed internet access but not the music itself?”

We spend money on things we derive value from, and we spend more money on items we find derive more value from. Subsequently, the price of any good or service is ultimately determined by what someone is willing to spend on it. The logic here is simple: if consumers are willing to spend $1.29 on a song, then that should be the selling price, just as a Macbook is worth $2000 if someone is willing to spend that. And consumers are indeed voting with their wallets. $1.29 might just be too expensive for music, but $2000 is not too much to spend on a laptop.

And lastly, his complete lack of understanding about Google’s search and ad technologies shows through quite clearly, and instantly discredits him among the very tech-centric music buyers he aims to persuade:

Actively “call out” those that profit by exploiting artists without compensation. File sharing sites are supported by corporate web advertising. Call corporations out by giving specific examples. For instance, say your favorite artist is Yo La Tengo. If you search at Google “free mp3 download Yo La Tengo” you will come up with various sites that offer illegal downloads of Yo La Tengo songs. I clicked on a link to the site www.beemp3.com where I found You La Tengo’s entire masterpiece album I Am Not Afraid Of You And I Will Beat Your Ass.

I also found an ad for Geico Insurance which appeared to have been serviced to the site by “Ads by Google”. You won’t get any response by writing a file sharing site. They already know what they are doing is wrong. However Geico might be interested in this. And technically, Google’s policy is to not support piracy sites, however it seems to be rarely enforced. The best way to write any large corporation is to search for the “investor’s relations” page. For some reason there is always a human being on the other end of that contact form. You could also write your Congressman and Senator and suggest they come up with some way to divert the flow of advertising money back to the artists.

First of all, Google is not in the business of censoring search results. They have even publicly derided the government of China for doing so. Google instead aims to provide users with the most relevant content for any given search. Why then is it surprising that a search for “free mp3 download Yo La Tengo” turns up illegal downloads?

Second, Google profits from advertising through their content network (i.e. the ads that Lowery points out are present on many filesharing sites). But while advertisers do have the ability to specifically block their ads from appearing on whatever sites they choose, it isn’t really in their best interest to do so, as these sites may be the source of quality traffic. And many sites used for illegal filesharing are also used for any number of legitimate uses. It is not a solution to call Geico and tell them that their ads are appearing on piracy sites. At best you’ll get some confused customer service person asking what you’re talking about. And if you ask an investor relations person, as Lowery suggests, you most likely will never get a response.

(Another gem: “Or unless you think Google is in the music industry–which it is not.” Google Music is, in fact, a vital part of the new music ecosystem, and the primary method for purchasing music on any Android phone.)

There is, of course, one other problem with Lowery’s article…

3. There’s a very good chance we are all horribly, horribly wrong.

An eloquent response by Wesley Verhoeve of Family Records explains it perfectly:

I’d like to remind David for hundreds of years the accepted norm was that the earth was flat, and that women should probably not vote. Lets not get into a debate on the severely broken copyright system, and just accept that it’s severely broken. We change traditions once we gain new insights.

We can change. This is the very nature of our democracy, and the crucial point in the debate over intellectual property. I don’t intend to ramble on about this here – if you’ve gotten this far in, I commend you. But it is important to understand that copyright as we know it has only been around for a couple hundred years. And even in those couple hundred years it has been reshaped and reformed into a completely different beast than the “right of exploitation” the Framers had intended.

We created our royalties system through legislation, lobbying, and rare but profitable mutual understandings. We determined rates by careful negotiation between trade groups, unions, and corporations. We’ve determined the price of the music we buy through the natural movement of markets. And ultimately we’ve chosen to say that we believe the entire thing is broken and needs fixing.

I’m not suggesting answers here, as I’m not sure I have them. I’m not suggesting that music should be free. I’m not suggesting that copyright holders shouldn’t have the right to exploit their works however they please. And I’m not saying we should abolish copyright altogether. I’m saying that the music industry as we know it has some serious issues that Lowery overlooks in an effort to bolster his argument that the old methods of paying artists are the only way the industry can stay afloat. I’m saying that we need new models, new technologies, new legislation, and a new direction. And if the American people so choose, we can even rewrite our Constitution.

Remember, we have the right as Americans to change our own Constitution.

More than anything, though, I’d just like to apologize to Emily White. Your honest and introverted article has most certainly been blown out of proportion by all those who’ve chimed in on this topic. And I, for one, think you’ve been unjustly shamed.

  • Bslack

    The concept of theft relies heavily on ones idea of perceived value.  If you take something that has no value, is it theft?  Also, if you must pay for something, you believe it has value.  If the socially accepted norm is not having to pay for something, than it must not have value, and therefor is not theft.
    For most people listening to music is a passive activity.  You do it while you are doing something else:  work, study, work out, drive, etc.  A movie is inherently active, you must sit down or go somewhere to do it.  That activity gives it perceived value.
    An emotional attachment can give something value.  If you know, or love, a band, you will gladly give them your money.
    A physical entity gives a thing value in your mind.  An LP or CD has value, but the songs on them may not.  If I buy a song and you listen to it with me, what is the difference if I buy a song then give it to you to listen on your own?  Does my presence give it value, or does the song have intrinsic value on it’s own?
    I have 13,880 songs in my library and I can’t think of one that I haven’t paid for.  This isn’t due to moral superiority, it has to do with the way you understand the abstract concept of software.
    The music industry did a poor job of adapting to a new technology a decade ago, now they have created a sense of ambiguity and confusion over the value of their product.

    • http://www.tinyjetpack.com Mike Fabio

      I agree with you on nearly everything here, though I don’t think that passive/active behavior is a determinant of value. I think value is ultimately derived from an opinion of how useful something is, or as you mention the emotional attachment of something. Being physical gives perceived value, which can be the same as real value, but not necessarily.

      At the end of the day, markets determine value on their own, and an item’s price is determined by a combination of how much the seller would like to receive and how much the seller is willing to pay. If these things don’t line up…

  • http://jrothphotography.com/ JR

    Roger that. Well written. I hope Lowery has an opportunity to read this. 

  • http://twitter.com/kfdavila kfdavila
    • http://www.tinyjetpack.com Mike Fabio

      Good find. So why didn’t he mention it in his post, or link to it?

      My primary gripe with Lowery’s article is not his thesis – I don’t necessarily thing he’s wrong, at least not about everything – my gripe is with his presentation.

      • http://twitter.com/kfdavila kfdavila

        Most likely because, much like poor Emily, when you make a blog post on your own blog, it’s for your regular readers and you don’t expect it to go viral. He’s cited this article many times on the blog, so I imagine he didn’t think to do it again. He sourced it almost immediately (when asked) in the comments of his blog post.

        As you admitted in your posting, it’s a bit hard to fault him for tone on his own soap box. This wasn’t an editorial in the paper, or an article submitted to another more-trafficked site for mass consumption. This was a post on his (he is one of 4 contributors I believe) blog, a blog about him being cranky about peoples assumptions regarding the music business. The readers expect a fair amount of crank.

        This was hardly his more informative post. It’s going viral purely because people love a soap opera. This is the post that should have been getting this attention. I’m sure it has been sent to you before. 
        http://thetrichordist.wordpress.com/2012/04/15/meet-the-new-boss-worse-than-the-old-boss-full-post/

  • Dickj

    good responses.  I had the same basic thoughts when I read it.