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The RoBlog
Sunday, October 12, 2003
Piracy: Music
Like everything I seem to post, this is the first in a series about piracy and ownership rights in the digital age. I'm starting with music as it's the thing that most people at least have a passing understanding that there are current issues, and an idea of what those issues are. Future enties, however (should they decide to materialize), will focus on some aspect of ownership that are only now beginning to become real issues, that you might not have thought about before (maybe I'll include them in this entry, but I'm guessing that my will to write won't hold out that long).

I was lunch the other day with some people I know, one of whom was Steve Duin, columnist for the Oregonian. He had just written an article about a local girl who was given a supeona by the RIAA. It should be noted that she is NOT part of the lawsuit that targeted 261 individuals the other week...at least not yet.

Me as the RIAA Lackey
Anyway, we naturally got to talking about the subject of music and piracy. I love music, and have to admit to having dabbled on the P-to-P networks a time or two, and I'm DEFINITELY no friend to the major recording industry as a rule, but I found myself in the odd place (along with another person in the group who is a lawer) of, if not defending the RIAA, at least pointing out that they have a right to do what they are doing (wrong though it may be for their business), and, moreover, are obligated to do SOMETHING in order to defend their rights as copyright holders.

Steve was arguing the pro-...well let's call it the pro-use side, citing the fair use laws as a basis for his argument. Just in case you aren't aware, I am NOT a lawyer, and the lawyer in our group was only engaging in casual, unprepared conversation, and has no particular speciality in copyright law (at least as far as I know). My impression of the fair use laws, however, has always been that they came about in the time of the VCR and the cassette tape, and were built to protect the media comsumer's right to time shift TV, and to have backups of media that they legitimately purchased. The idea (so far as I know) was that as long as you aren't selling these goods, it's ok to make copies.

The reality is that personal copying in this way was never a real threat to media producers, and, in many ways, was actually a good way to market things to people based on another person's word. Mass duplication of tapes was difficult, expensive, time consuming, and the quality of the copies went downhill the more you made.

Of course, now we live in the digial age AND the Internet age. This means that copies can be made of the digital source of a music CD, and distributed to pretty much everyone in the world for no real cost to the person making the copy. In theory, only one person might buy a CD, would copy it, and everyone who had even a passing interest in one or all of the tracks could get a copy of it for free. Moreover, once more than a couple of people have a copy of a music track, it becomes practically impossible for someone to shut down the source. Since the music industry was so thorough in their irradication of centralized music distribution services like Napster, the P-to-P networks are now massively distrubuted with the same ability as other scale free networks (like the Internet itself) to survive what might otherwise be considered devastating blows to a distribution infrastructure. Knock out FedEx's central distribution hub, where all packages come through, and you've effectively crippled FedEx. Shut down 99% of file distributers nowadays and the remaining 1% can repopulate everything pretty much immdediately.

This is definitely not the environment that fair use laws were built for, and I think it would be a bit naive to think that fair use would withstand any serious legal scrutiny if it were used as a defense by someone who is distributing hundreds, if not thousands of music files they never paid for.

On ever so slightly better grounds are the twin arguments "everybody is doing it" and "I didn't know it was wrong." These are especially good arguments for the younger set where it is true that pretty much everybody with a computer IS doing it. In Steve's article, the gal he interviews says roughly (that's right, I have the window open on my computer right now with Steve's article in it, but I'm too lazy to switch to it to get the gal's name or what, exactly it is she said) that she doesn't know anyone who has less than 800 music files, all presumed acquired illegally. As a new parent, and former (or current, if you ask my wife) child, I can feel the argument swelling within me that just because everyone is doing it doesn't make it right. But if everyone IS really doing it, then it is a signal of SOME kind that should be taken seriously (honestly, I don't know a signal of what beyond that something must change; perhaps fodder for a future entry).

As far as not knowing that trading music in this way is wrong, again an argument that's better in the hands of the younger set. Most adults have figured out that if something is too good to be true (like getting all of your music for free when it used to cost nearly $20 a CD), it probably is, and if it is REALLY too good to be true, it's probably illegal. For the current generation of teens, it's a more reasonable argument. A good deal of their parents still don't know much more about their computers than how to turn them on and send email. They don't understand, or, for the most part, care, about the ins and outs of copyright law, P-to-P networks and how to take a CD and make it into files you can share with all of your friends. Because of this, they have probably never had any discussion with their kids about why it may not exactly be legal, or even moral, to download and keep music that they didn't pay for (ok, I'm REALLY starting to sound like an RIAA exec here, but bear with me a bit longer and I'll change my tune -- so to speak).

For these kids, music has been free nearly their entire purchasing life. Asuming that they didn't really get into music until they were twelve, those kids who are 16 today (as was the girl in Steve's article), were just getting into music when Napster was in full swing. It's possible that they could have a huge music collection, and have NEVER purchased a CD. If everyone is doing it, and it's always been that way, how could it be wrong?

An even better argument, and perhaps the only one that really has a leg to stand on is "I didn't know I was sharing anything". As far as I know, all the P-to-P software comes set to share your files (typically a special directory used by just that program, not ALL of your files), and come set to put the files that you download into the directory that is shared for everyone to get at. Yes, it is true that you typically have to walk through a short configuration where, if you were paying any kind of attention at all, you'd see that you were setting up a directory to be shared. Yes it is also true that there are often other indicators while you are using such software that, if you were paying attention, would indicate to you that the files you are downloading will be made available to everyone else. But I've got to say that I work on the user experience of web sites on pretty much a daily basis, and the one thing we learn over and over and over again, is that people just flat don't pay attention. They become accustomed to blindly clicking on the most obvious options, even on pop-up boxes, without ever having actually read them. This doesn't get you by the problem of your having ownership of illegal files to begin with, but at least it makes it possible that you DID own those CDs at some point and were just storing them for your own personal use. I'm not saying it's a GREAT defense, but any port in a storm, as they say.

Music Should be Free, Man
As I was arguing aspects of the RIAA's case, and doing a reasonably good job at it, I had to confront the following question: If the RIAA is doing what they should be doing to protect what's theirs, why do I think it's wrong?

The first, and I think most important, reason for this is radio. Plain and simple, they've been giving away the latest music for free for decades. Sure, the radio pays royalties to the rights holders for every song they play, and radio play is an excellent marketing tool to get people to buy the music they hear (by the way, what do you think is the major reason people buy music? I know there are a lot of answers to that question, but I'm betting the primary reason is control. But more on that if I don't run out of steam). Record companies and artists (in theory anyway) get paid by the radio station, the radion station is paid by the advertisements that the station plays, and everyone is happy. The problem with this model, is that people don't really equate their commercial consuming time with any personal value. They don't think "I just gave that sponsor $1.20 of my time", which means that they don't think about the fact that they got $1.20 worth of content preceding an ad. Moreover, even though they might not switch radio stations at the commercial breaks (I'd be interested in any figures anyone might have about this behavior), the POSSIBILITY that they might change stations makes them feel like they come out ahead on the implicit advertising contract they have with the radio station that they are listening to.

The same goes for music videos, which actually ARE free (or at least give more apparent value for the same advertising space) .

Further compounding this is the history of music, which I don't know enough about to speak with any kind of authority, so I will only mention that music was a form of entertainment that, in a community, really was free. It was part of community gatherings, and was they way stories were told. Making money on it was, more or less, a creation of the 20th century.

So we're trained that music has little value, and think, therefore, that if we are breaking the law, we're only breaking it a little bit.

Adding to this is the music industry's continued ill behaviour to it's artists and consumers. I'm not going to go on an on about artist's rights as I'm less familliar with that aspect of things beyond the impression I get from VH1's Behind the Music (which I only watched for a few episodes, I swear). On the consumer side though, I can speak with some authority having a thousand or so CDs that I've actually gone through the effort of purchasing.

Anyone will tell you that the price of CDs is ridiculously high. What makes us think it's high? Because we're trained that it is free. Twenty bucks may not buy what it used to, but it's still a heck of a lot to pay for something that's free. That's what we in the US call getting taken. What's more, the price of writable CDs is very, very cheap. And CDs haven't changed much in the over 20 years they've been produced. So why do they cost so danged much? Why hasn't the price dropped as the media was widely adopted and efficiency of production has presumedly gone up? I can't answer these questions (though I suspect the music industry will point to marketing costs, increased competition, recording costs, and the like as the primary reasons), but as a consumer, the fact that the price of a CD has ALWAYS been expensive irks me every time I go to buy something new.

So now I buy many of my CDs on the after market, where I can get them for as low as $4...which, of course, the record industry, with Garth Brooks as the primary spokesman, fought as well.

Toss in the fact that they've been fighting to extend the life of contract and copyright law so that they could continue to make money on recordings that would otherwise come in to the public domain, and the recording industry comes off looking like money grubbing sons of business women.

That's All Good, But...
So, now what? We're trained to believe that music is free, but the recording industry has a right to do what they're doing to protect their interests even though it makes them look like the aforementioned sons of businesswomen. Are we deadlocked?

It certainly seems that those who want music to be free are winning, based on the fact that sales are down for the music industry for the second year in a row. Their lawsuits, though scary, and interesting, are attacking a very small portion of the illegal file sharing population, so you could argue they are of little consequence, but even Mr. Duin admitted that he would be shutting down any file trading that his daughter may be doing, so the message IS getting accross, even if it only effects the daughters of reporters who cover RIAA activities.

The obvious direction for RIAA members is to add encryption to their product, but since it would likely require people to upgrade their existing CD equipment, they would have to do it under the guise of some new, more spectacular format, to wit: SACD (sponsored by one of the big record labels, Sony), and DVD-Audio (sponsored by...well....I don't really know, but I'm sure they have shady motives too). Both of these formats provide much more sound on a single disc. Typically you get surround sound, but they also claim to record better sound quality as well. Of course, both of these formats require new equipment in order to play them, and that new equipment, just like with DVD movies, is required to decrypt the contents of the disc, as well as get the contents to the right speaker. This means that discs in the new format aren't likely to be copyable by just tossing them into your computer and hitting record.

The problem with these formats is that I don't think anyone really cares about better sound quality. As I mentioned above, people are primarily interested in CONTROL of their music, not the sound quality. I mean, sure, it's got to sound acceptable, but for quite a long time people wandered around with cassette tapes with songs recorded off the radio. I would be surprised, frankly, if the market for extremely high quality, surround sound versions of the latest Britney Spears song is really there. Out on the P-to-P networks, music is commonly recorded at 128kbps or 192kbps, well under CD quality. Because the vast majority of people don't care about the extra quality of these new formats, I expect that they will not catch on unless the price to buy a disc is no greater than to buy a CD, and unless every piece of new CD/DVD hardware made encorporates these formats as well (remember, Sony, which is both a major hardware manufacturer and a major record label, is involved, so this last point is not out of the question). Even if these formats do take off, I expect it'll be as much as 10 more years before everyone is buying them regularly, and the music industry is hemmoraging right now, thank you very much.

This brings us to the online world. For quite a long time, the recording industry did not appear to be even attempting to meet the problem of online piracy head on. I worked for an Internet startup (back when everyone was doing it) that was co-located with another startup focused on selling music online. At the time, getting the record labels to release their music for sale online with strong encryption to prevent copying as like pulling teeth, those being the teeth of a shark that was actively trying to eat your arm off. And when they would give up some music, they would only allow it to be sold a prices no sane person would purchase at. That startup eventually went belly up, but I couldn't tell you if it was related to this or not (we weren't living with them any longer).

Then the record labels thought they would try online music for themselves. Their thought was to pursue monthly subscription services, where you pay 9.99 or more a month to listen all you want. Catch is, when you stopped paying, you didn't own any of the music. What's more, is that even while you were paying for the service, you couldn't burn the music (or you could only burn very little of it) to a CD and take it with you in your car, or, really away from your computer in any meaninful way. Some of these services still exist, and I expect they'll continue to exist for a while, but my expectation is that they won't become major players for quite some time, if ever (sorry Napster 2.0).

Then there is Apple's iTunes store. Somehow the quirky computer company got the record companies to give up their goods at a price that most people consider reasonable, $1 per track, and other online vendors are following suit. Putting aside the problem of shelling out $1 for a 3 second Napalm Death song versus spending $1 for a 14 minute Iron Maiden song, these new music venues are not without their downside.

When you download a track, you are limited as to what you can do with it. You can't copy it willy-nilly, and are generally limited to something like 3 copies at all. This is all well and good, but the catch in my mind (having worked on several projects like this myself (more to come on that later)) has always been that your being able to play that track forever is dependent on the company that you buy it from existing for as long as you want to play the track. If the company goes out of business and no one bails them out, your access to the music you bought is terminated the next time you get a new computer, or rebuild your existing one.

Ok, ok, this is becoming a book, and not a quite treatise like I was hoping to write, so I'm going to stop here. Sorry for the little history lesson here, I'll work on keeping things shorter in the future (but don't hold your breath). Next time, I'll write about why piracy will continue, but how the record companies are likely to win for a while before they lose again, this time probably for good, and along with the movie industry, and, to an extent, you personal rights.

As always, comments are welcome at roblogATthenetatworkDOTcom.
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