NOT NEUTRAL: Anger, Activism Roil Indie Music Before Net Neutrality Vote

Dec 8, 2017

Here’s a possible scene from the near future.

You think that renegade folk singer Robbie Fulks is tremendous, and you’d like to know about other artists on his label, Bloodshot Records. You visit BloodshotRecords.com and before the page loads, a splash screen appears. It’s an advertisement for the couch you lingered in front of last weekend at a local store.

You think, “That’s weird,” but you click the X and proceed to Bloodshot’s web site, a little bit annoyed. The next two visitors to the URL see (totally different) unwelcome advertisements and leave the site. “Bloodshot sucks,” one says to herself.

The ad in this speculative but plausible future is not Bloodshot’s fault. The company didn’t ask for it or get paid for it. It’s the doing of your Internet Service Provider - the company (generally a monopoly or duopoly, like AT&T and Comcast in Nashville) that owns and operates the lines that connect your home or office to the internet.

Your ISP (of the future) doesn’t place pop-up ads in front of every site, just the ones that haven’t agreed to be part of the Premium Music Tier, for an annual fee. It’s not like you can’t find Bloodshot’s web site. It’s just that thanks to new federal policy, your ISP can stratify the web and monetize access to sites previously available to all.

This is part of a set of bleak predictions being made throughout the independent music business if the FCC votes as expected next week (Dec. 14) to end the current regulatory system, which is based on a principle that’s become known as Net Neutrality. Currently your ISP is required to treat all data flowing through its network impartially.

Scenarios like the one above have to come with caveats, because nobody really knows how it would play out if ISPs are allowed to create tiers of access or channel high bandwidth content from Netflix or Hulu to oft-cited “fast lanes” for money, leaving startups in “slow lanes.” But the music industry, especially the independent sector with its heavy reliance on the internet to promote and sell content, is predicting nothing good.

INDIES IN RED ALERT

I’ve chosen Bloodshot Records as my example, because the Chicago-based label is in a state of red alert over the issue, urging its tens of thousands of social media followers to protest the move, which is being spearheaded by President Donald Trump’s choice for FCC Commissioner Ajit Pai.

“This is really scary for small companies like us,” said Mike Smith, director of media and marketing for Bloodshot. “Our biggest account is our website. We sell vinyl, CDs and merchandise. That’s where a lot of our fans get information on new music and tour dates. It is a community that we have worked really hard to put together over the past couple of decades.” He says the label fears that the telecommunications giants will place toll booths between fans and the site.

“Our first amendment rights and our ability to innovate and create and communicate with others should not be in the hands of a few people who are acting on some very narrow interests,” label co-owner and co-founder Rob Miller said.

This is an issue full of technical and legal arcana but most advocates boil it down to this: ISPs are classified as “common carriers” of information, implying a sort of utility-like status, and requiring that all data flowing to and from users be treated equally. To many people’s surprise, there was no formal federal requirements that the web be neutral before 2015. A so-called Open Internet Order put in place that year by the Obama Administration is the policy likely to be over-ruled by the FCC next week. FCC Commissioner Pai told NPR in May that the current rules are overly-restrictive: “You could be prohibiting a number of pro-competitive business arrangements. And secondly ... you could end up reducing investments.”

Vanderbilt University Intellectual Property Program Director and law professor Daniel J. Gervais does not concur. “Do you think it’s more likely that these major players will try to do the right thing or try to make more money?” Gervais said. “We’ve had an open internet. Music users and music providers were either providing content or using content and the platforms were neutral.” But after next week’s changes are fully in effect, the platforms can play favorites for profit. “An example I give my students is: If you let the electric utility into the refrigerator business, and they said if you buy our refrigerator you’ll get power 24 hours a day. You can buy any other refrigerator of course, but then you’ll only get power 12 hours a day.”

In the music space, he says, that would probably mean ISPs will do a national corporate deal with a certain music streaming service and create a series of incentives to channel you the consumer toward it rather than a boutique site or indie offering. (Mobile broadband providers already do this to a point.)

Indeed the entire independent music sector is deeply concerned about the end of NN as they’ve known it. A recent editorial by digital music guru Jesse Von Doom was positively doomsaying: “If the web loses net neutrality, independent musicians will lose their careers. It isn’t f*****ng complicated.” And that’s just its title.

A petition letter being circulated by the non-profit artist advocacy groups the Future of Music Coalition and CASH Music lays out its view of the stakes: The end of Net Neutrality “would allow big cable and wireless companies to create new pay-to-play fast lanes, disadvantaging those who cannot pay for preferential treatment, and replicating the industry’s past problems with payola. Allowing broadband providers to control this once-open platform shifts leverage away from individual artists, creators, and small businesses, and interferes with freedom of speech and expression.”

MAYBE IT’LL BE OKAY?

It’s about impossible to find anyone from the independent music community who would vote with the three Republican FCC members next week, but there is one long-time indie music activist who’s writing that her colleagues are over-reacting and that there’s a promising future with a new regulatory regime.

She’s composer and band leader Maria Schneider, who argued in a lengthy editorial recently that the ultimate beneficiary of Net Neutrality today is Google, which she says soaks up gargantuan amounts bandwidth while brutalizing indie musicians. They do that by allowing search for pirated music and underpaying on its gigantic YouTube platform. She says Google has stoked “hysteria” over the issue in a “scam” effort to preserve the status quo.

To get bureaucratic with it for a second, she’s arguing that the Federal Trade Commission (FTC) is better equipped to police bad business practices than the Federal Communications Commission (FCC), which was invented ages ago to supervise the analog airwaves. “The FCC has never (effectively policed the internet), it’s not in their DNA,” she wrote. “And their ability to police is even very limited, unlike the FTC. The power of the people is best reflected through the FTC, not the FCC.”

 

It must be added however, that many parties, including one current FTC commissioner, have argued that the FTC is poorly poised, with staff, expertise or jurisdiction to regulate the internet. At least one lawsuit currently underway might tie the FTC's hands even further than they are are now.

 

Citing Google is a great reminder that while the 2015 Order is meant to preserve equal access, the net as most people actually use it is FAR from neutral. Google skews search results based on its demographic profile of you. It favors YouTube over other music platforms. Meanwhile, Facebook uses opaque algorithms to channel content to some people and not others while charging bands and brands to reach their fan bases. That’s legal in these “walled gardens” where consumers accept the terms of service.

Of course, today you can choose to avoid those internet mega malls and connect in many ways to the URL based web. The fear is over the telecom industry making your home internet connection a bigger, badder “walled garden” with take it or leave it terms of service.

FCC Chairman Pai argues the traditional Republican case that competition and the desire to serve consumers will prevent exploitive teiring or throttling of the internet. That would be a lot more reassuring if there was robust competition, but half of US households have only two choices, while more than 30% have one or none offering 10 mb/second broadband service.

What's unnerving about next week's vote to Net Neutrality advocates is its sense of irreversibility. Bloodshot's Rob Miller again: “It’s a bell we will have a very hard time un-ringing if it proves to be disastrous.”