The Common Good
January 2004

Thou Shalt Not Download?

by David Batstone | January 2004

Who are the real pirates in the music economy?

The Best Album of 2003 goes to...your hard drive.

Two years ago the editors of Spin magazine were prescient enough to make that call. They detected a burning passion among a new generation of music lovers to swap with friends and strangers digital files of their favorite tunes. Nearly one out of every two Internet users between the ages of 12 and 22 downloaded music this past summer, according to a Forrester Research report on file-sharing trends.

If you’re not tech savvy, you may wonder how file sharing works. To share songs on the Internet, users put digital music files into a folder on their hard drive. Software such as Kazaa and Morpheus then enables them to find and retrieve the files from each other’s computers rather than from a central Net store (such as Napster, a Web site that the record industry succeeded in shutting down in 2001). No money is exchanged in the "swap," and no direct income flows back to the record companies.

The Recording Industry Association of America (RIAA)—the heavy arm of major music recording companies—charges that sharing songs over the Internet is akin to stealing a CD from a record store. As such, the violation of copyright law eats into their commercial market, argue industry insiders. Sales of music CDs have dropped 31 percent since 2000, according to the RIAA, and it blames the slide on file swapping.

In an aggressive effort to turn the cultural tide, the RIAA filed suit recently against hundreds of citizens suspected of downloading and sharing music. The industry hopes the suits, which seek as much as $150,000 per violation, will deter computer users from engaging in what the record industry considers illegal file swapping. While the threat of hefty fines scared off some, millions of Internet users continued to copy and share songs without paying for them. One week after the lawsuits were made public, 4 million users continued to use Kazaa, only about a 5 percent dip from the week prior to RIAA’s legal action.

So why is there such a disparity between the legal status of file sharing in the United States and the apparent cultural consensus on its practice?

To many music fans, file swapping seems no more criminal than recording an episode of The West Wing and sharing the video with your friends. That perception is especially common among young people who grew up on the Internet and its toll-free passage of content. A Gallup Youth Survey in fact shows that only 15 percent of 13-to-17-year-olds think that downloading music is "morally wrong."

The established media magnates actually tried to halt video recording nearly two decades ago and deployed many of the same arguments about the threat to the entertainment industry as they now make about file sharing. But a 1984 ruling by the U.S. Supreme Court found that the use of VCRs to record television programs for noncommercial use in the home violates no law. And the Audio Home Recording Act of 1992 made it clear that a citizen can use digital audio tape players or other similar gadgets to record digital music for personal, noncommercial use. Sharing a digital music file over the Net seems no different, bar the ease of transmission to potentially millions of parties.

How ironic that the major recording companies, long notorious for ripping off musicians and songwriters from what is rightfully theirs, now present themselves as the champions of the artists’ livelihood. The sincerity of their position is further undermined by the fact that in recent years the top recording companies have engaged in price-fixing schemes on CDs sold at major retailers. In a recent case, New York State Attorney General Eliot Spitzer concluded that the price fixing cost consumers at least a few dollars per CD. Who, then, are the real pirates in the music economy?

Let’s face it. Efforts to halt file sharing will fail. Traditional notions of intellectual property—and the business models built upon them—are disrupted in a digital environment. Rather than criminalizing teenage kids for their love of music, the recording industry needs to focus its energy on how to reinvent itself. DJ Moby, in a post on his Web site, nailed it: "Record companies suing 12-year-old girls for file sharing is kind of like horse-and-buggy operators suing Henry Ford."

David Batstone, executive editor of Sojourners, is author of Saving the Corporate Soul & (Who Knows) Maybe Your Own (Jossey-Bass, 2003).

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