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by DJ Frosty

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As a music journalist, I tend to look at fan armies with only professional interest — what they mean for the industry and how I can make sure they won’t figure out where I live. Last week, however, I suddenly had to face the fact that I’m in one — and I have been for the last 35 years. And I realized that many creators might need to change the way they think about cultivating and keeping superfans.
I went to Stockholm last week to see Bruce Springsteen, one of my favorite artists, for what must be at least the 30th time. I stayed in a hotel close to the venue, which was full of people like me — by which I mean Springsteen fans of a certain age (ahem) who wanted to see the concert enough to travel from all over Northern Europe and, in some cases, the U.S. Many came with spouses or children, and some planned on seeing a few shows — or even a couple of weeks’ worth. One couple said that they were happy Springsteen now gives himself a couple of days off between shows, since it gave them more time for sightseeing during the vacations they organize around concerts.

These people don’t think of themselves as part of a fan army. They don’t have a nickname or collect different versions of the same CD. I don’t, either. In fact, I feel a bit sheepish saying that this concert was one of the highlights of my summer, or that I spent a few hundred dollars to go, but it is and I did, and it was totally worth it. After the show, about two dozen people gathered in the lobby after the show to talk highlights and trade war stories, and some of them gathered again the following night after cancelled flights left them stranded in Stockholm. I feel even more sheepish about how much I enjoyed that.

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Whatever. From a music business perspective, this is just what superfans do. One difference between his and most is that Springsteen built his audience the old-fashioned way — with unforgettable live shows that convinced fans to come back and bring friends (and, these days, kids). The people in my hotel are obviously the exception — I’m talking about a few dozen people in a venue that holds more than 50,000 — but at this point I think Springsteen concerts mostly draw serious fans. (Springsteen opened with “Seeds,” which he only ever released as a live performance on a 1986 box set, so I assume he thinks the same.) And although it’s hard to be sure, I think most of them were won over by his concerts.

These days, music executives focus less on live acts — how live are most pop performances anyway? — and more on hit singles. Fan armies are built online, usually around the shared experience of hoping a song will go to No. 1 or buying extra copies in order to boost it. But how long will that last? The music you love when you’re young tends to remain in your life, but going to concerts might have more appeal over time than trading gossip about chart position online. Cultivating an audience devoted enough to keep coming back year after year can be much harder — but it can also be more effective.

The problem is that this part of the business is hard to see in data. Industry executives often talk about how much superfans are worth in terms of the CDs or tchotchkes they buy, but it’s harder to measure the effect of fans who keep coming back over the course of years. I saw one Springsteen show this year and two last year, which doesn’t really move the needle. The 30-or-so shows I’ve seen would, of course, but those were over a period of 36 years — starting with, if you’re curious, the Tunnel of Love Tour in May 1988. (I was already enough of a fan to attend two of the five shows — and then I was really hooked.)

What keeps me coming back — and I think what keeps most fans coming back — is that Springsteen delivers shows that are both consistently great and fairly different. If he’s had an off night, I haven’t seen it. At the same time, he makes every tour different and varies the set list every night, with moments of genuine magic — in Stockholm he delivered a haunting “Racing in the Street” and pulled a kid up onstage to sing the chorus of “Waitin’ on a Sunny Day.” Others keep going back to hear rare favorites — seeing Springsteen play “Jole Blon” in September 2012 was a profound experience for me, even if most of my friends had absolutely no idea what I was talking about.

You could say a lot of these things about a lot of rock bands — there was a time when playing a different set every night was the rule instead of the exception. And it does seem to draw people in. Fans love a curveball of a cover, and some even appreciate the flubs — there’s so much more at stake without the artificial perfection that comes from a click track. Communities are built from appreciating, comparing and, yes, griping about difference performances. Just read the New Yorker story about Dead & Company to get the idea.

Like any true fan, I’m going to say Springsteen is different. More than any other current artist, he believes — and gets concertgoers to believe, at least for the time he’s onstage — that rock actually matters, that there’s more at stake onstage than entertainment, that this kind of music can actually sustain you. As I get older, with less time to drive down an empty highway for no reason at all, it gets harder to believe that. But I’d like to. Maybe in some way I need to — so much that I’ll be back next year and probably again the year after that.

For a little over a year, since the Fake Drake track bum rushed the music business, executives have been debating whether generative artificial intelligence is a threat or an opportunity. The answer is both — creators are already using AI tools and they already compete with AI music. But the future will be shaped by the lawsuits the major labels filed two weeks ago against Suno and Udio for copyright infringement for allegedly using the labels’ music to train their AI programs.  
Like most debates about technology, this one will be resolved in real time — Internet start-ups tend to believe that it’s easier to ask forgiveness than to get permission. Although neither Suno nor Udio has said that it trained its program on major label music, the label lawsuits point out that both companies have said that using copyrighted works in this manner would be “fair use,” a defense for otherwise infringing conduct. They’re not admitting they did it — just defending themselves in case they did. 

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Whether this qualifies as fair use is well over a million-dollar question, since statutory damages can reach $150,000 per work infringed. The stakes are even higher than that, though. If ingesting copyrighted works on a mass scale to train an AI is allowed under fair use, the music business could have a hard time limiting, controlling, or making money on this technology.  

If it’s not, the labels will gain at least some control over these companies, and perhaps the entire nascent sector. There are other ways to limit AI, from legislation to likeness rights, but only copyright law has the kind of statutory damages that offer real leverage.  

Although neither Suno nor Udio has issued a legal response, Suno CEO Mikey Shulman released a statement that said the labels had “reverted to their old lawyer-led playbook.” The obvious reference is Napster, since most people believe that in the late ‘90s the music business saw the future and decided to sue it.  

That’s not exactly what happened. The major labels knew that the future was digital — they lobbied for the 1995 Digital Performance Right in Sound Recordings Act, which ensured that streaming services had to pay to play recordings in the U.S., even though traditional radio stations don’t. They just didn’t want peer-to-peer services to distribute their content for nothing — or to have to negotiate with them while they were doing so. In July 2000, three months after the major labels sued Napster, leading executives sat down with the company to try to figure out a deal, but they couldn’t agree; the labels negotiated as though Napster needed a license and Napster negotiated as though it didn’t. In the end, after a decade of lawsuits and lost business, creators and rightsholders established their right to be paid for online distribution and the music sector began recovering. 

And here we are again: History isn’t repeating itself, but it seems to be rhyming. If the labels negotiated with Suno and Udio now, how much would those companies be willing to pay for rights they may or may not need? It’s easy to make fun of either side, but it’s hard to know how much to charge for rights, or pay for them, before you even know if you need them.  

These lawsuits aren’t about whether creators and rightsholders should embrace or avoid AI — it’s coming, for good and ill. The question, in modern terminology, is whether the embrace will be consensual, and under what terms. Most creators and rightsholders want to do business with AI companies, as long as that actually means business — negotiating deals in something that resembles a free market.

What they’re afraid of is having technology companies build empires on their work without paying to use it — especially to create a product that creates music that will compete with them. That depends on the outcome of these lawsuits. Because if you don’t have the right to say no, you can’t really get to a fair yes.  

A couple of weeks ago, at a culture conference organized by the German recorded music trade organization, I heard German Justice Minister Marco Buschmann put this as well as anyone I’ve ever heard. “The moment people have the opportunity to say ‘No’ and to enforce this ‘No,’ they gain a legal negotiating position,” he said in a speech. (Buschmann also makes electronic music, as it happens.) In the European Union, rightsholders can opt out of AI ingestion, which is far from ideal but better than nothing.  

What happens in the U.S. — which often shapes the global media business — might hinge on the results of these lawsuits. There are two dozen copyright lawsuits about AI, but these look to be among the most important. Some of the others are mired in jurisdictional maneuvering, while others simply aren’t as strong: a lawsuit filed by The New York Times could involve a different fair use determination if the ingested articles are used as sources but not to generate new work. These cases are straightforward, but they won’t move fast: It’s easy to imagine the issue going to the Supreme Court. 

Despite the high stakes — and what will almost certainly be a rap beef’s worth of sniping back and forth — determinations of fair use involve a considerable amount of nuance. Fair use makes it legal in some cases to excerpt or even use all of a copyrighted work without permission, usually for the purposes of commentary. (An iconic Supreme Court case involved 2 Live Crew’s parody of the Roy Orbison song “Oh, Pretty Woman.”) This is far from that, but Suno and Udio will presumably argue that their actions qualify as “transformative use” in the way the Google Books project did. Next week I’ll write about the arguments we can expect to hear, the decisions we could see, and what could happen while we wait for them.