The Recording Industry Association of America’s shrill crusade to end music piracy is making in-roads in Congress. But is the industry’s war of lawsuits and intimidation destined to become a quagmire? #

Despite Wired magazine’s report that CD and album sales were up 10% in the first three months of 2004, and in the face of mounting evidence to the contrary, the recording industry continues to call file sharing the biggest extant threat to its existence. The Recording Industry Association of America (RIAA) makes war on its customers and pushes for legislation that would make swappers into jailbirds. And, like the wars in Iraq and in Vietnam, it’s hard to see a way out that’s going to be anything but bloody and demoralizing for everyone involved. #

On March 31, 2004, CNET News reported that a House sub-committee has approved a bill that would make sharing copyrighted files a criminal offense. The Piracy Deterrence and Education Act (PDEA) - #

”[...] the result of intense lobbying from large copyright holders over the past six months-has emerged as a kind of grab-bag that combines other proposals introduced in the past but not approved. One section that first surfaced last year punishes an Internet user who makes available $1,000 in copyrighted materials with prison terms of up to three years and fines of up to $250,000. If the PDEA became law, prosecutors would not have to prove that $1,000 in copyrighted materials were downloaded—they would need only to show that those files had been publicly accessible in a shared folder.” #

In other words, if you owned a computer that was found to contain approximately 65 CDs worth of copyrighted music in a shared folder—whether you put it there or not and regardless of whether the music was actually downloaded by anyone—you could go to prison for three years. #

According to the Washington State Adult Sentencing Manual for 2003. here are some other things you could do to buy yourself a trey in the Big House for your first offense: Assault of a Child, Controlled Substance Homicide, Hit and Run resulting in death, Homicide by Watercraft/Vehicular Homicide by being Under the Influence of Intoxicating Liquor or any Drug, Malicious Placement of an Explosive, Robbery in the First Degree, or Sexual Exploitation. #

On the other hand, Arson, Delivering Methamphetamines, Manslaughter, Vehicular Homicide by operating a vehicle in a reckless manner, Burglary in the First Degree, Child Molestation in the Second Degree, dealing in child pornography, Drive-by Shooting, Unlawful Possession of a Firearm, Use of a Machine Gun in Commission of a Felony, Intimidating a Judge/Juror/Witness, Third Degree Rape of a Child, Extortion, Second Degree Kidnapping, Third Degree Rape, Sexually Violating Human Remains, Counterfeiting, Threats to Bomb—each of these offenses carry mandatory sentences of 27 months or less in the State of Washington. #

Of course, this is just a partial list, but you can see my point. If the PDEA were enacted in its current form, the punishment for file sharing would be greater than the punishments for necrophilia or molesting a child. Heck, by my count you could steal a firearm (14 months), commit sexual misconduct with a minor (12 months), print your own money (9 months), and forge a prescription for codeine (2 months) and you’d only be in prison a month longer than a file swapper. #

Or, you could kill someone with your car or boat while under the influence and receive a sentence equal to the proposed sentence for making 65 CDs worth of music available for downloading on your computer. #

Aside from putting the kibosh on KaZaA, the PDEA would create a huge new category of criminals. How huge? According to the bill’s authors, “the most popular peer-to-peer file trading software programs have been downloaded by computer users over 200,000,000 times. At any one time there are over 3,000,000 users simultaneously using just one of these services. Each month, on average, over 2,300,000,000 digital-media files are transferred among users of peer-to-peer systems.” Holy crap. Think of that – 3,000,000 potential new criminal cases to bring against the users of just one P2P service! Looks like now’s the time to start investing in prison construction companies and FBI futures. #

I’m fond of the saying that goes “Just because a million people do a stupid thing, it doesn’t mean it’s not a stupid thing.” Yet as lobbyists for the recording industry and representatives in the House continue to hammer out laws for extreme protection of copyrights, millions of users currently engaging in file sharing will have to make a choice: pay the vig to the RIAA’s musical extortion racket or face jail time and stiff fines. #

I’m safe. I haven’t shared files for some time now. I admit it: I have used Napster in the past (the original, mind you, not the namesake). I also used AudioGalaxy, iMesh, and Morpheus. I downloaded music, and I made my shared folder available to other users of those programs. I did it not because I wanted to fill up my hard drive with free music, though that was certainly nice. No, I used file sharing services because they offered me a way to discover and research artists that I could not find as easily or at all through traditional means. I found I could no longer turn on a radio and hear music that appealed to me, and I had been burned more than once by buying an album based on the one song I knew about only to find that the rest of the album was completely different. So the choice offered by P2P programs was a vast improvement to my ability to make informed decisions about music buying. #

More than that, P2P offered a way to research artists whose work didn’t always show up in a record store, and to – yes, I admit – avoid spending thousands of dollars building a personal library of music that I was only interested in for the historical perspective it offered. Did that hurt the artists whose music I downloaded? I would argue that it didn’t, mainly because I wouldn’t have bought their albums in the first place just on spec. On the contrary, many artists were directly helped by my P2P browsing because I did end up buying their albums based on what I heard. For once, I was excited about discovering new music. #

But then along came the RIAA with their campaign of tyranny, waving the flag of artists rights, crying financial hardship, and suing music consumers for doing what music consumers have always done – sharing the music of their favorite artists with like-minded fans. So I stopped. I stopped sharing, I stopped buying, I just got out of the game entirely. And you know what? I don’t really miss it. I’d rather listen to my current collection of CDs and tapes in an endless loop than pay one more dime into a system that rapes artists, sues consumers, and generally stifles creative expression. #

Look, I’ll be the first to admit that there are some problems with the file sharing model. For instance, sticking a piece of music on your hard drive when you haven’t paid for a copy of that piece of music is, well, probably not cool. (Sorry to equivocate, but I can imagine a society that actually encouraged that behavior to the economic benefit of all, so I can’t bring myself to say that it’s just flat out wrong.) I don’t really have a need to own music I haven’t paid for. I’m an artist myself, and I get the economics and ethics of this problem on a very deep, personal level. However, as a consumer, what I want is to find and experience music free of the linear, controlled output of the radio station. I don’t want someone else telling me what I should listen to. I want to be able to experience music in the same way that the Internet has taught me to experience words and images – at my whim, at a moment’s notice, and with some anonymity. P2P let me, in essence, program my own radio station based on whatever I was interested in at the moment, the way the Internet lets me program my own news and entertainment experience. Ideally, I want to be able to browse and select from the vast catalog of recorded music, listening to as much or as little as I want, with some way to compensate the artists fairly for what I consume. #

This is not what the recording industry wants for me, however. The recording industry wants to maintain its exclusive control over the channels of production and distribution of popular artists. The record companies want to maintain their position as the gatekeepers to musical culture, both for artists and consumers. The recording industry wants to continue to pay artists pennies and half-pennies on the dollar for their creations while reaping maximum profits for itself. It wants to maintain control of the media through which we consume music – e.g. CDs, albums, tapes. The industry wants to be able to keep certain artists out of the game by denying them contracts. The RIAA wants to maintain control, because control to them is about dollars. #

The RIAA website lays out the industry’s case. Music piracy hurts consumers, music pirates, and honest retailers, as well as record companies and the creative artists themselves. According to the site, “Eighty-five percent of recordings released don’t even generate enough revenue to cover their costs. Record companies depend heavily on the profitable fifteen percent of recordings to subsidize the less profitable types of music, to cover the costs of developing new artists, and to keep their businesses operational. The thieves often don’t focus on the eighty-five percent; they go straight to the top and steal the gold.” Presumably, the file sharers, then, can have the dreck from the bottom 85; just don’t steal the good stuff. #

The RIAA site goes on to say, ” Finally, and perhaps most importantly, the creative artists lose [because of piracy]. Musicians, singers, songwriters and producers don’t get the royalties and fees they’ve earned. Virtually all artists (95%) depend on these fees to make a living.” Indeed. Yet industry record contracts are notoriously onerous, as Nirvana’s producer Steve Albini outlines in vivid detail in this essay posted at Negativland.com. #

Albini describes the typical experience of a band producing material that would fit in the record industry’s bottom 85% of recordings. After laying out a balance sheet that shows just where the money goes, Albini concludes, “The band is now 1/4 of the way through its contract, has made the music industry more than 3 million dollars richer, but is in the hole $14,000 on royalties. The band members have each earned about 1/3 as much as they would working at a 7-11, but they got to ride in a tour bus for a month.” I challenge you to read Albini’s full article and then tell me that the RIAA is really worried about how much money the artists might lose to file sharing. #

By the way, I love this quote at the bottom of the RIAA’s anti-piracy page. “As recording artist “Tool” noted, “Basically, it’s about music—if you didn’t create it, why should you exploit it?” Tool, of course, was talking about fans. I’m sure the recording industry didn’t intend the irony. #

Look, I’m not against the record companies making money. I can even see their point that it’s probably better for almost everyone if there’s a healthy industry investing in R&D, discovering artists and consolidating the costs of distribution and delivery of product. But the industry’s knee-jerk reaction to online file sharing has been so convulsive that I’m afraid they’re missing a grand opportunity to make the production and consumption of music better and more profitable for everyone. #

Here’s the thing: according to a recent study (PDF), it seems that file sharing statistically has zero effect on music consumption. Another study even suggests that people who use the Internet buy more CDs. And this article suggests that publishing work under less-restrictive licenses hasn’t hurt the authors who’ve tried it. And this author, like me, has stopped buying CDs in protest. #

And what has been the RIAA’s response? Well, their website contains no response to these studies and lists no evidence of their own to support their fervent pursuit of legal protection. On its site, at least, the RIAA only admits that calculating the cost of file sharing is “difficult.” #

It seems to me that the RIAA is missing a golden moment to use the new technology to benefit artists, producers and consumers. Indeed, the industry already quietly uses certain services which piggyback on P2P software to measure consumer interest in current music offerings. By fully and openly embracing file sharing, the industry could profit handsomely. #

What if record companies offered their entire catalogs of music online on their own servers? By charging reasonable access fees, the industry could make a low-cost music library available to everyone, a cultural contribution which would rival the creation of the great libraries of the world. By reducing prices, the industry could drive sales ever higher, while realizing greater profit through lower manufacturing and distribution costs. The RIAA has access to a brand new method of promotion and distribution that they didn’t have to spend one dime to manufacture, yet they are killing the Golden Goose. Record companies are willing to leave a gift of immense magnitude on the table in order to maintain a few more years of life as they know it. #

And a few more years is likely all they’ll have if they can’t learn to change with the times. Countless other industries have met a similar fate during periods of technological revolution, and this revolution will be even faster and more sweeping than ever before. With tens of millions of users in this country searching for new ways to experience music, P2P as we know it will go the way of the Dodo and some new method of sharing music will spring to the forefront, making the current fuss irrelevant. #

In fact one such method with the potential to give the music consumer greater power is currently under development. It’s a service that could offer highly detailed song information, including whether the distribution company for a song is a member of the RIAA. With better access to information, perhaps people will actively choose to intentionally withhold money from the recording industry in a much more effective way than they currently do, adding injury to insult by routing their dollars to more friendly organizations. #

The RIAA has also been dealt a series of legal setbacks, which should raise a red flag in the organization that maybe they’re on the wrong side of this issue. A Canadian judge, in a case involving the RIAA’s sister organization in that country, denied a motion to reveal the names of alleged file swappers, noting that the existence of P2P programs is no different than putting a copy machine in the middle of a library of copyrighted material. And just today the US Second Circuit Court of Appeals ruled that fair use applies even to material that has originally been obtained illegally. #

The struggle for control, the fight to maintain an old system of power, is one that the recording industry simply cannot win. Prohibitions have never worked. Suing your customers and creating a criminal class out of your biggest pool of consumers can only breed more virulent forms of protest. So great is the desire for free choice and free access—ie. free as in freedom, not free as in beer—that the people will not give it up. The only question is how many casualties we’ll see before the bloody war is over. #

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Tuesday, April 20th, 2004 @ 5:04 pm Freedom Matters
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