Indie Power—Now

On June 30, I stood with independent musicians and activists at the corner of Eighth Avenue and 15th Street, in front of the Manhattan headquarters of Google, protected from a pouring rain only by construction scaffolding. We were there for a silent concert, holding our instruments but not performing, protesting the inequity and outright theft that threatens our careers.

Okay, we ended up playing a little. We’re musicians, after all. But we were really there to hand-deliver a petition with over 5,000 signatures, among them some of the most respected musicians in the U.S., calling for “Economic Justice in the Digital Domain.” The executives in charge weren’t there to receive it. Due to the pandemic, they were likely working from home. We slipped the document under the door, mostly a symbolic gesture. But the issues that hold independent musicians down, now more than ever, are quite tangible.

Sixteen months ago, I and several others from the Indie Musicians Caucus joined with DJs and activists from the NYC Artists Coalition to form the Music Workers Alliance, an organization of, by, and for independent musicians and DJs. We came together because we are fed up with unfair treatment and lack of benefits, contracts, and representation. We launched this alliance to improve our working conditions and amplify our voices in the political and economic decisions that affect our lives. That petition was one example.

In laying out the premise of this article, the editors of this magazine asked me to “Imagine those sitting across the table from you as reasonable people in a position to give musicians what they need. What would you ask them for?”

Our road to economic justice begins with recognition of the following: there are few if any “reasonable people” (or rather, everyone believes themselves reasonable); those able to grant us economic justice have power and we need to assert ours (as Frederick Douglass said, “Power concedes nothing without a demand.”); and we need to demonstrate that we’re able to fight for our demands before we even get close to the negotiating table. The “we” I’m referring to are that large majority of working musicians and DJs who are either not members of the American Federation of Musicians (AFM), or lack voice within it. Most are indie musicians—those who record for independent and self-released labels, and/or work the network of clubs and touring circuit clubs in which recording artists (or would- be recording artists) perform.

We desperately need to be at that table now. New York’s Center for an Urban Future reports that “arts and entertainment” has lost 69.2% of its economy. Americans For the Arts cites 95% of artists as having experienced loss of income, and 63% as fully unemployed.

Although the medical phenomenon of COVID-19 provided the final push into precarity, it is the lack of political power that brought us to the edge of the financial cliff. To have voice and power at the table where decisions that affect our lives are made, we need to organize. Theoretically, we’re already organized through our union. The AFM—pre-COVID, at least—functioned well enough in the areas it has had under contract since the 1950s: symphonic music, Broadway, major-label and film recording, club dates, and, more recently, music teaching. But it never truly organized the indie sector. This gap in representation is both reflection of and cause for the difficulties in organizing independent musicians and DJs.

As Stanley Aronowitz and Mike Roberts explained in their 2001 study of the record industry, “The Irony of the Indies,” the supposed “indie label phenomenon” has frustrated traditional organizing approaches by using outsourcing, subcontracting, and licensing to avoid unionization. The irony of Aronowitz and Roberts’ title refers to the fact that, at least in the music industry, this latest corporate strategy has been presented as anti-corporate “independence”; the “D.I.Y.” of those privileged enough to self-finance recording gets presented as a progressive form of workers’ control; the devolution of risk downward onto the shoulders of music workers is framed as a bold blow against corporate profit. In fact, outsourcing to non-union indie labels increases major corporate distributors profit.

Regarding live performances, a series of bad court and National Labor Relations Board decisions obstructed unionization by defining the bandleader as employer. The Taft-Hartley law’s “secondary boycott” prohibition outlaws strikes and boycotts against any company not legally designated as the “employer.” Organizing within the intimate confines of a band is a Labor organizer’s nightmare: and the resulting lack of Union contracts provides club-owners with cheap labor and increased profit.

Both club owners and the major music labels employed the same strategy; unable to outlaw labor rights per se, these owners used Taft-Hartley to restrict the exercise of those rights to their subcontractors. The above strategy, known among economists as “Post-Fordist Industrial Restructuring,” has been used in industries across the board, and is largely responsible for the decline in US private sector union membership from over 30% to under 6%. To get to the table, we need labor law reform that allows unions to target all corporations deriving profit from their members’ labor. Until then, we need a union that is willing to work not only within, but also around Taft Hartley’s debilitating straightjacket.

But neither of these are today’s biggest exploiters. During the last 22 years, an even more damaging—perhaps the most damaging, for indie musicians—corporate strategy has emerged in the digital domain, where Online Service Providers (OSPs) like Google and YouTube have used another restriction of legal rights to enable profiteering at the expense of musicians. The restriction in this case is found in Section 512 of 1998’s Digital Millennium Copyright Act, specifically the “safe harbor” clause. The “safe harbor” shields OSP’s from liability and prevents artists and songwriters from suing OSPs for damages caused by “third party” violation of their copyright. Third parties are anyone, other than the Online Service Provider themselves, who uploads or post links to infringing material without consent.

Contrary to popular opinion, for Google, YouTube, Facebook and other OSP’s, it is the ability to profit with impunity from the ad-based and data-mining exploitation of copyright-infringing files, and not the structure or technology of the internet itself, that has devalued our work. There is already a system to prevent online infringement. But this system requires artists to issue separate take-down notices for every infringing file (while the infringers are free to re-post minutes after they comply), creating an unwinnable game of whack-a-mole for artists.

What is needed are Standard Technical Measures (STMs) that do this work automatically. The tech industry has blocked every attempt to establish STMs. The result has been a huge “value gap” reflecting what Silicon Valley has gained at creators’ expense. The minute STM’s are established—with the stipulation that major corporate Online Service Providers/platforms that fail to adopt them lose their Safe Harbor protection—a fair market in recorded music will again become possible.

And not before.

Spotify’s starvation royalty rate ($0.00318 cents per stream, according to Trichordist’s 2018 Streaming Price Bible), and BandCamp’s small market share percentage (less than 2% over-all, according to International Federation of the Phonographic Industry) both reflect the same underlying and damning economic reality: we can’t sell what people can readily get for free. Appeals to voluntarily “support the bands” by using Bandcamp aren’t a substitute for a functioning economy. That Music Workers Alliance petition we delivered in a downpour called on Congress to overcome Silicon Valley’s obstructionism by providing the U.S. Copyright Office with regulatory authority to oversee the process of developing STMs.

With the COVID-19 live work shutdowns, the damages to music workers due to mass online infringement’s devaluation of our work have become all too tangible. While other industries were able to keep their workers employed by moving operations online, ours wasn’t: The toxic online business environment has crippled our ability to monetize. YouTube distributes 48% of all music consumed globally. It’s hard to compete with free. The level of injustice is yet deeper for Black music workers, the victims of a massive and ongoing literal appropriation of intellectual property rights by Silicon Valley mega-corporations whose top management is virtually all white or Asian-American, and whose workforce is less than 3% Black. In a June 3rd Facebook post, cellist/activist Marika Hughes identified Black musicians’ lack of access to “the forever money in the form of residuals and royalties; the income Black people have been historically robbed of” as a central cause of the disparities in generational wealth between Black and white American families. The defense of copyright online, and the extension of union contracts guaranteeing re-use, new use, and residual payments into so-called “urban contemporary,” EDM, jazz, R&B, rock, and other indie sector genre’s would create major sources of “forever money,” and do much to close that gap.

The corporate attacks and legislative constraints described above are only half of the obstacle we are facing. Unions ended child labor, established fair minimums, and won the 8-hour day against violent management opposition, before the right to strike was even legally established.

Some responsibility for our current predicament must be shared by our own failure to create unions with similar creativity, energy, intelligence, and courage. The AFM and most of its locals remain subject to political capture by its legacy sectors, and its leadership lacks the political will to make organizing the indie sector a priority. It’s impossible, for instance, to imagine any drive to organize Hip Hop or EDM artists: the union’s current bylaws don’t permit DJs as members. If the AFM isn’t able to meet those challenges, indie musicians and DJs will have to organize outside it, which doesn’t mean against or in competition with the union. One of the most successful models for new organizing to emerge in the last 20 years has involved workers centers in the restaurant and retail industries working together with legacy-sector unions.

The Music Workers Alliance is now in the process of establishing a Workers Center, a community organizing non-profit dedicated to the empowerment of indie musicians and DJs. Once established, we look forward to working, in coalition with the AFM wherever possible, to winning rights and benefits for indie musicians. I remain a member of the AFM’s Local 802. The genuine achievements of the AFM for its members must be respected. I urge others to stay in the union and to fight for the changes needed to make it a union that serves all its members’ needs.

Were I sitting across the table from a reasonable person with the power to give music workers what we need, I’d ask them first to help enable us to survive COVID-19 by lobbying Congress to extend the $600 weekly Federal Pandemic Unemployment Compensation (FPUC) benefit as long as COVID-19 work shutdowns persist. I’d ask them to get governors, mayors, and city councils to institute science-based approaches to safe reopening of venues rather than auction off the ability to earn a living to the industry with the most powerful lobbyist, to tax the rich to share the burden in this crisis, and to provide rent relief for all affected workers while the crisis lasts. I’d ask them to once and for all end online mass copyright infringement by getting Congress to provide the U.S. Copyright Office with regulatory authority to oversee the development of Standard Technical Measures, and to enact legislation to prevent the whack-a-mole situation that has made the current Digital Millennium Copyright Act “Notice and Takedown” process essentially irrelevant for rights holders. And I’d ask them to get Congress to repeal the Taft-Hartley Bill’s secondary boycott prohibition and the rest of the legal straitjackets that have prevented unions from boycotting and striking all corporations unfairly profiting from our labor.

That’s what I’d say if we were at the table. If and when we get appropriately organized, they’ll listen. Independent musicians need empowerment now. Or else we’re all just all stuck standing out in the street, in the driving rain.

Post Script: Google never acknowledged receipt of MWA’s petition. But after having received welcome corroboration from the U.S. Copyright Office’s “Report on the Efficiency of 17 U.S.C. 512…” released May 21, 2020 (which stated, “the operation of the section 512 safe harbor system today is unbalanced”), our petition was entered into the records of the Senate Judiciary Committee’s Subcommittee on Intellectual Property on June 2 and the House Judiciary Committee on September 30 and read with interest by their members. Not soon enough, but soon, Google et al. will be held accountable. And MWA will continue to fight for economic justice in the digital domain, and wherever else music workers are exploited.