Category: Culture

Is Congress Protecting Big Radio and Forgetting Musicians—Again?

Cars and music are so symbiotic that many contemporary vehicles could be mistaken for high-tech sound systems that also happen to take us places. I remember when popular music was only available on AM radio stations, and we’d listen to Steve Miller or Wings or the Jackson 5 playing through tiny, sibilant speakers mounted in the center of the dashboard. Those days are LONG gone, of course, and although AM radio is a relic as a music platform, musical artists might want to tune into the legislative progress of the AM Radio in Every Vehicle Act because it just might leave them hitchhiking on a lonely highway. Again.

Introduced in May by Senator Edward Markey, along with an identical bill in the House sponsored by Representative Josh Gottheimer, the AM Radio legislation was presumably drafted at the request of the major broadcasters seeking to extend the lifespan of terrestrial radio in a market increasingly dominated by digital options. Specifically, the bills are a response to auto manufacturers who have discontinued, or plan to discontinue, production of new vehicle sound systems capable of receiving AM signals. Likewise, makers of electric vehicles (EVs) have shunned AM because the powertrains cause electromagnetic interference at those frequencies.

More broadly, Autoweek, in November 2022, stated, “Auto companies consider deep-sixing radio for the same reason they ditched the CD player—it costs money and takes up space and resources on the valuable digital dashboard.” While some automakers testified in hearings that Congress should not dictate their product decisions in a changing market, others have since agreed to keep AM radio for now. Admittedly, it does seem as though forcing auto manufacturers to carry the AM signal in all cars in 2023 is a bit like requiring computers to still come with floppy drives.

Meanwhile, it is not hard to imagine how today’s AM Radio mandate, if passed, could serve as a precedent for an FM requirement in the future. And this would be acutely relevant to musical artists because it would extend the lifespan of terrestrial music broadcast, for which performers receive no royalties.

Section 106(6) of the Copyright Act protects the right to publicly perform sound recordings by digital transmission only, and recording artists have been trying for decades to amend the law to include terrestrial radio, arguing that they have long deserved a share of ad revenue earned by stations playing their music. Every time the issue has come before Congress, lawmakers have sided with the broadcasters, but in June 2021, the American Music Fairness Act (AMFA) came closer to gaining approval than the broadcasters might have expected. Reps. Ted Deutch and Darrell Issa stood on Capitol Hill among a group of performing artists, including Dionne Warwick and Sam Moore, to announce AMFA, and as Rep. Issa told reporters that day, the longstanding rule of “not one penny” is a bad faith arrangement that needs to be made right.

The United States is unique among major markets for its failure to pay royalties to musical artists for traditional (terrestrial) radio play, and this despite billions in ad revenue that simply would not exist without the music. Additionally, because U.S. radio does not pay royalties to any artists, American performers are typically excluded from royalty opportunities in foreign markets as well as at home. Thus, it could feel like an all too familiar gut punch if Congress were to swiftly pass AM Radio in Every Vehicle without passing the American Music Fairness Act (AMFA) at the same time.  

Although terrestrial radio may be shrinking—slowly crossfading to digital platforms—there is clearly enough terrestrial broadcast that iHeart, Cumulus, et al. are willing to fight the passage of AMFA to avoid paying musical artists a fraction of their billions in annual ad revenue. And as if it were not obvious that the local radio station is as rare today as the local newspaper, NAB does not hesitate to play the small-station victim card in opposition to Music Fairness. In a December 2022 statement thanking House committee members for voting against AMFA, NAB writes:

The American Music Fairness Act would mandate a new performance royalty on free, local radio stations that would jeopardize local jobs, prevent new artists from breaking into the recording business and harm the hundreds of millions of Americans who rely on local radio.

Of course, NAB omits the fact that AMFA establishes fees as low as $10/year for truly small operators, just as they omit the fact that, for instance, over 800 “small” stations in the U.S. are owned by one mega-corporation called iHeart. As for “preventing new artists from breaking in,” that’s a specious claim. Music is the only reason anyone tunes into certain radio stations, and if a station fails to play what someone wants to hear, the station will lose the listener not the artist. Because in case National Association of Broadcasters missed the memo, music discovery for the two youngest generations happens on a whole bunch of platforms that ain’t radio. 

In a September 7 statement, NAB praised the 150 House cosponsors of the AM Radio bill, stating, “The incredible bipartisan support the AM Radio for Every Vehicle Act has garnered in just a short time is a testament to the integral role AM broadcasting plays in informing, entertaining and connecting Americans across the country.” Perhaps. But frankly, the bills offer so much political cover—from playing a role in the Emergency Alert System to allegedly protecting conservative talk shows—that it’s possible few Americans will care whether Congress may be handing a gift to Big Radio.

But if AM Radio in Every Vehicle does become law, it will be hard to ignore the faint aroma of protectionism for an industry that needs no protection. Meanwhile, the musical artists, including background performers you’ve heard but never heard of, could use a little support from their representatives and finally receive a fair share of revenue from the market they made possible in the first place. If Congress is determined to suddenly mandate more terrestrial radio in vehicles, then it should also decide to finally protect the musicians who are often the only reason we enjoy the ride.  

Photo by: CelsoDiniz

Opportunity Costs (and with AI it may cost a bunch)

Lately, one reads a lot of statements with the preamble “Artificial intelligence presents opportunities and challenges…” But is this the right way to frame the conversation? Because if we’re talking about creative professionals and their industries, it is probably more accurate to say that generative AI presents clear threats and some opportunities. Although we are trying to predict future outcomes, and many expectations about AI (good or bad) may not come to pass, if generative AI is an existential threat to potentially millions of creative professionals while offering opportunities for a few, then it is wrong to begin the discussion as if opportunity and challenge are balanced forces.

Take, for example, the tentative agreement reached between the Writers Guild of America (WGA) and the motion picture producers, which includes the following provisions regarding the use of artificial intelligence:

  • AI can’t write or rewrite literary material, and AI-generated material will not be considered source material under the MBA, meaning that AI-generated material can’t be used to undermine a writer’s credit or separated rights.
  • A writer can choose to use AI when performing writing services, if the company consents and provided that the writer follows applicable company policies, but the company can’t require the writer to use AI software (e.g., ChatGPT) when performing writing services.
  • The Company must disclose to the writer if any materials given to the writer have been generated by AI or incorporate AI-generated material.
  • The WGA reserves the right to assert that exploitation of writers’ material to train AI is prohibited by MBA or other law.

These conditions prove the point in that they primarily seek to mitigate the threat of AI while opening a narrow and conditional window for the opportunity to use AI. Safeguards like these are necessary because it can be assumed that producers and show runners will be tempted by the prospect of paying fewer writers to “collaborate” with generative AI to produce scripts. But even if that approach were to prove effective (and there are reasons to think it would not), a writers’ room of, say, two instead of ten is not necessarily an opportunity. And perhaps not even for the show runners for very long.

Thinking solely about the U.S. economy, those laid-off writers would represent eight middle-class jobs lost—eight people who would curtail, if not cut off, their entertainment expenditures while they take the “opportunity” to ply their skills in other fields that may also be shedding jobs due to AI. If AI were to reduce the workforce in the entertainment industry alone, it would suck but could potentially fall within the principle of creative destruction. But if AI decimates work across multiple sectors at the same time, then products, including TV shows and movies, will lose customers, thereby nullifying those short-term savings gained by laying off those eight writers.

Meanwhile Creative Work Would Start to Suck

Beyond considering whether generative AI is an opportunity in cold, economic terms, it is hard to imagine outcomes that do not either diminish the cultural value of creative expression itself or trigger a rebellion against AI-generated material and dash the ambitions of the tech developers. In this regard, the “democratization of creativity” is a woefully ignorant goal as well as a dishonest talking point.

The promise that generative AI will “democratize creativity” should be read in the same light as Big Tech’s promise to “democratize information,” which has proven disastrous for democracy. Just as searching the web for “information” does not make the individual a journalist, instructing a generative AI to render ideas into expression does not make the individual an artist. And just like we continue to founder in a sea of disinformation, there is no broad, social value in “democratized” art any more than there is a market for children’s drawings tacked to a million refrigerators. If everyone is an artist then nobody is, and the value of creative expression diminishes accordingly.

That the creative process can be reduced to an algorithm which can learn how to write, draw, paint, etc. cannot be wholly denied when generative AIs are already doing these things and will presumably get better at doing them. However, the expectation that generative AI can or should displace artists may be the apotheosis of the TechBros’ enduring cynicism about the value of individual creators. In the trenches of the “copyright war,” creative professionals have been accused of being self-important, greedy, rent-seeking, whiners unwilling to get real jobs. And now that Big Tech is releasing tools that promise to obviate the need for creators, the newest hashtag claims that professional artists enjoy a #CreativityPrivilege that will finally be disrupted. In this context, generative AI can be seen as tech’s nuclear strike in the copyright war to prove once and for all that “original expression” is an illusion and, therefore, that any rights associated with original expression are a mythical construct that must be abandoned.

This impliedly jealous relationship with artists is an extension of the problem that the tech-utopian, anti-copyright crowd has never quite understood what artists do or why they do it. For instance, artistic output is not solely the result of interest plus training. Many great artists never receive formal training, and many need to escape formal training to find their own voices. Every artist will eventually, if not continually, go through a process of learning and unlearning various “rules” to make the craft their own. It may be a cliché to think of the artist as suffering or broken, but it is certain that the artist is sensitive to the world in a way that she is moved to respond through expression. And these are just some of the unpredictable human qualities that no computer can emulate with the math of probability outcomes.

Although it is plausibly argued that a creative-minded individual might have a disability which AI can help overcome, citing this hypothetical to justify the “democratization” narrative comes with a few caveats including:  1) enabling the few does not justify displacing the many; 2) if AI devastates the professional, creative ecosystem, the newly enabled artist can only be a hobbyist among millions of other hobbyists; and 3) if anyone believes the billion-dollar investments in generative AI were made with the intent to help someone with cerebral palsy become a painter, I’m calling billion-dollar bullshit. That may be a positive effect, but it is not the purpose of these machines.

Could the Models Simply Fall Down?

If generative AIs were to displace enough professional artists, it is possible that entropy will demand that the models exhaust their capacity for new outputs—let alone outputs that are of any interest or value. If we remove, say, one million working artists from the equation over the next few years, what will continue to feed the training models? Is the “sum of all human output” as of today sufficient to enable a generative AI to produce infinite, relevant expressions indefinitely? Maybe. But not necessarily.

Because artists are people who respond to the world through expression, timeliness and context matter a great deal. There are many reasons–from aesthetics to subject matter–why theater of the 19th century or television programs of the 1980s or ad campaigns of the 1960s are anachronistic to a contemporary audience. Yes, certain works endure or become freshly relevant as remakes because human experience is, in part, cyclical. But it is the artist’s sensitivity to the contemporary world that makes those connections, and the process of synthesizing that into creative expression is often instinctual as much as it is intellectual.

Yes, artists recycle and build upon prior works, but the relevance of a new expression at a given time and place requires a connection with audience that, again, is not merely the result of a probability outcome. This anticipates the likelihood that a lot of AI-generated work will be good enough but not necessarily good—a concern that directly affects the market for commercial art where many creators make a living.

For example, the stock music market for commercial use is built on a network of composers with the skills to produce a variety of tracks based on familiar and, often popular, music. If generative AI can adequately produce similar tracks by cutting out the human composer, the market for many composers is in peril. But again, if AI were to kill off or dramatically reduce new, human composition, it is conceivable that the “composition machine” might eventually fizzle out as it tries to burn the same fuel over and over.

No doubt, artificial intelligence will seed new opportunities, though I maintain that these are in fields other than the production of creative work. If the digital revolution in the creative market has taught us anything, it is that these technologies are generally an opportunity for owners of the tech at a tremendous cost to professional creators. Without the right safeguards, AI could exacerbate this trend in ways that will cost everyone.

Photo by: robcaven

Court Demolishes Texas Book “Rating” Law

In the 1980s, the Parents Music Resource Center (PMRC), led by Tipper Gore and several other wives of Washington insiders,[1] sought to compel record labels to place stickers on albums warning consumers that the songs within contained “explicit lyrics.” Songwriters, including Frank Zappa, John Denver, and Dee Snider testified in Senate hearings to oppose the label initiative on First Amendment grounds, but in the end, the RIAA agreed to voluntary use of the labels. Predictably, the result was a lot of ridicule of the now defunct PMRC, and the warning labels mostly served to make the albums more attractive to listeners.

Today’s self-appointed defenders of children against “dangerous” cultural material are more aggressive and mean-spirited than the PMRC and, it appears, more incompetent. Both the tenor and the incompetence were recently highlighted in a 59-page opinion handed down by the District Court for the Western District of Texas, eviscerating a law, unironically called READER,[2] that would have required book vendors to engage in a complexly incoherent rating scheme.

The complaint, filed by Book People, Blue Willow Book Shop, American Booksellers Association, Association of American Publishers, Authors Guild, and Comic Book Legal Defense Fund, alleged that, if enforced, the Texas law would violate the First and Fourteenth Amendments. Plaintiffs won a summary judgment on all questions of law, and the state is enjoined from enforcing READER as of the September 18 decision. In sum, Judge Allan D. Albright, a Trump appointee, stated, “READER’s requirements for vendors are so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”

That is a sober and sobering assessment of the provisions, which appear to have been designed not to reasonably assess books for age appropriateness in school settings, but to ban the sale of certain books by erecting a thicket of compliance too dense and jagged to navigate. Either that, or the law was pure theater and never meant to be enforced because it is so unwieldy. Judge Albright’s opinion is rich with pull-quotes criticizing a law that would have burdened vendors with extraordinary expense (in the millions of dollars) to analyze their catalogs according to undefined terms and methodologies…

The lack of any blueprint for the Plaintiffs to follow creates a blunt reality that under this scheme it is guaranteed that different book distributors and sellers will arrive at different assessments with respect to hundreds if not thousands of books.

Plus, the inevitably broad range of interpretations and applications of READER would be further exacerbated by the authority of the Texas Education Agency (TEA) to overrule a vendor’s rating without any clear guidance or process for appeal…

There is precious little if any language in the statute to ensure that any decision made by the TEA with respect to the rating of any book will be any more ‘accurate’ (whatever that means) allowing for the enormous possibility if not probability that it will be entirely arbitrary and capricious (at best). In other words, vendors must decide between either accepting the state administrative agency substituted speech as their own or being effectively blacklisted.

Specifically, if READER were to be enforced, book vendors would have been required to rate both their current catalogs and “books in active use” according to new state standards for “sexually explicit” and “sexually relevant” material. Given the current climate flush with politicians who routinely conflate sexual identity with sexual conduct, it takes little imagination to guess at the Texas legislature’s intent with a vague category called “sexually relevant.”

For instance, how might a vendor be expected to rate my friend J. J. Austrian’s book about two earthworms getting married when there is no sex in the story at all? Although Worm Loves Worm may be read as allegorical support for same-sex marriage, does that subjective reading make the book “sexually relevant” in some administrator’s mind? J. J. said during our podcast interview that most kids don’t even pick up on a “gay marriage” metaphor—earthworms are hermaphrodites after all—which suggests that adults who have banned the book are likely poor readers of both the story and the intended audience. Now, imagine being a vendor and trying to rate hundreds or thousands of titles in context to the “community standards” of all the disparate communities across the State of Texas. “It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas—or any of the more than 1,200 incorporated municipalities across Texas,” the opinion states.

There are too many moving parts in this judgment to discuss in one post, but I think the bottom line is that laws like READER aren’t about protecting children, or even about notifying parents about content, as the PMRC intended. While any state has a right and authority to erect a system for vetting materials purchased by its schools, sloppy, overbroad, Catch-22 laws like READER, especially in the current climate, are arguably about little more than hating gay and trans people.

I would challenge anyone to find young children’s literature that contains “sexually explicit” material, as defined by law[3] or common sense, let alone find the mythical Anais Nin picture book in a school library. On the other hand, if “sexually explicit” or “sexually relevant” are terms that Texas lawmakers intended to encompass stories in which a character has two dads, or stories about young people struggling with gender identity, those terms are as illiterate as they are constitutionally unworkable.

For as long as I’ve been politically conscious, “conservative” Americans have claimed to oppose the nanny state and to value individual effort. So, maybe parents who don’t want their children reading certain books can stop asking the state to do their parenting for them, read the damn books themselves, and make the individual decisions they deem necessary. Because there is a world of difference between a personal choice to restrict access to a book for one’s own child and demanding that a book disappear from the shelves for all children. Fortunately, the latter can rarely be achieved without violating the Constitution.

[1] Also Susan Baker, Pam Howar, and Sally Nevius.

[2] Restricting Explicit and Adult-Designated Educational Resources Act

[3] “The Miller test [for sexually explicit material] requires the following elements: ‘(a) whether the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’”

Photo by: shutter2u