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At the risk of sounding like (ahem) a broken record, but can't we all--music producers and music consumers--just get along? (For the benefit of our younger readers who are not familiar with vinyl records, the joke there is that when badly scratched, they would play the same few bars of music over and over again. OK, get it?) Once more I look at what is going on in the music world, and once more I
am disgusted. With everybody. This is a case study in self-centered greed
running amok. In the highlight, or lowlight, of the many recent developments, the Recording Industry Association of America (www.riaa.com), the industry's trade association, announced this week that it filed suits in federal courts across the country charging the targeted defendants with violating copyright law though online piracy. According to published reports, 261 people are being sued, and the industry vows that thousands more suits will be filed. "Nobody likes playing the heavy and having to resort to litigation," Cary Sherman, RIAA's president said in a statement released to the press. "But when your product is being regularly stolen, there comes a time when you have to take appropriate action. We simply cannot allow online piracy to continue destroying the livelihoods of artists, musicians, songwriters, retailers and everyone in the music industry." In an earlier press release, RIAA said "shipments of music products to retail outlets declined nearly 10 percent in the first half of 2003, representing a nine percent drop in dollar value compared with the first six months of 2002... The RIAA attributed the decrease, in large part, to music piracy on peer- to-peer networks and illegal CD copying." No mention there, you will note, that perhaps the recession might be cutting into business as well. At the same time RIAA is offering an "amnesty" to music users, which it calls "Clean Slate." The terms are spelled out in a downloadable .pdf. Basically, the proposal says that if RIAA isn't investigating you now, they won't if you promise to stop downloading music illegally and destroy your stockpile of previously ill-gotten tunes. Critics of Clean Slate warn that its provisions are not binding on anyone other than RIAA, meaning that if you fess up, it is possible that your Clean Slate agreement could be used as evidence by a record label or artist that wants to sue you. On the other side, the people behind the peer-to-peer sharing networks are being equally self-absorbed. Michael Weiss, who distributes the Morpheus Internet file-swapping
software, insists in an interview with The Boston Globe that he has no idea
what people do with it. "As a software developer, why do I have to go
monitor what my users do?" Pressed on the point, he is a bit more candid,
"I'm in litigation." RIAA is trying to snuff out Morpheus's parent company, StreamCast Networks Inc., as well as another file-swapping firm, Grokster Ltd., trying to kill their music file sharing software as they did with Napster, the originator of the genre. Napster overtly acknowledged being a music distribution system, so its successors have adopted the legal strategy that they merely provide a file sharing service and have no idea what files are being swapped. So far the networks have prevailed in court, which led RIAA to move against individual users. As I have written here before, I am a strong believer in intellectual property rights. The term "Internet piracy" always has struck me as much too romantic; "electronic shoplifting" is what is taking place. I find it especially appalling that so many people think they are entitled to get unlimited music for free. In the movie "Blue Thunder," a crusty police captain (is there any other kind?) chews out a rookie cop, "You are expected to be stupid, son, but don't abuse the privilege." None of us is so pure as to claim that we never have copied music. I'll fess up--I actually copied music off of vinyl records onto cassette tapes once upon a time. I suppose at some point I may even have copied a track or two from a friend's CD. Everybody does do it. And it is illegal. But it is a far distance from that to running amok on the Internet, pulling down thousands of dollars worth of copyrighted content from total strangers via a service organized for just that purpose. Because of the technology, music stealing has escalated from petty theft to organized crime. While one can empathize with RIAA's desire to shut the file- swapping networks down, its tactics in the matter are deplorably heavy-handed. But the industry has shown total disregard to the collateral damage it is causing. To find the targets of its litigation, the trade association used the courts to force Internet Service Providers to disclose the identity of their consumers. Verizon, to its credit, resisted vigorously but lost in court. As a result, the privacy of all Internet users--none too great to begin with--has been seriously eroded. Second, RIAA and the entertainment conglomerates pushed the ill- conceived Digital Millennium Copyright Act through Congress in 1998, benefiting from the fact that lawmakers do not understand technology but do understand large corporations and the campaign contributions they can generate. The act infringes on many users' rights that have been sanctioned by the courts. You are legally entitled to copy content for your own use -- e.g., make a copy of a CD to use in your player while the original stays safely in storage. (This is an essential safeguard for those who use portable or car players.) You also are free to "rip" the tracks as mp3s for use on your digital music player. The industry has tried to prevent consumers from implementing these legal uses. Third, the industry has been quite clear that it does not make any distinction between casual sharing among friends and wholesale abuse. Burn that CD copy and give it to a friend instead of putting it into your car player and you, too, may find yourself hauled into court. Actually, the RIAA position is even dumber than that. Its investigators aren't out looking for physical burned copies, which are digitally perfect, but RIAA is prepared to hammer you if you should email your friend an mp3, which is sonically degraded. Fourth, the industry did quite a bit to bring its problems on itself. The price of CDs has become highly inflated, with the standard list price around $18-19 and the "street" price four or five bucks below that. The street price used to be in the $12 range, with frequent sales so that your average price was much lower. Universal Music admitted as much this week by cutting its CD prices back to $12.98 level. Moreover, the music industry was slow to realize that mp3s were the new equivalent of singles. Credible, reasonably priced music download services just now are making their way to the marketplace. Previously, the only way to get any substantial collection of individual tracks was to use illegal means. The buck-a-track price point for legal downloads seems to be heading downward to 80 cents or so. There seems to be a general consensus among industry observers that the price needs to come down further, with 50 cents per track widely seen as the level at which legal downloads will draw a substantial market. From what I have seen in trying out a couple of services, price isn't the only issue. Sound quality has been inconsistent, and no service has yet put together the right combination of features and catalog content. But progress is being made. If that is the solution, it can't come soon enough. The warfare between unrestrained downloaders and indiscriminate lawsuits is getting to be a lot like one of Mel Gibson's Mad Max movies -- while the combatants are trying wipe each other out, it's the folks on the sidelines who get trampled. (c) 2004 Al Gordon. In addition to his computer interests, Al Gordon is a principal in the Boston-area strategic consulting firm, Mary Fifield Associates, www.maryfifieldassociates.com On Dec. 19, a three-judge panel on the U.S. Court of Appeals for District of Columbia overturned a lower court ruling that required Verizon to turn over to RIAA the names of those suspected of illegally sharing copyrighted songs -- and who then would become the target of the RIAA's piracy suits. The court's opinion said "We are not unsympathetic either to the RIAA’s concern regarding the widespread infringement of its members’ copyrights, or to the need for legal tools to protect those rights," but held that RIAA was trying to stretch the Digital Millennium Copyright Act (DMCA ) way too far. Peer-to-peer file sharing "was not even a glimmer in anyone’s eye when the DMCA was enacted," the opinion said. "It is not the province of the courts, however, to rewrite the DMCA in order to make it fit a new and unforeseen internet architecture, no matter how damaging that development has been to the music industry or threatens being to the motion picture and software industries." RIAA greeted the ruling with its usual subtlety: it is vowing to press on with its lawsuits and promises to respond by getting nastier by not offering their targets an opportunity to reach a settlement before suits are filed. So for now an ISP can protect the privacy of its users. I recommend that you ask your ISP what it's policy is going to be. It was ironic to me here in Massachusetts that Verizon -- the phone company, for goodness sake -- took on the battle, while Comcast -- the cable giant with an entrepreneurial history -- caved in to RIAA without hesitation. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ You can reach Al Gordon at:  Return to Top
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