Alan and Andy Berry, owners of Berry’s Music stores, saw their nine-month legal nightmare end June 22 in a plea bargain. What was initially 13 felony counts of copyright infringement, leveled by the Recording Industry Association of America, was finally reduced to a single misdemeanor (and a hefty fine). But the real punishment was meted out months ago: Alan Berry lost his livelihood, lost the business he loved and nurtured for 13 years, may yet lose his house. And the crime for which he’s paid this price? Selling DJ mix-CDs.

Alan Berry grew up on Indianapolis’ Eastside, graduating from Warren Central in 1987. After high school he spent a couple of years working at Karma and various mall record stores. In June 1990 he went into business with his older brother Andy, pooling resources to open a record store of their own, Berry’s Music, on East 10th Street. For the first three years, all profits went back into the store. The brothers grew the business while working pizza delivery and other off-hour jobs to stay alive.

At first the emphasis at Berry’s was on hard rock and heavy metal. They knew they needed to carve out a niche market for themselves and metal, which had been the brothers’ passion in high school, seemed like the natural direction to go. “But then,” Alan remembers, “we realized that wasn’t where the money was at. Kids kept coming in, asking for Ice Cube and Too Short. So I quickly changed the focus — because I want to make money.” The Berrys started carrying hip-hop during their first year and a half in business and it soon became the store’s primary focus. By the time they moved the operation to 11th and Arlington in 1993, Berry’s Music was gaining a reputation as the Eastside version of Rockin’ Billy’s.

The Berrys’ roots may have been in metal but their promotional strategies were closer to punk — “guerilla marketing,” Alan calls it: using any means at their disposal to gain an edge over the competition. They lobbied to bring Howard Stern’s controversial radio program to Indianapolis, then bought airtime on the show to run public campaigns against Wal-Mart and Bob and Tom. They started stocking T-shirts and “tobacco” products early on, later adding a piercing service. “We wanted to be the store that your mother didn’t want you to go to.”

One of the biggest edges Berry’s Music gained was from its practice of regularly breaking streetdate on new CD or DVD releases, a matter not of law but of industry policy. Big chain outlets like Best Buy receive co-op advertising money from the record industry in exchange for honoring the official release dates on major-label product. Berry’s Music, like most independent stores, received no such funds, so saw no advantage to waiting on release dates. It’s almost with pride that Alan Berry notes, “We’d break streetdate every week. To me, it’s giving the customer what they want. If they want it as early as possible and it’s not breaking any laws, do it. Why would I have any loyalty to the record labels when the benefit of maintaining streetdate was cooperative funds that we were not receiving? I felt my loyalty was to the customer, not to Warner Brothers.”

Mixtapes — a key route to stardom
Sometime in the late ’90s, Alan started hearing about something called mixtapes. A phenomenon with roots in the ’70s, mixtapes are cassettes (now CDs) put out by regional DJs: compilations of what they deem to be the hottest new tracks around. A typical mixtape might include remixes or mashups along with hits of the day. But sometime in the ’90s, there was a shift away from mixtapes emphasizing turntable skills to ones showcasing exclusives — guest freestyles by name rappers, as well as new tracks unavailable anywhere else. DJs became virtual talent scouts and mixtapes became the new urban radio, a means of hearing cutting-edge new music.

Fans depended on their favorite DJ to sift through the weeds, to showcase the hottest new joints — and major labels began to realize that here was a cheap and effective marketing tool, a way of testing and breaking new artists. Before long the majors were sending DJs new product in hopes of being included in their monthly mixes. Mixtapes became a key route to stardom for many hip-hop artists, including Fabolous, the LOX and, above all, 50 Cent, whose major-label debut entered the charts at No. 1 after the rapper starred on the mixtape scene for a good three years.

“Back then I didn’t know what they were really about,” Alan remembers, though it didn’t take much investigating to find out. “I got some of the local DJs’ names, JF I think was one of the first ones, Paul Bunyon ...” At first, Berry’s stocked only local mixes, buying them directly from the source. When they sold well enough to become a permanent fixture in the store, Alan started adding mixes by prominent national DJs as well. Mix-CDs soon made up about 5 percent of Berry’s’ total sales.

Knocks at the door
In 2002, with business booming, the brothers opened a second store on the Southside. By then, Andy Berry had become more of a silent partner, with Alan overseeing the stores’ day-to-day operations. By 2003, Berry’s Music was enjoying yearly sales of $1.7 million (up from $46,000 its first year). Then, on Sept. 23, came a knock at the store’s back door that would derail Alan Berry’s life. “I was at our warehouse and got a call from one of the stores saying, ‘Hey Alan, the police are here with an RIAA agent and they’re wanting to confiscate all the mixes.’ I’m like, ‘What are you talking about?’ I couldn’t believe it.”

Armed with search warrants, the officers grabbed all the mix-CDs from both stores, then headed to the Berrys’ warehouse. Though they had no search warrant for the warehouse, Alan, believing he had nothing to hide, let them look around there as well. “We didn’t have any duplicating equipment [for pirating CDs], if that’s what they were looking for. And as for the mixes, we never really questioned the legalities of them. We never did. Because, one, we were getting some of the mix-CDs through our regular vendors that we bought our quote-unquote ‘legit’ product from. The same place I would get the Interscope record from, I would get mix-CDs from, from national distributors. Two, the artists are on there endorsing the mixes. I mean, Eminem’s on the mix-CD saying, ‘Yo, this is Eminem. You’re listening to DJ Green Lantern.’ Then he drops three or four exclusive free-styles and he’s talking within the mix, about the mix itself, saying Lantern’s his man. You would kind of assume that Eminem’s fine with it.”

But arguing their case at the warehouse proved a waste of time and the police continued to gather up discs. It amounted to $10,000 worth of stock — a significant hit, but no arrests were made and Alan felt that if confiscating the mixes was the worst that happened, his store would survive. For about two months, it looked like that might be the case. Then came another knock at the back door. It was a Marion County sheriff, there to arrest Alan Berry on 13 felony counts of royalty theft and fraud. Alan was handcuffed, taken down to lockup, strip-searched, deloused, put in an orange jump suit — and finally released 12 hours later on $15,000 bond. Andy Berry, now living in Florida, went through the same ordeal once he flew back to Indy and turned himself in.

Still, it wasn’t the arrests per se that doomed Berry’s Music. According to Alan, it was the reckless media coverage they received. Channel 8 was first to report the story, broadcasting a straightforward account of the raid that even allowed Alan Berry to question the illegality of mixes. Soon after, the story received national attention in the Village Voice and on MTV.

Then, some weeks later, Fox 59’s evening news featured a special report on counterfeit CDs “that look and sound so close to legitimate discs, even music store owners can’t tell the difference.” Donald Finch, a local investigator working for the RIAA, held up a fake Beyonce CD (that indeed looked pretty real) and confirmed that a “truck full” of such CDs had been confiscated locally over the previous few months. The discs taken from Berry’s Music had included no counterfeits — and the segment never cited Berry’s (or any other store) by name — but, coming on the heels of the raid and the Channel 8 story, viewers could certainly be forgiven for assuming that’s who the Fox story was referring to. As a kicker, the report ended by casually noting that many of the places selling counterfeits are also associated with drugs and organized crime.

Following the actual arrests, The Indianapolis Star ran a story with a headline reading “BROTHERS ACCUSED OF SELLING BOOTLEGS” — even though the charges leveled against the Berrys had nothing to do with bootleg recordings. The words “bootleg” or “counterfeit” appear in the six-paragraph story four times; the words “mixtape” or “mix-CD” zero times.

The RIAA’s official Web site defines “bootleg” as “unauthorized recordings of live concerts or musical broadcasts,” i.e. all those Phish cassettes or Bob Dylan Live at Wherever discs everyone’s owned at one time or other. Berry’s sold none of these. The organization defines “counterfeits” as “unauthorized recordings of the prerecorded sound as well as the unauthorized duplication of original artwork, label, trademark and packaging” — in other words, illegally manufactured exact duplicates of official CD releases (the subject of Channel 59’s report), which, again, Berry’s was never accused of selling. But by casually throwing these terms around and making no attempt to differentiate between mix-CDs and regular album CDs, The Star and Fox stories left the impression that Berry’s Music was in the habit of selling cheap knockoffs.

Local media may not have known the difference between counterfeits and mixtapes, but savvy Berry’s customers certainly did. According to Alan, “People started coming in the store and asking, ‘Is this CD all right?’ ‘Is this one real?’ ‘Why can’t I buy this for $5? It’s a bootleg, right?’” The Star story ran on Dec. 5. Berry’s’ sales that month were down $50,000 from their usual holiday numbers. They never recovered. “At that point we had to make a decision: Do we try to fight this, stay in business while losing money and possibly having to go bankrupt at some point? Or do we sell everything to have enough money to pay for our defense? It was already thousands of dollars to buy a legal case, especially against the city of Indianapolis, which has endless amounts of money to take you down. And our names had already been put out there, that we were bootleggers. Then the stories started circulating. Like a friend of mine would say, ‘Yeah my brother heard that you guys were running drugs or had big organized crime links.’ I’d never been arrested in my life. We’d done nothing but run a clean business.”

So in February, the brothers decided to sell the buildings, liquidate all the stock and Berry’s Music was done.

Some baffling questions
Surrounding the arrests are a number of baffling questions, starting with: Why Berry’s? They were certainly not the only record store in town selling mix-CDs. Yet they were the only one the RIAA chose to raid and bring charges against. Their reputation as a “rebel store” — specifically being one of the last vendors in town that stocked smoking paraphernalia — may have made local authorities more willing to listen and cooperate once the RIAA came calling. But it doesn’t explain why the RIAA chose Berry’s alone to make an example of.

Alan Berry says he doesn’t know the answer, that there’s no way of knowing for sure, but he’s certainly heard a lot of theories. Among them: that the fact that Berry’s had two locations made them a bigger target among indies; or that their being a white-owned business made the bust safer, more politically correct. Perhaps the most credible theory has to do with the store’s longstanding policy of breaking streetdate on new releases — a practice that Alan admits made them a lot of enemies. “Best Buy and other stores just hated us for that.

Because we would get, say, the new 50 Cent album on Friday and we’d sell 300 or 400 copies before the Tuesday streetdate, before they’d even get it.” So it’s at least conceivable that one or more local record or video stores complaining about Berry’s put them on the RIAA’s radar, made them seem like a suitable target.

Another good question: Why wasn’t Berry’s sent a warning letter, an order to cease and desist, which is usually standard RIAA procedure? (Calls to the RIAA to see why Berry’s was denied this courtesy were not returned.) Had they received such a warning, ordering them to stop selling mixes, Alan says, “We would have quit — I mean, it wouldn’t have been a dead issue with me. I would have tried to find out why this is. But, yeah, we would have quit.”

But perhaps the biggest question of all: Why prosecute someone for selling mixes in the first place? The RIAA’s Web site, attempting to define various forms of copyright infringement, puts mixtapes in the category of “pirate recordings,” i.e. not counterfeit versions of whole albums, but individual tracks duplicated without permission. While technically this may be true, it’s hard to see who is being hurt by the practice. Artists view inclusion on DJ compilations as a boon to their careers, a stepping stone to stardom. And for years now, the record industry (on whose behalf the RIAA is supposedly working) has embraced mixtapes/CDs as easy and effective promotional tools, actively participating in their production and relying heavily on feedback from mixes to help focus marketing strategies for new artists.

For an idea of how completely the majors have taken mix-CDs to heart, consider one of Indianapolis’ top DJs, Paul Bunyon. In recent years, he’s received numerous awards from the record industry, including gold and platinum records, for the part his mixtapes play in selling mega-numbers of CDs by artists like Ludacris and Lil Jon. For the industry to acknowledge the value of mixtapes to this extent, then turn around and bring charges against stores for selling them, seems disingenuous at best. “It’s mind numbing,” Alan says, “because it seems so blatantly dipping out of both sides. If the record companies really have a problem with mix-CDs, why wouldn’t they go after the source? They have signed artists, DJs that put out both regular albums and monthly street mixes. Why wouldn’t they contact them and say, ‘Hey why are you guys putting that stuff out?’”

But then, the recording industry has a long history of not getting it, of treating their customers like adversaries, of showing little understanding of music or the way fans use it.

Back in the 1950s, when the RIAA was formed, its primary duty was to certify and hand out gold records. By the ’70s, it had become more of a combination watch dog/attack dog for the industry. When it wasn’t loudly overstating the negative effects of bootleg concert recordings, the RIAA was busy lobbying Congress for any number of absurd laws, such as outlawing home taping or making it illegal to sell used LPs.

"If the record companies really have a problem with mix-CDs, why wouldn’t they go after the source?" Alan Berry

The home-taping issue seems especially relevant to the current mixtape situation. When the introduction of cassette tapes in the ’70s happened to coincide with a general constricting of rock-radio programming, taping one’s favorite music for a friend suddenly became one of the few ways new music got heard — which, it would be logical to assume, helped generate record sales. The RIAA refused to see it that way, preferring the more simplistic taped-LP-equals-lost-sale paradigm. Ironically, this time around the record industry actually does seem to recognize the positive value of mix-CDs — and the RIAA is cracking down on them anyway.

It’s hard not to view the move, like the industry’s recent infatuation with suing teen-aged downloaders, as a sign of sheer desperation, a grasping at straws. The record industry is tanking these days like never before, but seems to prefer meaningless moneygrabs over actually trying to figure out how it landed in such dire straits. That, of course, would involve some serious soul-searching and perhaps assigning significant blame to many of its own practices (blatant overpricing of CDs, increasingly conservative signing policies, ignoring or battling rather than embracing or working with online filesharing).

Accepting the plea agreement
Six of the felony counts against Berry’s Music were dropped in April when the defense rightly argued that the theft-of-royalty issues involved were federal matters, outside of local jurisdiction. Of the remaining charges, six were for fraud, for violating a little-known law that makes it illegal to sell CDs which don’t have the actual name and address of the manufacturer printed on the packaging. (The 13th count was “corrupt business influence,” leveled automatically for accruing six other charges.) Of course, nowhere near all CDs contain that information, which means that every store carrying CDs (from Target on down) is guilty of this obscure “crime.” The Berrys’ defense council, Norman Reed, argued that the selective application of this law effectively meant that prosecutors were using it to go after Berry’s for copyright violation (again, a federal issue) without calling it that. The presiding judge didn’t agree, the charges stood and the decision was finally made to accept the plea agreement.

“I really wanted to fight the charges,” Alan says, but it simply became too big a roll of the dice. The possibility of jail time, of being saddled for life with six felony convictions, not to mention the monumental cost of pursing a jury trial, finally convinced the Berrys to admit guilt in exchange for ending the matter with a single misdemeanor conviction.

This summer will see the release of Mixtapes Inc., a feature documentary on mixtape culture: part history of mixes, part chronicle of the vital role they’ve come to play in today’s music scene. In the midst of the celebration, the film stops to tell the story of the raid on Berry’s Music, a reminder that even the most exuberant pop moments have their dark side.

Alan has spent the last several months applying for managerial positions at video stores and gas stations. It’s the longest he’s been out of work since he was 16. Before the charges were reduced, he often had to explain to potential employers why he had seven or more felonies pending against him. With the plea bargain, he’s hopeful the case is finally behind him, though he realizes there’s always a chance the RIAA and FBI could still come after him on federal charges. If that happens, selling his house would suddenly become a very real consideration.

For Alan, thinking back can be painful. “We were two entrepreneurs that did good, stayed in Indianapolis, took $2,000, had a little bit of a dream, to have our own business. A year ago we had 20-some employees, great employees that had been with us for years. We generated taxes for the city of Indianapolis, year after year. And we did everything legitimate. We were a corporation — lawyers, accountants, the whole nine yards. You can’t find somebody we owed money to that wouldn’t speak highly of us. And we were continuing to grow. We had profit-sharing with employees, we’d just built up this piercing business. All that work that had been put in place was paying for itself, it was working. And it wasn’t just the money, it was the purpose, it was what we’d worked all along for, to be recognized as an entity. And for it to all be wiped out — it’s just hard. It’s really hard.



“And it’s purely over mix-CDs, which is just asinine.”

Happy ending
A story this bleak certainly deserves a happy ending and Alan Berry may yet write one himself. After months of fruitless job search, he now has plans to open another record store on the city’s far Eastside. Naptown Music will look very much like a streamlined version of Alan’s old store: the emphasis squarely on hip-hop and rap, but minus the waterpipes and piercing business.

And lest you think the events of the past year have tamed the rebel in him, Alan wants it known that his new store will have DJ mixes for sale from day one. “I’m just going to make sure the name and address of the manufacturer is on the CD before I sell it. Then there can be no dispute between the city and me.” And as for the possibility of federal charges? “That would be a fight between the RIAA and myself and I’m ready for it. There are so many holes in the RIAA’s argument. What happened to me was wrong and everyone involved in the rap industry knows it was wrong. They’ve already taken everything, so what else do I have to lose?”