WITH A MAJOR CLASS-ACTION LAWSUIT AGAINST SPOTIFY, DAVID LOWERY FIGHTS TO CHANGE THE MODERN MUSIC INDUSTRY—AND KEEP HIMSELF RELEVANT
On a Friday afternoon in early April, David Lowery, frontman for ’80s indie-rock oddballs Camper Van Beethoven and ’90s modern-rock hitmakers Cracker, takes the stage at the McNally Smith College of Music in St. Paul, Minn., to polite applause. He is dressed all in black, from his corduroy ivy cap down to his weathered cowboy boots, and sports an unofficial Inland Empire T-shirt—a salute to the Southern California region where he spent much of his youth and Camper Van Beethoven first got its start. “It’s not the most glamorous place to be from,” Lowery tells the assembled crowd, adding that Los Angeles residents talk about the Inland Empire “the way New Yorkers talk about New Jersey.” The shirt bears the motto “WE WILL KICK YOUR ASS.”
Today, Lowery isn’t performing any songs. Instead, he’s delivering a keynote address to about 150 students, faculty, and local community members at a modest, three-day conference and festival called the MN Music Summit. The meandering standup routine/PowerPoint presentation is titled “10 Heresies About the Modern Music Business,” even though some sections sound more like words to live by than heresies. For example, No. 8: “F— You Pay Me.”
At 55, Lowery has become better known for his musical activism than his recording history. He’s a sharp-tongued critic of how Silicon Valley makes money off musicians, and perhaps the most vocal and high-profile artist currently advocating for musicians’ rights. A music business professor at the University of Georgia since 2011, Lowery has very publicly feuded with the music-tech community, often via the blog he co-founded, the Trichordist, which champions an “ethical and sustainable internet.” That’s where he posted this piece of viral content, about a popular internet radio service: “My Song Got Played on Pandora 1 Million Times and All I Got Was $16.89, Less Than What I Make From a Single T-Shirt Sale!”
But he truly solidified his role as a gadfly to the tech sector in late December, when he took on the music streaming service Spotify. Spotify is a giant: It recently exceeded 100 million active users worldwide (30 million of whom, as of March, paid for monthly subscriptions) and reported 2015 revenue of $2.18 billion and a net loss of $194 million. The company spent $1.83 billion on royalties and distribution fees last year; it says it pays a track’s rights holders, on average, between $0.006 and $0.0084 per stream, a figure Lowery says is outdated. (He reports that his songs now earn at most $0.0048 per play, a sum he describes as “ridiculously low.”)
Lowery initiated a potential class-action copyright-infringement lawsuit against the company. The headline-grabbing federal suit, filed on his behalf by the law firm Michelman & Robinson, involves the rights to compositions, as opposed to recordings, and asserts that Spotify failed to secure the “mechanical rights” from songwriters or their music publishers that it needs to reproduce works by Lowery and an unspecified number of others. Spotify could potentially be liable for up to $150 million in royalties.
Spotify spokesman Jonathan Prince declined to comment for this story, but referred to an earlier statement in response to Lowery’s suit: “We are committed to paying songwriters and publishers every penny,” he had said. “Unfortunately, especially in the United States, the data necessary to confirm the appropriate rights holders is often missing, wrong or incomplete.”
(“I’m not aware of an ‘It’s too hard’ exception for the copyright law,” says David C. Lee, a partner at Michelman & Robinson.) Previously, Spotify had announced plans for “a comprehensive publishing administration system to solve this problem.” The company says it has set aside an unspecified amount of money to pay those rights holders it has yet to identify.
In March, Michelman & Robinson filed yet another potential class action, this time against streaming service Rhapsody (which has since rebranded itself as Napster, the music service it acquired in 2011), on behalf of Lowery and a trio of his current and former bandmates from Camper and Cracker. (Those three have been added as co-lead plaintiffs in Lowery’s original Spotify case.) Rhapsody declined to comment for this story.
Meanwhile, in January, singer-songwriter Melissa Ferrick initiated a similar potential class action against Spotify, seeking $200 million in damages. In May, a judge granted a motion for her case and Lowery’s to be combined and appointed Ferrick’s legal team interim class counsel.
Lowery stresses that his legal actions aren’t for his own financial gain. Otherwise, he says, he would be pursuing personal suits, not going the far less certain, possibly yearslong, class-action route. For him, the Spotify suit in particular represents the hope “that you really can stand up to the forces of Silicon Valley, venture capital, investment banks—that you can stand up to the powers that be and get some form of justice.”
Since Lowery took up his activism, “I’ve asked him periodically, ‘When are you gonna pass the baton on this?’ ” says his wife, Velena Vego, who books the venerable 40 Watt Club in Athens, Ga., in addition to managing both Camper and Cracker. “It was like, ‘Wow, how much time are you gonna take away from your sons or other things?’ ” (Lowery splits his time between Athens and Richmond, Va., where his ex-wife and their two teenage boys live.)
“It’s a passion,” Vego says, resigned. “You can’t stop him once he’s got a bone.” And with the Spotify suit, other “musicians are counting on him, so I just don’t see him giving it up any time soon.”
She adds: “But people are listening now.”
HOW MUCH MONEY WILL CAMPER VAN BEETHOVEN GET?
IF YOU WERE LISTENING TO CAMPER VAN BEETHOVEN THE WHOLE TIME YOU WERE READING THIS, YOU WOULD HAVE EARNED $0.0139 FOR THE BAND**
* Calculations based on average payout of $0.0072 per stream, derived from average payout per stream of $0.006 to $0.0084. Payout information courtesy Spotify. https://www.spotifyartists.com/spotify-explained/
** Calculations based on average Camper Van Beethoven song length of 174 seconds (using albums Telephone Free Landslide Victory, II & III, and Key Lime Pie as reference. Track lengths obtained via Discogs.com). Payout is generated using $0.0072 per stream.
“Every music convention I’ve been going to, everybody’s talking about data,” Lowery says, standing before the St. Paul audience. He taps his MacBook Air and on the large projection screen behind him appear stock photos of a marijuana leaf and a decent-size pile of cocaine. Below those images are an apparently mocked-up series of charts breaking down the demographics of who has listened to a particular musical act on Pandora.
“Compare the first South by Southwest that I went to in 1987, where all the executives were looking for drugs,” Lowery says, to today’s supersize, tech-heavy version of the Austin conference, which he attended just a few weeks prior: “Where everybody was talking about data.”
The audience laughs. “And I decided I’m never going to South by Southwest again.”
To critics, Lowery is a man stuck in the past. They see him as someone who hates the internet and is resistant to change, the living embodiment of that classic newspaper headline gag from The Simpsons: “Old Man Yells at Cloud.” In this case, though, it’s the iCloud.
“Well, yeah, he can be cranky sometimes,” says Camper co-founder Victor Krummenacher, a co-lead plaintiff in both of Lowery’s suits, “but I also feel like he has a point.”
The last time Lowery was the subject of so much public attention was summer 2012, after a then-20-year-old NPR intern named Emily White wrote on the All Songs Considered blog about how, although her iTunes library exceeded 11,000 tracks, she had only ever paid for 15 CDs’ worth of music. It was widely read and generated intense conversations about what the piracy-ravaged music industry had become. To many, including Lowery, it showed a generational rift over the perceived value of music.
He responded via the Trichordist in a lengthy open letter: “Congratulations, your generation is the first generation in history to rebel by unsticking it to the man and instead sticking it to the weirdo freak musicians!” Like White’s original post, the singer’s “Letter to Emily” went wildly viral. He was alternately hailed as a noble defender of struggling musicians and condemned as an out-of-touch scold.
One of his critics, Dave Allen—a founding member of post-punk band Gang of Four, who’s since gone on to work in artist relations for Apple Music—was especially harsh. He characterized Lowery as a “maudlin, mildly talented” musician and constant whiner whose “nostalgia runs so deep he wants everything to be the way it used to be.”
Lowery insists, “I’m not a Luddite,” and points out his geek bona fides: He has a B.A. in mathematics; he worked as a quant for a private-capital company and served on the advisory board for what would eventually become Groupon; he’s currently an adviser at an Athens tech incubator and an investor in the music-gear auction site Reverb.
“I’m not looking backwards to some perceived golden age of the music business,” Lowery says. “There wasn’t a golden age of the music business.” He concedes he had “all the benefits” of being on a major label in the booming ’90s—an era when fans would line up outside a Tower Records to purchase a brand-new $15 CD at midnight—but points out, “There were only a certain amount of seats in that lifeboat—what happens to everybody else?” (Short answer: day jobs, crushed dreams.)
Lowery says he has nothing against streaming. He just wants to make the new digital music business model fair for artists and songwriters, particularly those who publish their music themselves. “It’s not an angry crusade,” he says of his litigation. “It’s not like, ‘I’m gonna get these bastards.’ It’s like, ‘F—, nothing else is working.’ ” He is, however, fond of quoting the John Goodman character’s bowling-alley outburst in The Big Lebowski: “Am I the only one around here who gives a s— about the rules?”
“It’s like a political circuit,” Lowery says the night before his keynote address, during the convention’s kickoff party at the Summit Brewing Company. In fact, there is a real politician in the house this evening: St. Paul Mayor Chris Coleman, himself a hobbyist guitar player, is on hand to accept the Minnesota Music Champion award in the form of a handcrafted WWE-style championship belt.
Throughout the evening, well-wishers approach Lowery, who’s wearing a Merle Haggard T-shirt, emblazoned with the words “AMERICA LOVE IT OR LEAVE IT,” underneath his black corduroy, fleece-lined jacket. Many just want to thank him for coming out to talk music.
“Do you remember me from the ’80s?” jokes one woman, who will recount a Camper Van Beethoven show in Charlotte from back in the day. “I don’t remember me from the ’80s,” Lowery quips.
He’s actually got a pretty decent recollection of the time. It was in 1985 that Camper, then based in lefty Santa Cruz, Calif., released its playfully eclectic debut Telephone Free Landslide Victory, featuring its best-known song, the Dadaist Take the Skinheads Bowling. The band became college radio darlings—touring with R.E.M. early on—and Lowery an underground rock star. Camper put out a total of three independent-label albums and two for the major label Virgin Records before disbanding in 1990. The group reunited nearly a decade later.
In the meantime, Lowery relocated to Richmond. There he co-founded alt-roots band Cracker, also signed to Virgin. The band’s 1992 self-titled debut ultimately went gold, and its follow-up—1993’s Kerosene Hat, with its modern-rock radio hit Low—went platinum. He had achieved success in the old system with two separate bands, though things would change by early 2003, when Virgin dropped Cracker, citing declining sales. Cracker would subsequently deride the label in a song called Ain’t Gonna Suck Itself.
“We learned to be independent musicians again,” says Lowery of the period that followed. He was excited by the concept of “disintermediation,” whereby artists could interact with or sell products more directly to their audiences. “Everybody laughs at this now, but Myspace was very revolutionary—we could gather our fans all together,” he says. “Websites were incredibly important and valuable.” He looks back on it as a “heady” time.
The thrill was over by 2012. “There was what I would describe as a process of ‘re-intermediation’—where there was really no way for you to put your music out there without essentially engaging, giving away parts of your value to, Facebook, Apple, Google, YouTube,” Lowery says. “Suddenly these big, monolithic platforms were arising again. Spotify was just barely there at that point.”
With this in mind, Lowery delivered a talk titled “Meet the New Boss, Worse Than the Old Boss” at the SF MusicTech Summit in February 2012. His presentation, which argued that the new digital model didn’t pay artists enough—if it paid them at all—was quite tame in comparison with the 11,000-word expanded version he later posted on the Trichordist.
“Taking no risk and paying nothing to the content creators is built into the collective psyche of the Tech industry,” he writes. “They do not value content. They only see THEIR services as valuable. They are the Masters of the Universe. They bring all that is good. Content magically appears on their blessed networks.”
“Not only is the New Boss worse than the Old Boss,” he concludes. “The New Boss creeps me out.” In 2013, Lowery said that he was “banned” from a return speaking engagement at the SF MusicTech Summit because of his barbs against New Bosses such as Google. In a Trichordist post on the incident, he lashed out at Cash Music, a nonprofit that creates open source software, and the Future of Music Coalition, a national advocacy organization for musicians, calling both “at best quislings and at worst shills” for not speaking up for him.
“It kind of sucks when you’re getting yelled at by one of your musical heroes,” Future of Music Coalition Chief Executive Officer Casey Rae says of Lowery, whom he now considers a friend. “He’s a honey badger. He locks on to something, and once it’s in his jaws, he’s not going to let go. His version of marketing is making himself to be kind of an unassailable guy who can’t be bought, that doesn’t have the same compromised interests that anybody else in the music community has.” Lowery believes fear keeps most artists from being as upfront as he is. After all, they saw the widespread and merciless vilification of Lars Ulrich, the brash Metallica drummer, after his band sued the original version of Napster for copyright infringement in 2000.
“I can’t tell you how many very well-known band members are e-mailing [Lowery] saying, ‘I can’t get out there, but I appreciate you doing this for us,’ ” says Vego, his wife. “I wish he did have more people that could stand up next to him and be a face, instead of, ‘Oh man, I’m worried about what my record label’s gonna say.’ ”
Lowery says that his activism hasn’t hurt his bands at all, in terms of music and ticket sales. If anything, it’s “had the opposite effect”—not that he cares. “This notion about being popular and having the approval of the masses—or worrying about what people say—that is literally not in my DNA,” he says. “You could call me Lars all day long.”
Inevitably, a few of the attendees at the opening-night party bring up the Spotify lawsuit, and Lowery sticks to his talking points. As a class representative, he explains privately during a bit of downtime, “I have to be on better behavior than I’m inclined to be sometimes. I can’t be like”—and here he utters an inflammatory, and off-the-record, remark by way of example. “You know, that’s not proper,” he says.
Tony Mendoza, co-founder and board chairman of the MN Music Coalition, the nonprofit putting on the conference, is among those who approach the singer-songwriter to discuss Spotify. After Lowery’s cursory explanation of the suit, Mendoza asks, over the din of the crowd, “So what do you think about the NMPA settlement?”
Lowery doesn’t care for it much, to put it lightly. In mid-March, the National Music Publishers’ Association, the largest U.S. music publishing trade association, announced that Spotify had agreed to pay a reported $30 million in unpaid royalties for “pending and unmatched works”—songs for which the streaming service had not identified the owner or administrator. By opting in to the agreement, whose full terms have not been made public, claimants waived the right to join a potential class-action copyright-infringement suit such as Lowery’s. “The whole thing has the smell of a backroom deal that doesn’t fix the problems,” Lowery says.
The opt-in period ended on June 30, and the NMPA reported participation from members who make up 96 percent of the association’s market share. “Saying it’s ‘96 percent by market share’ is really misleading,” Lowery says. “If you’re counting by [NMPA member] songs’ popularity”—as opposed to membership as a whole—“they represent 96 percent.” Pointing such things out, he says, is “one of the reasons there’s a role for people like me—because even people who are on our side are full of s—.” NMPA President and CEO David Israelite agrees with Lowery’s central argument about Spotify but not his approach. “What Spotify did was wrong, but the best solution isn’t to try to sue them and put them out of business,” Israelite says. “The best solution is for them to pay a penalty, for them to clean up what they couldn’t match, for them to work with us together to fix this problem.” Israelite says such licensing issues are widespread and that the NMPA is in negotiations with all the interactive music streaming services—meaning those that allow users to select which tracks they hear—now operating in the U.S., including Apple Music, Tidal, Google Play, and Rhapsody.
At the party, Lowery and Mendoza discuss the NMPA settlement for a few minutes. “I think you’ve got Spotify shaking in their boots, honestly,” Mendoza says.
“Yeah,” Lowery replies with some hesitation. “Well, I think so …”
He knows the forces against him and has plans in place. Lowery vows that if the court denies his Spotify suit class-action status and it ends up turning into a personal lawsuit—and he prevails—he will devote his net proceeds to “what I’ve loosely termed ‘an artist rights center,’ ” something he imagines as akin to the Southern Poverty Law Center. He’s working toward a doctorate in higher education at the University of Georgia, with the idea of using the degree to help bring his would-be center to a college or university, perhaps UGA itself.
In fact, Lowery wants to pursue opening the center no matter what happens with his suits. As for who would be in charge: “You need somebody with my personality, that little bit of ‘Hey, f— you,’ ” he says. “So until I found someone who was aggressive as I was, I would wanna run it.”
He knows there are other people out there who could do it, and he concedes that his constant advocacy wears on his personal life. But still. When pressed on whether he could really hand the reins over to someone else, Lowery pauses for a moment, then sighs: “God, that would be so f—— hard.”
Editor: S.I. Rosenbaum
Design: Steph Davidson
Calculator: James Singleton