File-sharing By Richard Volkman

In their continuing battle against online piracy through peer-to-peer networks, the Recording Industry Association of America (RIAA) has launched another round of lawsuits against users of internet file sharing. While it remains to be seen what the outcome of these suits will bring, there is a good chance that they will hasten the end of a business model firmly rooted in the bad old days before information wanted to be free. If this turns out to be the case, then the RIAA actions may have the ironic result of delivering what music fans say they want – the ability to get just the music they want at a fair price with the convenience and selection that online browsing can uniquely offer.

The catch is that this will also remove any excuse for stealing music online.

Across the net, on news sites and bulletin boards, outraged users are denouncing the RIAA and its motives. Many are defending illegal downloading of music files on the grounds that the recording industry is simply trying to prop up a business model that no longer works in the age of greased data. From this point of view, copyright protections on music are no longer necessary to promote the art, and such restrictions on use are therefore illegitimate. After all, now that artists can directly appeal to fans online and distribute their own works at very little marginal cost, the old, expensive system for distributing music on physical media like CDs can be replaced. In a world of inexpensive global information sharing, we no longer need RIAA members to serve as the middle man. In light of this, the argument goes, the RIAA lawsuits are merely the dying gasps of an industry whose purpose has been automated away. Just as there is little need for master cobblers or blacksmiths after the industrial revolution, so the computer revolution has done away with (most of) the need for the recording industry. In the information age, music will continue to be made and distributed, but without users paying an RIAA tax.

At first blush, this argument has much to recommend it. As any amateur or struggling professional musician can tell you, great musicians don’t need to be offered a pile of money as a condition of their creative work. Of course, they are happy to make money, and they may very well be entitled to whatever people are will to pay, but the usual utilitarian defense of intellectual property just doesn’t ring true with respect to music. Indeed, it is preposterous to suppose that there would be any shortage of quality music in the absence of copyright. This idea is ridiculous enough that it was savagely and justly satirized by South Park (Episode 709). The scene of famous musicians going on strike to stop internet song swapping – for example, a depressed Lars Ulrich who can’t afford a new pool for his mansion due to online downloaders – gets a well deserved laugh.

Since musicians do not require a large market incentive to do what they do, why has music copyright existed at all? One initially plausible answer is that – until now – the distribution of music was a costly affair that no one could legitimately expect would be done in the absence of a market reward for doing it and doing it well. Seen in this light, the RIAA’s actions appear to be motivated by an animus against the economics of peer-to-peer networking. Not only do such networks reduce the production and (especially) the transaction costs associated with distributing and marketing of music, thereby undermining the industry’s source of wealth, but they also challenge the need for arbiters of taste – the producers and other gatekeepers of the industry – and this undermines the industry’s cultural power. No wonder they are so eager to sue.

All this suggests that fans can expect better music from the demise of the recording industry, not worse. As one commentator on Slashdot put the case against the recording industry, “It is in their interest to make money on talentless hacks, because while a talentless hack may be capable of producing a one hit wonder (usually with a longtime producer working with them on the track), they won’t be able to achieve long-term success or the power that comes with it to demand reasonable percentages from the record company and creative control.” Another sums up the case nicely, “I’ve long had a theory that the RIAA/MPAA aren’t really against piracy, but they are really against a peer-to-peer economy that is coming up. I believe that they are threatened, not by illegal piracy activities, but by the market becoming splintered, and people listening to a larger variety of music. People on the Internet might stop listening to a few Pop stars, and start listening to a larger variety of music, possibly each other’s music.”

While there is some merit to these arguments against a utilitarian defense of copyright in music, there is another way of understanding copyright and its relation to the authors of creative works. To many of us, there is something profoundly wrong about enjoying the product of another’s labor without offering any sort of compensation. From the point of view of virtue ethics, such behavior is parasitic and base – no one honestly strives to be a leech or a free-loader. Politically, using the labor of another for one’s own benefit without compensation is akin to (and maybe just is) slavery. While utilitarian defenses of intellectual property rights may falter, it is not clear that these other arguments lose any of their bite.

Something like this sort of argument is picked up by Narada, a music label especially catering to those with tastes in somewhat obscure traditional Jazz, World, Americana, and Celtic instrumentals. This is hardly an RIAA member trying to ram the next boy band down our throats! On their FAQ, they argue that copyright “is a fundamental right of all artists” and “absolutely crucial for all musicians, songwriters, and other artists who wish to work by using their talent.” Notice, this argument does not suppose that they will stop being artists if payment is withheld. Rather, paying artists for their work is a matter of fairness and respect of a fundamental right. Significantly, while they do not cast copyright in strictly utilitarian terms, they do point out that piracy, “is not a victimless crime. Illegal downloads and music piracy set in motion a chain reaction that hurts everyone – from honest customers and retailers, to artists, songwriters, producers, studios, musicians, engineers, publishers, record companies, manufacturers and delivery services – thousands of people have lost their jobs.” But the main point is purely a matter of simple fairness: “Without [copyright] there is no way to ensure that those who actually are responsible for creating all the wonderful art and entertainment around us are the beneficiaries of that work.”

Narada also points out that there is no reason to download their music without paying for it, since the label participates with many legitimate online music distributors, such as Apple’s iTunes, Napster, and Rhapsody. The emergence of these services is significant. Not only do they provide nearly all the same advantages – convenience, try-before-you-buy previews, selection, portability – of Kazaa and the other peer-to-peer networks, but they also represent a challenge to the traditional recording industry. These services offer a relatively costless means of distributing relatively obscure and new acts, while placing them next to the big-name acts of the major labels. If independent artists and smaller labels continue to find a home at these sites (and given the modest cost of adding them, why wouldn’t they?) then the future of music looks very bright indeed. We may see an unprecedented variety and quality of creative works, which may usher in a cultural renaissance, all courtesy of information technology. Of course, this may be a problem for the business model of the recording industry’s major players, but this cannot be helped. In the end, peer-to-peer economics prevails.

The twist is that the RIAA’s lawsuits are liable to hasten this outcome. Many users have turned to legitimate services in the wake of these suits, rather than risk the average $3000 settlements associated with earlier lawsuits. With the proliferation of legitimate sites that keep the most compelling advantages of internet music intact, there is no longer any reason to risk such a lawsuit. Nor is there any longer any excuse to steal music. The proponents of peer-to-peer networking need to declare victory and stop stealing music.

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