Imagine a ruthlessly efficient army of robots running wild through the nation’s record stores, removing every bit of major label product from the shelves, from Britney to Bob Dylan – but leaving behind CDs from independent labels.
Since March, that unlikely scenario has taken place, more or less, on the free but legally precarious online music bazaar that is Napster.
A court injunction stemming from the major labels’ copyright infringement suit against Napster has forced it to block access to copyrighted songs – but labels have the burden of naming the songs in question.
And many small and mid-size indie labels have so far chosen not to shoulder that particular burden, leaving Napster chock-full of their music. Want the entire catalogs of Pavement and Sleater-Kinney, or early work by Nirvana or Guided by Voices? It’s all still available, even as the oeuvres of Christina Aguilera, Eminem and Metallica get harder and harder to find.
Some indie label executives say that even if they wanted to, a lack of money and manpower would prevent them from submitting lists of their copyrights to Napster. The court injunction requires labels not only to submit artist names and song titles, but also to list the specific file names used for those songs on Napster – a time-consuming and expensive process, the major labels claim.
The majors have paid a consulting firm “tens of thousands” of dollars to find such file names, and have spent at least 2,000 hours of their employees’ time compiling song lists, according to court documents.
“We have a two-person team – me as the new media director and then the webmaster,” said Josh Ayala of Seattle’s Sub Pop Records, whose 500-album catalog includes classics by Soundgarden and Nirvana. “For us to go and compile the song list [is too difficult] – our energies are better spent elsewhere. Especially since [Napster] might increase our exposure.”
Many labels share the hope that their music’s availability on Napster might put money in the pockets of artists by encouraging users to go out and buy what they hear. Only the most popular indie artists – those who already have a significant fanbase – stand to lose sales because of Napster, some executives argued.
“For most indie labels, giving people a chance to hear the music at all is one of the biggest challenges,” said Molly Newman, general manager of Lookout! Records (as well as the drummer in riot grrrl pioneers Bratmobile). “The idea that people are sort of helping us with that [on Napster] is interesting.”
But the Lookout! Records catalog, which includes albums by Green Day, the Donnas and Operation Ivy, is not available on Napster, due to the label’s deal with the paid download site EMusic. Because Napster is a direct threat to the site’s business of selling MP3s, EMusic submitted its own screening lists, which include music from the numerous indies with whom it has deals.
Some larger indies, which tend to function much like mini majors, shooting for mass audiences rather than the smaller niches of other indies, have also chosen to submit screening lists of their own.
Bob Frank, president of Koch Entertainment, said that his company bypassed any manpower issues by focusing on their top titles, which include CDs from Stabbing Westward, KRS-One and the Kinks. “It was very easy – I just had one person go through one hundred of our biggest titles – they were all there,” he said.
Even some medium-sized, high-cool-quotient labels haven’t ruled out joining the screening game.
“We have not, in fact, given Napster a list of songs to block – but that doesn’t mean that we won’t do so at some point in the future,” Matador Records general manager Patrick Amory said in an email interview. “The reason is that we haven’t determined the extent to which Napster helps or hurts CD sales. Right now, it’s clearly a toss-up.”
Both the Recording Industry Association of America – which represents the major labels – and Napster declined to comment for this story.