TCS Daily

Musical Scares

By James V. DeLong - July 1, 2003 12:00 AM

The Record Industry Association of America dropped the other shoe last Wednesday when it said that its anti-downloading enforcement actions will no longer be limited to the purveyors of swapping software. It will go after the users themselves, finding them via the same programs that are used for swapping. As a start, it will target major uploaders

It is startling to realize that until May 1999 no one had heard the name "Napster," considering how completely that program upended the world of music and, indeed, the entire universe of intellectual property. By February 2001, when a federal appellate court upheld the music industry's copyright infringement suit and pretty much shut down Napster, almost 80 million people had signed up for it. The fallen torch was picked up by Kazaa, Morpheus, BearShare and other refiners of P2P technology. In 2002, these had 57 million users in the U.S. and accounted for 5 billion downloads, and by May 2003 Kazaa alone had been downloaded 230 million times, worldwide.

If the music industry could, it would far prefer to sue only these intermediaries and avoid going after the users. The downloaders are its customer base, and suing your customers is one of the great no-nos of business strategy. But the industry is in a tough legal and political box, and has been left with little choice.

In Napster's technology, a list of songs available on the network at any given time was compiled on the company's servers. Someone seeking music then searched this list, and was directed to the appropriate computer in the home of a fellow user of the network. This let the courts enjoin Napster as a business, and its practice of listing available songs even if they were under copyright, without eliminating Napster as a technology.

Napster's progeny operate in a decentralized fashion.. A search request goes not to a central server but to a group of nearby computers. Each of these sends it to another group, each of which sends it on, and so on. There is no central node involving copyright infringement for a court to get a purchase on.

This allows the producers of the software to say:

"Hey, we are just innocent software providers. We tell people not to infringe copyright. See? Look right there on our website. Or here, where we say, 'support the artist; buy the record.' And P2P is a valuable technology; you can't outlaw a technology just because it might be used to perform an illegal act. If you don't like infringement, go after the infringers."

We all know that this is tosh. It is like a mimeo sheet circulated during Prohibition that said: Warning: This page contains information on how to manufacture the illegal substance known as beer. . . . Do not follow these directions or you will be breaking the law. But it is a solid point legally, at least as far as P2P is concerned, since P2P is indeed a valuable technology. Determining the legality of a program according to the subjective motives of its distributors is not a comfortable position for the legal system.

The point is even more forceful politically, because the tech community is frightened witless, and with good reason, of anything that smacks of legal limitations on innovation or government specifications of allowable technology.

In rejecting the music industry's recent effort to enjoin Grokster, the trial judge hewed to this line of thinking. Whatever the motivations of the company, it did not control what the users did with the product. He likened Grokster to companies such as Sony or Xerox, which can know full well that VCRs and copying machines will be used by many to infringe copyrights without themselves becoming liable for these actions.

Given this concatenation of forces, the industry decision to proceed against swappers, albeit cautiously, was inevitable. The timing was facilitated by the growing number of paid download services, especially the recent success of Apple's iTunes. In the past, a swapper could argue that the industry had no right to insist that people buy $18 CDs when it should be delivering its bits over the Internet for a pittance, but the moral force of this argument is declining as the bits do indeed become available over the Internet.

And it is important to be clear that the contest is fundamentally moral. As part of its announcement, the RIAA lined up a slew of artists and composers to say, "Look, this is our livelihood you are taking, and it is not right." This is good, but it does not go far enough. RIAA should have added some consumers saying:

"We like music, but we are not 18th century dukes who can hire their own composers and orchestras. What we need is a method of pooling our funds with other music lovers so that we each pay a little to the artists we like and the middlemen who get the stuff out, and in return we get a cornucopia of music delivered over the Internet. (Let's call this method "a market.") Someone who free rides, who takes advantage of our monetary support of the music industry without contributing himself, is not acting morally. Someone who deliberately sets out to destroy the market for ideological reasons -- because he thinks "music ought to be free" or some similar juvenile slogan -- is worse. He is the equivalent of a medieval barbarian, who destroys the basis of civilization out of aggressive ignorance. Someone who sets out to destroy the market so he can sell ads as he does so is the moral equivalent of a World War I 'merchant of death' arms dealer."

The record industry can win in the long run only if this moral case is heard and understood by the public. There are encouraging signs. The reaction to Wednesday's announcement was muted, not what must have been feared at the RIAA. An overwrought academician said in the LA Times: "The RIAA pits itself against ordinary Americans who use file-sharing programs legitimately," which is a bit of a non-sequitur, since the very purpose of the initiative is to go after only those who use programs illegitimately, and the RIAA actually benefits from academic illogic because it shows the defects of its opponents' case.

Also, the swapping software industry made a tactical, perhaps a strategic, mistake. The CEO of Streamcast responded to RIAA with a promise to organize the illegal swappers to lobby Congress against the enforcement initiative, a stance that totally contradicts Streamcast's avowed opposition to copyright infringement. Its website says:

StreamCast Networks does not condone copyright infringement. Due to the nature of peer-to-peer software, StreamCast Networks is unable to monitor or control the types of files shared within the Morpheus community. If you locate a file being shared by a user who you believe may be in violation of copyright law, please report your concerns to the user directly.

The lawyers who must defend Grokster appeal by arguing that Streamcast is just an innocent purveyor of technology, uncondoning of any illegal activity, must not be terribly happy today -- they will see their CEO's statement again in court, and the contrast with the purported policy only makes it more striking. In the court of public opinion, the statement demonstrates an affinity with the early 20th century figure Sir Basil Zaharoff, widely known as "the merchant of death."

The music industry must do its part. It must get the pipeline of paid services open and flowing, and ensure that the material is readily available at competitive prices. It must avoid enforcement actions against people who upload material that is not available through these legitimate channels, even if it is under copyright. It must be very careful not to go after the wrong people, and, when it makes mistakes (which it will) it must grovel handsomely.

But if it does these things, the moral contest can be won. And I, as a consumer who is salivating over the thought of an Internet full of classical music at low prices, will be delighted.

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