Ken Freedman, the general manager of New Jersey’s non-commercial, free-form radio station WFMU, is the lunch speaker today at the Berkman Center. He’s speaking about a very new project – the Free Music Archive – which will create a large archive of creative commons-licensed music which will be available for stream or download by individual listeners around the world.
WFMU is a very unusual radio station – it went on the air in 1958 as the radio station of Upsala College in East Orange, New Jersey, until the college went bankrupt in 1995. WFMU had embraced the web early on, building a website in 1993, and survived the demise of its parent institution, becoming an independent nonprofit – 501(c)(3) under US tax code – station, taking on the operating costs from the college. While its coverage area has been whittled down to about half it’s previous footprint (through FCC licensing of other stations on nearby frequencies), the listenerbase has grown online, and the station is now able to raise almost a million dollars a year in an annual membership drive.
WFMU’s site is massive, composed largely of playlists posted by DJs – the DJs aren’t required to post these online, but pressure from listeners has convinced most DJs to post this information creating “a giant bank of metadata” – Freedman points out that when you search for an obscure band on Google, there’s a decent chance your best match will be a WFMU playlist. The station has streamed online since 1997, and has tried a number of community experiments, including a message board which had “a good four years, followed by an abyssmal four years, and then we pulled the plug.” Now the site features a very popular blog which includes a large number of mp3 downloads authorized by the artists. WFMU has a huge library of mp3s – over 200,000 files – but they’re for internal use only, designed to make programming easier for DJs. DJs create a huge set of podcasts, some of which don’t appear on the air and exist solely in digital format.
Freedman tells us that he’s had the chance to negotiate with the RIAA and SoundExchange, the performance rights organization that negotiates online royalties on behalf of record labels. “It was an eye opening experience,” he says. “There’s not a lot of common ground,” between SoundExchange and independent radio station. SoundExchange, he tells us, sees zero promotional value from online streaming of audio… which makes very little sense as record labels send promotional copies of their recordings to online radio stations, suggesting that they see some value in having their material broadcast online. He believes that SoundExchange would like to see per song, per listener fees from broadcast radio as well as from online radio.
Some online radio stations organized a Day of Silence in 2002 to protest changes in the rate plan charged to webcasters. WFMU concluded that silencing these stations was exactly what the RIAA wanted, so they responded by trying to air as much licensed material as possible. They built up a database of licensed material by sending waivers to indie artists and record labels, asking them for permission to air their material without compensation via SoundExchange. Within a week, they received 400 waivers and only two refusals.
The success of this project inspired Freedman to start thinking about building an online library of licensed, cleared material which could be used by WFMU and other “curators”. In the settlement of the investigation of music industry payola by New York attorney general Elliot Spitzer, a fund was set up called the New York State Music Fund, designed to support music education and appreciation programs. WFMU received one of the first major grants from the fund and is using the money to start creating the archive, seeding it with high-quality multi-track recordings of live performances.
The archive will include these recordings, along with live sessions recorded at WFMU and other radio stations and from music festivals, as well as material that labels and artists choose to release to the archive. WFMU is also commissioning instrumentals, beat tracks and soundbed tracks for use by DJs in this freely-licensed medium. Materials will be available under Creative Commons licenses (probably non-commercial, possibly share-alike to allow for the creation of derivative material.) While the content can be accessed directly and downloaded, the “default method” for accessing it will be “curatorial” – DJs, or other editors, will create thematic or genre-based playlists and guide listeners through the collection .
The goal, ultimately, is for WFMU to be one of several partners curating the archive. Other curators could “buy in” by offering a substantial collection of licensed works to the archive. “There are only a few similar-minded radio stations, ” Freedman believes. He name-checks WWOZ in New Orleans, which has been digitizing and preserving music from that city, and KEXP in Seattle, which has a 95% success rate in getting artists to release songs for their daily podcast series. Each station would have a front-end to the collection, producing playlists that draw on the common backend.
One possible model to sustain the archive is a membership community. While unregistered users could listen to the music in the archive, a modest membership fee and registration might be required to participate in online discussions. He cites Metafilter – with the $5 registration fee and a week-long waiting period for an account – as a model to follow, but talks about using Slashcode or another system to moderate contributions.
The room is filled with open content and music activists, most of whom have questions about the project:
Q: Could paid membership in the archive be a problem given share-alike licenses on content?
A: We’re just trying to set up some sort of a hurdle to membership. It’s been really effective for Metafilter. This raises the issue: What does it mean to be noncommercial? We are a 501c3 – as a 501c3, we can make money as long as any money we make doesn’t enrich individuals. WFMU now has a $1m budget and several million in assets, but they can’t enrich him personally. If the Free Music Archive started putting text ads on the site, they would have to defray hosting costs – they couldn’t enrich him personally.
Q (Dan Gillmor): What do the lawyers think about what it means to be non-commmercial?
A: The IRS is pretty flexible as long the business doesn’t enrich the individual. He’d like to start the archive off without usage fees, but is open to the idea of selling text ads. Most critically, the site can’t be subservient to the radio station. “The [radio] staff think the blog is there to serve them. But blog readers think the blog is just there to for them to read. Now DJs are becoming resentful that some of the authors on the blog are non-DJs – the new archive will have enough distance from the station that we won’t have this problem. Last March, the station raised $930,000 in an annual fund drive – only $20,000 was raised from the blog. Radio listeners are used to giving $100 or more – blog readers give $5 at a time.
Q: WFMU will be curator #1 on the site. Will other curators be able to come in with content but share a common back-end?
A: We hope that archive.org will host files, but WFMU will host its own front end as long as we can handle it. Other organizations will be able to do the same.
Q: Have you decided what software to use for the archive?
A: We’re hoping that the software that the Participatory Culture Foundation is building could work, but we’re working under time pressure from our grant – we need to launch an archive with at least 50,000 files by June 2008. We might do something with MySQL and PHP – that’s what the current site runs on, but the author is very proprietary and won’t open his code, while we’d prefer to run the archive on open code. Clearly lots of folks are wrestling with this issue – MNET (a TV station in New York City) has been working on a platform for over six years, trying to let tv producers use a web-based asset management system and collaborate remotely on finishing documentaries.
Q (me): How is the recent copyright ruling board decision on pricing for streaming radio going to effect WFMU?
A: We can’t afford to go over the minimum price threshold. Stations that deliver fewer than 159,000 “aggregate tuning hours” get charged $500 per year. That’s roughly 230 simultaneous users 24/7, and most college or non-commercial stations are way below that threshhold. WFMU is slightly below that threshhold and we may have to cap our streams to remain below it. In the meantime, we’re trying to get more unlimited, licensed content so that we can do unlimited, uncapped streams – broadcasting from the archive would let us do that. WFMU already has a Jewish music stream that plays music from five labels, all of which have waived rights – we can broadcast that without a cap.
To really fix this situation, Congress is the only hope. “Any attempt to speak rationally to SoundExchange has failed – they are determined to throw out the baby with the bathwater as fast as they can.” They would like to see the world with five or six webcasting companies. This seems really irrational to the music and broadcasting community, but they’re interested in setting up a similar (pay per listener) situation for broadcast radio. The US model – a flat, statutory license is per station – is unique. In Europe, it’s much closer to a per song per listener model.
Q: Could you redraft your waivers to be more general and give access to the content to anyone who does streaming radio? And are you getting support from other broadcasters on this issue, like NPR?
A: We decided not to do the general waivers as WFMU – we’ve shared the waivers, but getting a general library of cleared material is a larger problem. And it’s much harder to ask a label to give up radio royalties altogether than it is to ask them to give them up just to our station.
We’ve had very little support from NPR. They have had a special, secret deal between the Corporation for Public Broadcasting and SoundExchange for webcasting. SoundExchange has webcasting agreements with with Sirius, XM, and Pandora – none of these are transparent.
Q: Have groups said why it makes sense for them to negotiate separately with SoundExchange? Is there a movement towards solidarity?
A: There’s no solidarity. because SoundExchange has the right to negotiate side deals at a much lower rate with any group. By cutting groups like NPR out of the coalition through side deals, there’s no unity, even though there’s possible solidarity between NPR, independent stations and religious broadcasters.