Watermarks Break My Heart Journalists hate them; labels love them. Why copyright protections aren't going away.

I had been looking forward to reviewing Depart From Me, the new album by Definitive Jux rapper Cage, since I discovered 2005's damn-near brilliant Hell's Winter. When the package arrived one month in advance of the street date, I set aside everything I was doing and with trembling fingers popped the promo CD of Depart From Me into the computer. And after listening to the first minute and a half of every track, I tossed the CD in the trash.

Why? Because Definitive Jux, in order to keep me from leaking the album, made the review copy nearly unlistenable by inserting promo drops--breaks in the music during which a voice says, "This is a promotional copy"--on every single track. A similar annoyance occurred a few months prior when Warner Bros. gave me access to a review stream that I could listen to only on a clunky, third-party, desktop media player that lacked controls for pause or rewind. In both cases, I was told by the artists' publicists that nothing could be done--the labels simply would not risk sending an unprotected album to a journalist.

In 2007, Douglas Wolk argued in Spin that "[i]t's no longer a question of if an album will appear online before its official release date, but rather when and how." Wolk also clarified the Janus-headed role journalists play as consumer advocates-who-leak, as well as the compromises labels were beginning to make in order to get advance press for an album: "Even though one industry source claims that 75 percent of leaks come from journalists, most artists rely on the boost they get from reviews, so they need to send out promotional copies." Wolk noted in his story that some "major labels" and "well-heeled independents with a high-profile release to protect" had started "'watermarking' advance copies" in order to stop journalists from leaking.

Watermarking was high-tech in 2007, the application to patent the technology having been filed in 2004 by two Microsoft employees and accepted in September 2007, just two months after Wolk's article came out. Since two years is forever and a day in both the technology and the music industries, I emailed Wolk to ask for his current thoughts on the kinds of copyright protections that frustrate reviewers.

"Watermarked CDs are no problem at all," Wolk wrote back, "as long as I can listen to something the way I'd listen to anything else. I won't review promo-dropped discs or things I can only listen to from a Web stream. (Or, for that matter, at a 'listening party.')"

But what if these were the only media through which a music writer could review an album prior to its release? I asked Wolk if being able to listen to a clean promo when- and wherever a music writer wants is a legitimate demand. Wolk's short answer: "No."

"Critics are not automatically entitled to clean, free advance copies of anything we want," he writes. "But neither are record labels automatically entitled to advance press. The bottom line is that if I can't have the same listening experience as somebody who goes out and buys a copy of a CD, I'm not going to write about it in my critic-as-consumer-guide capacity."

Jessica Hopper, a former PR rep, current freelance music writer, and the author of The Girls' Guide to Rocking, says some of the first watermarked indie promos she received were from the label Touch and Go, and that only her car's CD player could read them. Because she does "not drive around for more than about 15 minutes, ever," she subsequently stopped writing up artists who are on labels that used player-restricted watermarks.

Streams aren't much better in her opinion. In fact, she's listened to only one band using a stream: Sub Pop's No Age. "And that was because I love them," Hopper adds.

She's not vehemently opposed to reviewing promos that include drops with her name in them--and has received such promos from Rhymesayers, Definitive Jux, and Drag City--but finds them creepy and less enjoyable to listen to. And stories about angry labels sicking the RIAA on leaking journalists have led her to dispose of these promos by "scratch[ing] the play-surface on the ground until it'd be unplayable," to prevent someone from uploading the albums onto the web with her name attached.

Other music writers I spoke to, including several here at Washington City Paper, have similar feelings about the obstacles put in place by increasingly territorial record labels, and to a one, they all said the same thing: Barring a handful of artists they've loved forever, these writers don't do advance reviews if a promo has drops or is available only through a desktop media player.

While the above sample of critics is by no means definitive, Steve Martin of Nasty Little Man is convinced that labels with a hard-on for copyright technology are screwing themselves out of advance press.

"The big labels insist that [they] are not making it difficult to listen to these records," he says. "Writers however don't seem to agree. They don't seem to enjoy listening via shareware systems, [and] complain that the various watermarking/copy protecting technologies prevent the discs from playing on their players."

Martin claims to be neutral, but he can't resist criticizing the bigger labels, which he sees as overly focused on "weekly sales numbers" to the detriment of their artists' careers. The man knows what he's talking about: His PR firm counts among its clients Radiohead, which broke the mold by coupling a pay-what-you-can digital release of In Rainbows with a major-label CD release, and the Beastie Boys, who say they plan to release the second half of their forthcoming album, Hot Sauce Committee, in "[m]ore of a 2009 style"--which they've hinted might take the form of free downloads. Martin is also aware that copyright-protection technology, besides irritating journalists, isn't stopping them from leaking music. For instance, when I tell him that I found a torrent version of New Again while I was working my review (and which I was just barely able to keep myself from downloading), Martin writes back: "If you indeed found watermarked files on the torrents, it's yet another example of the finger-in-the-dike approach. The labels are holding on to an outmoded way of doing things as long as humanly possible until that dam crumbles for good."

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There's no telling whether or not more and more music writers will boycott copyright-protected promos, but as ever, the easy gets have more takers. Since there's no reason for music to be exempt from this, why would a label as small as Definitive Jux compromise a reviewer's listening experience to the extent that an album might end up without advance press? Music writers continue to overrate their powers of persuasion even as social media collectively usurps the privilege of gate-keeping--but has the impact of a good review become that negligible?

According to Definitive Jux General Manager Jesse Ferguson: Yes, actually.

"At this point there are so many voices out there reviewing music it's become a bit of a cacophony," Ferguson says. "I can't control what critics say about our records, I never have been able to. But I think that leaks that come from the press or any pre-release promo that can be avoided should be."

If Ferguson sounds a little abrasive, it's because he's been burned by journalists before. Aesop Rock's None Shall Pass and El-P's I'll Sleep When You're Dead--two of his label's most popular releases and the best Definitive Jux has to offer--were leaked way in advance by journalists, to the detriment of sales. In both cases, Definitive Jux was able to trace the leaks back to the offending publications using watermarked promos which included the journalists' names in the drops. And in both cases, Ferguson says, the excuses were pitiful.

"I'll Sleep When You're Dead was leaked by a writer whose practice it was to have his iTunes library shared on his music sharing library folder," Ferguson recalls. "He apologized profusely once it was out widely, but how many people's records had he freely shared without having to own up to it?"

And even though watermarks and drops irritate reviewers--and, at least in the above two cases, do little more than inspire half-assed excuses--Ferguson swears by them.

"The unique steps we take to protect our records do actually work," he says, "and when records don't leak, our label, and in turn our artists, sell more records, which allows us to continue to release quality recorded music."

But there's a tiny hole in Ferguson's logic, and it's one I know he's aware of after he admits that Definitive Jux is "not as diligent about personalized voice-over copies" when a writer requests a promo within weeks of the album's street date. My promo copy, for instance, was not personalized, and that means that had I leaked it, Definitive Jux would have been unable to track me down. I write Ferguson and ask him why, if the drops can't be traced back to the offending journalist, does his label bother to insert them?

Ferguson sticks to the company line in his reply: "We use promo drops up until the album comes out to try and protect sales. That way for as long as possible, the free bootleg version is still unlistenable."

Andy Kotowicz, Vice President of Sales & Marketing at Sub Pop, says his label isn't ready to give in to leaking journalists either, but thinks that watermarks are hardly the way to go.

"We haven’t done a watermark in at least a year and I sincerely hope we never use them again," Kotowicz says. "They have been utterly ineffective at performing the task that they are meant to perform."

Granted, Sub Pop is a bigger animal than Definitive Jux, with a significantly larger stable of artists and a near-mainstream audience. But like Definitive Jux--and unlike bigger labels--it can't simply eat the cost of a leak (assuming the leak occurs far enough away from the release date that it kills sales), and it seldom risks taking legal action against the journalists it catches giving away its music prior to the street date.

About a year ago, Sub Pop realized it needed a smarter method for stopping journalists from leaking their promos and dumped watermarks for password-protected streams, .zip files, and burned CDs. But the label's big change had nothing to with developing better security technology: Sub Pop simply slashed its list of promo recipients down to the ones that matter.

"[M]aking the circle smaller seems to have been sort of effective," Kotowicz says. "I can’t say definitively that we haven’t missed out on some opportunities, but with the glossy music monthlies drying up, we’re sending out fewer copies way in advance, and making the average lead-time much shorter as well."

I ask Kotowicz if tastemakers like Pitchfork, Paste, Spin, and Rolling Stone--all of which, he confirms, are on Sub Pop's promo list--get stuff in advance because they have strict in-house policies against leaking or because they're tastemakers.

"They do get advance music in one form or another because they are BOTH tastemakers AND because they have policies to prevent leaking," he writes back.

Kotowicz's answer reveals something important about the music industry that distinguishes it from all other media. Movie studios, for example seldom (if ever) restrict screenings to big-name publications in order to prevent a bootleg copy of the film from getting out: Because of the way we consume movies, theaters can simply confiscate cell-phone cameras at the door to the screening. But music reviewing is much more private and decentralized, the product more disseminable. That music labels would restrict press access to purported tastemakers when those very publications are slowly losing their grasp on the title could reflect a desperate, near-religious trust in the scope and reach of the higher echelons of traditional music journalism.

But it could also mean that labels see where the journalism industry is going as they hear what Ferguson calls the "cacophony" of the Web collective--and that the labels are hedging their bets with traditional journalists as the collective assumes the taste-making reins. If this is the case, perhaps the labels are starting to figure out what advertisers discovered this decade--that traditional journalism just can't deliver what it used to, and that, if played right, the hot mess that is the internet can be more friend than foe.