Copyright Follies.. Part 4... Issue #2

Here comes part 4 of my look at the RIAA vs. the consumer. I framed issue #2 like this: If copyright law says downloading is illegal, but current lawsuits are doing little to stem the tide of downloading, why does the RIAA continue this ill begotten policy of suing its customers? Here I want to explore the tactics of the RIAA and why they probably aren't working as planned. Also, a hit on what I believe is the greater piracy issue: global copyright infringement.

Mark Cuban, owner of the Dallas Mavericks and HD-Net, does a very nice job of framing the issue here. He says:

This is the only industry in the world that can see thousands of its retailers close, reduce the number of products it sells via cutbacks in artist rosters and albums released, cut back marketing and promotional dollars and then blame a reduction in sales on someone or something other than themselves.

That big bad bogeyman of piracy is blowing down everyone's house. The poor music industry. Except of course that there is nothing more than anecdotal proof that Peer to Peer networks hurt music sales, and to counter those, there are studies and anecdotal evidence that the sampling opportunity that P2P networks create actually help sales.

Let me quote two other articles from Wired. According to this article:

Peer-to-peer traffic has not declined despite the music industry's aggressive pursuit of illegal file sharers, according to a new study.

Then check out this article which states:

A file-sharing program called BitTorrent has become a behemoth, devouring more than a third of the internet's bandwidth, and Hollywood's copyright cops are taking notice.

According to Wendy Seltzer in this interview at Engadget when asked what the RIAA lawsuits are accomplishing:

Turning off a lot of music fans. The lawsuits haven't significantly cut the use of P2P filesharing, according to BigChampagne and other measures. The record labels continue to file suits against Doe defendants, a few hundred at a time, but they haven't really changed people's behavior ... Until the music industry or a few big players move away from suing customers to meeting their demands, we're at a stalemate.

Just for fun, let's check out what artist Jeff Tweedy, of the band Wilco, thinks of all these suits:

WN: What if the efforts to stop unauthorized music file sharing are successful? How would that change culture?

Tweedy: If they succeed, it will damage the culture and industry they say they're trying to save.

What if there was a movement to shut down libraries because book publishers and authors were up in arms over the idea that people are reading books for free? It would send a message that books are only for the elite who can afford them.

Stop trying to treat music like it's a tennis shoe, something to be branded. If the music industry wants to save money, they should take a look at some of their six-figure executive expense accounts. All those lawsuits can't be cheap, either.

[..] Tweedy: A piece of art is not a loaf of bread. When someone steals a loaf of bread from the store, that's it. The loaf of bread is gone. When someone downloads a piece of music, it's just data until the listener puts that music back together with their own ears, their mind, their subjective experience. How they perceive your work changes your work.

Treating your audience like thieves is absurd. Anyone who chooses to listen to our music becomes a collaborator. (via Wired)

Finally, what the music industry itself says about downloading from this article in the Economist:

According to an internal study done by one of the majors, between two-thirds and three-quarters of the drop in sales in America had nothing to do with internet piracy. No-one knows how much weight to assign to each of the other explanations: rising physical CD piracy, shrinking retail space, competition from other media, and the quality of the music itself. But creativity doubtless plays an important part.

What these articles(and many more) show is that file-sharing is by no means slowing down. Consumers aren't frightened by the lawsuits and simply move on to other methods of piracy. It's clear that not all musicians are in favor of the tactics and somehow the RIAA has dedicated itself to filing lawsuits. It's clear that there are less and less artists to choose from, and all the music on radio and MTV sounds exactly the same. So the question becomes, why does the RIAA (and the MPAA) continue to file lawsuits? This is the most interesting question but before we get there, I'd like to explore HOW a RIAA lawsuit is filed.

According to this article, by Anita Ramasastry, at Law.com the process goes likes this:

It files a "John Doe" lawsuit based on an Internet Protocol (IP) address connected to P2P trading via Kazaa, Grokster, Limewire, or another, similar system. The suit is often filed in the jurisdiction where the relevant Internet Service Provider (ISP) is located.

Once the suit is filed, the RIAA subpoenas the ISP to force it to disclose the real name of the "John Doe" associated with the IP address. That person, however, is not necessarily the file trader - it may instead be a relative, college roommate, or landlord. And neither that person - nor the file trader, if he or she is a different person - is given prior notice and a chance to fight the subpoena.

Now the RIAA, gets your Internet Protocol (IP address which is uniquely assigned to each computer) for the subpoena by going on to P2P services and looks who has music available for download. If you pass a certain threshold of songs (about 1000 songs) they are coming after to you. Note that the RIAA has absolutely no idea who they are suing which is why you get 10 and 12 year-old kids into the mix. Now this isn't a criminal proceeding here, so intent(actually its called mens rea but intent will work) isn't necessary. They are merely going to show that you had 1000 songs available to download.

Now notice two things here. First, the RIAA is primarily sticking to P2P services like Grokster, Limewire, and Edonkey. Second, they are only going after uploaders of music and not the downloaders. The RIAA is sticking with P2P services because they are the easiest and most widely used method for trading music files(though bittorrent is moving up fast). As I mentioned before, they merely log on to one of these services and see who has what available. If a certain threshold is passed the RIAA considers suits. Now let's consider the uploaders only issue. This is fairly self-explanatory. Stem the tide of songs and there will not be anything out there to download AND more importantly, you save a lot of money doing it. Imagine the sheer complexity of going after every person that has downloaded a song off the internet. How many millions and millions of people are you discussing. Then imagine all of the lawsuits that you would have to pursue in the United States. Then imagine how you would file those lawsuits in countries where copyright is not recognized. Couple this all together and you start to see why the RIAA quakes in its boots.

Quickly, I want to touch on one thing that I mentioned above. Global piracy is a very interesting issue though not much is known about it. Global piracy has more is based more in physical piracy rather than internet piracy. This is due to the fact that many countries don't have broadband internet connections like developed countries. Does this mean that China or Mexico doesn't engage in global piracy? Hell no, they are big time players in physical piracy. Physical piracy occurs when someone takes a cd of music or software and copies it to another cd and then sells it. Imagine, Windows XP being sold for 5 dollars a copy in China. It happens and it happens with music as well. So instead of trying to coordinate with other countries to help them enhance their intellectual property laws and stem physical piracy, the RIAA has chosen to sue the AMERICAN consumer. So going after 280 million domestic downloaders is much easier than going after what I perceive is going to be the bigger issue over time. I'm hoping you are starting to get a flavor for the mindset of the RIAA.

It's not that I don't have sympathy for the RIAA, I do have a little. I certainly do not advocate copyright infringement. If we want music we should pay for it. Yet with their ongoing lawsuits and tactics it should be relatively clear that these methods are not working. Yet they still stick with them. With this in mind, I want to move into the RIAA mindset more with some thoughts on digital rights management. In the few cases that the RIAA has allowed music to be downloaded, they have made it so encumbered with protections that it drives consumers back to illegal downloading. This will help us understand why the RIAA and the MPAA do what they do. I'll give you a hint: self-preservation and control of what YOU listen and watch.