November 19, 2005

Magnatune: We're not as evil as we could be

Author: Matthew Davidson

Magnatune is the Internet record company that rejoices in the slogan "We are not evil." One of the key planks of Magnatune's business model has been its commitment to what it calls "Open Music":
Non-commercial use of our music and its "source code" is free. However, if you make money ("commercial use") with our music, you'll have to "share the wealth" and give us and our artists a share.

All of Magnatune's recordings are distributed in MP3 format under the Creative Commons Attribution-NonCommercial-ShareAlike license. This license is very much, as the Creative Commons Project puts it, a "some rights reserved" license. If you want to use the recordings commercially (and the Creative Commons definition of "commercial" is very broad), you are obliged to purchase a license from Magnatune to do so. Only the "lossy" MP3 versions of the recordings are so licensed, so if you want a high-fidelity recording you will need to pay.

Few people would feel this is an unreasonable trade-off. The ethical implications of restricting certain uses of artistic works are different to restricting the use of something of immediate practical benefit to people, such as software. Even those who argue stridently that software should always be "free as in speech" would be likely to concede that in most circumstances neither total freedom nor total control is desirable when the resource in question is an artistic work.

If you're making money off the music, you have to share with the musician. If you're non-commercial (as the CC license specifies) there's no cost. -- Magnatune's John Buckman, 2003-09-21

Magnatune appeared to be a record company that "gets it"; one that understood that people want to share the music they love, that sharing is easier than ever before, and that when someone does this he is not a thief or a pirate, but a promoter. This was a company that understood what businesses around culture should be like in the twenty-first century: publishers get paid to publish and to regulate commercial use of a work, not to claim monopoly control over distribution and re-use.

Free as in preview

A couple of weeks ago I was pleased to find that Magnatune had a new album available by one of my favourite musicians. I downloaded the new album with keen anticipation, fired up totem, and sat down to my day's work. At the end of the first track a synthesized voice warbled "That was track number one from the album [name withheld] by [name withheld] from"

"Oh, those quirky Magnatune artists, incorporating tacky '80s-style synthesized voices into a track to show their appreciation for their progressive publisher," I thought, smiling to myself. When the voice returned on the second track I stopped smiling. By the time I'd checked a track off an album from a different artist I was furious. A similar message was appended to the end of every MP3 file I downloaded. I have often received such messages, in the dark days before I discovered the GPL, when the principal function of most of my software was to remind me that my trial period had expired. Magnatune is possibly the first organisation in the world to distribute "music nagware."

As a fiscally disadvantaged hacker I have never paid Magnatune a cent. However, I often speak and write on topics relating to copyright, and I invariably make reference to the Creative Commons project and to Magnatune. I have, non-commercially and at my own expense, compiled CDs of "free culture" that I have given away at events, including recordings by Magnatune artists and hypertext links to the Magnatune Web site. More than a few musicians are aware of Magnatune's existence because of me, and most importantly I have shared music from Magnatune with friends who love music. And I'm not alone; many people have contributed to the success of Magnatune in this way.

Yet the music we love and support is now calling us freeloaders.

Unfortunately, I am aware that many users listen to Magnatune music on a regular basis, many of whom rarely--if ever--buy anything. While I would love to be able to support this, frankly, Magnatune can't afford it. -- John Buckman, 2005-10-27

Bandwidth costs money

In a forum post, Magnatune founder John Buckman offered his justifications for the new nagware feature. He said many media players don't display title, artist, and source information for files as they are playing. Consequently people who might be interested in purchasing a CD or commercial use license for music from Magnatune may have difficulty doing so. And, he said, the Magnatune business model has always been "try before you buy."

A reasonable person might argue with those assertions. While it is true that the phrase "try before you buy" has always featured prominently on the Magnatune Web site, it is also the case that in the information on the site, in press releases, and in interviews, the company has clearly stated that for non-commercial use there is no obligation to buy, no matter how often you listen to the music.

Addressing Buckman's other claim, and subsequent discussion on the forum that raised the issue of bandwidth costs, there is an important distinction to be made between different ways of listening to Magnatune's music. Customers may download songs with each listen (which Magnatune calls "streaming," but which is actually just the user's media player doing a conventional download of the files over HTTP from Magnatune's server), or they may listen to files they downloaded and saved locally, or obtained from other sources (e.g. P2P file sharing). The first of these is a useful service that Magnatune provides, and one which imposes a significant cost on Magnatune. The second imposes negligible or zero cost on Magnatune, unless it has adopted the RIAA attitude that anybody who listens to music without paying has stolen something.

It is not unreasonable to ask that users of Magnatune's bandwidth should pay. However, the company makes no distinction between uses of the music that impose significant costs on Magnatune and uses that impose no cost. Everybody gets the nag message. And not only does Magnatune do little to encourage mirroring or peer-to-peer sharing of its files, but all of the links to the recordings on Magnatune's site are to playlist files, not to the actual MP3s. Therefore, non-technical users will inevitably download the same file each time they listen to it, because it is not apparent there is an alternative. It is absurd of Magnatune to justify a blanket imposition of nagware on the basis of overwhelming bandwidth costs when their site has been engineered to generate these unnecessary costs.

Magnatune could reduce its bandwidth bill by several orders of magnitude by:

  • Making it easier for people to download and save files than it is to "stream" them.
  • Encouraging the formation of a Magnatune mirror network.
  • Encouraging the use of BitTorrent; possibly even charging for HTTP downloads, but not for torrents, as Xandros has done.

Under these conditions it would be ethical for Magnatune to insert these messages into its "stream" playlists, where it may -- as it claims -- provide a useful service to people, or even to offer playlists minus the nagware for a fee.

Where's the harm?

Why should Magnatunes' nagware upset me so much? After all, all the music is still available for download at zero cost, and it's still available under the same Creative Commons license. Any reasonably intelligent teenager could write a shell script to automatically strip out the nag message with mp3splt on download, and it would be perfectly legal to do so. It would also be perfectly legal to take these files and distribute them yourself.

But this issue is not about you or me personally being able to listen to the music at zero cost. Magnatune has now made it plain that listening to its music under any terms other than "after you try, you must buy" is considered illegitimate, and that they will attempt to frustrate such use. Indeed its business model, as they now see it at least, is as dependent on discouraging free non-commercial distribution as that of any other online music publisher.

Given that the company has made this backwards step into the inglorious past of music publishing, why does it persist in publishing the MP3 files under a licence that explicitly grants the rights that they do not want us to exercise?

I posted to the Magnatune forum outlining my concerns, but the post didn't make it past the moderator, unlike a dozen or so uncritically supportive ones. I emailed John Buckman, asking for a response. He replied, "Honestly, I don't plan on responding, simply because it's your opinion and you're entitled to it. I don't agree with your interpretation of the facts, and don't really want to argue with you about it."

That being the case, we can only speculate about the reasons behind the inconsistency between Magnatune's notional support for the creative commons and its actual behaviour. My guess is that Magnatune's situation is somewhat analogous to the software publisher that claims to "leverage the power of the open source development model" with their proprietary software. Magnatune has received overwhelmingly positive press coverage for their advocacy of "open music" and would be wise to downplay its change of direction.

Magnatune has exploited the goodwill of supporters of the creative commons (with and without capital letters) to garner a better reputation than it deserves. This is bad for the commons, bad for music, and ultimately bad for Magnatune. In this situation, the ethical course of action for anybody who cares about the creative commons, music, or even Magnatune, is to boycott Magnatune entirely until it reverses its change of policy.

Where previously Magnatune had no comparable competitor, they are now essentially playing the same game, by the same rules, as half a dozen of the biggest corporations on the planet -- organisations that do not welcome competition, and are perfectly capable of having Magnatune for breakfast. Without the viral marketing effects of unrestricted non-commercial distribution, the company would be in trouble. To paraphrase Eric Raymond, Magnatune either can have an audience or it can exercise control over non-commercial use of its recordings. It can't have both.

The world needs a record company that "gets it"

In every respect except this latest development, Magnatune remains an excellent record company. By all accounts it treats its artists immeasurably better than other record companies. And on an artistic level it is an unqualified success.

Yet all this good work will be undone if Magnatune continues its devolution to a conventional business model. Magnatune can connect its artists to a huge audience that wants to hear quality music, expanding the potential for commercial licensing and a host of other paid-for services, if it sticks to its principles as originally proclaimed and embraces unconventional methods for cheap and effective non-commercial distribution of its music.

Magnatune still has the potential be a commercial, as well as an artistic success, and to bring the music industry into the twenty-first century. The world needs the "Internet music without the guilt" that Magnatune promised.

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