The Recording Industry Association of America really ought to
hold the moral high ground in its fight to stop illegal downloading
of music. Record labels invest unquantifiable amounts of time,
care, and money in finding, recording, distributing, and promoting
new music. And then file-sharers take whatever songs they want
without paying. But when the RIAA files a lawsuit, it faces an
outcry of public “Aw, it’s just a kid who likes your music”
sentiment.
People come up with all kinds of inventive hogwash to insist
that downloading hasn’t hurt record labels’ bottom lines, even
though the industry’s fall began at precisely the time downloading took
off. It’s common sense that people won’t buy what they can get for
free. Improbably, critics insist that the steep sales drop is due
to a decline in music quality.
Of course, they never explain why people are downloading the
music if it’s so bad. And if music quality has declined somewhat,
it’s completely reasonable to suspect that’s an effect, not a
cause, of the sales drop. Most bands fail, so when record labels
have cash flow problems, they have to stick with familiar, generic
sounds they know people will buy.
Unfortunately, the RIAA seems hell-bent on vindicating the anger
that so many have for it. First it supported forcing colleges to police students’ Internet
activities. And now it’s claiming that ripping legally purchased CDs —
putting the songs on a computer, even if just for one’s own use —
is illegal.
The case revolves around Arizona’s Jeffrey Howell. The lawsuit
itself wouldn’t be particularly unusual — the RIAA is suing Howell
for allegedly sharing music songs he hadn’t purchased — but
an RIAA brief argues that sharing isn’t the only problem.
According to this legal trial balloon, all of the MP3 files on
Howell’s computer, even the ones he made from CDs he’d purchased
legally, are “unauthorized copies.”
The RIAA apparently has no scruples about taking on the role of
most unpopular organization in the known universe, but
self-preservation should make the brass pull back here. This new
argument is, at best, a dubious legal strategy. And its effect on
sales is not likely to be good.
FAIR USE IS THE question here. When a media company grants a
customer access to a product, the consumer can use the material in
a number of ways. Most importantly, he can tape TV shows for his own viewing. No court has
ever explicitly ruled on CD ripping, but it’s not clear what the
difference is.
The VHS tape of 1984 and the hard drive of today both contain
legally accessed material, transferred to a different format for
personal use. It doesn’t matter whether that particular copy is
“authorized” by the author, so long as the customer isn’t giving it
to other people.
It’s also unclear what financial benefit the RIAA hopes to gain.
If successful, this new anti-ripping stance will cut down on the
number of people who put their music on their computers, but it
will do so, disproportionately, with people who weren’t sharing the
music to begin with. File-sharers are already breaking the law by
giving others’ music away for free, so it’s doubtful many will stop
when their behavior becomes illegal in another way.
The RIAA has had some success with lawsuits — the recording
industry’s sales even rose slightly in 2004, the year the suits
began, after falling since 1999; though sales
have continued to tank since then — and it’s true this would lower
the burden of proof. RIAA lawyers would only have to prove ripping,
rather than sharing. But in the vast majority of cases, the RIAA’s
targets settle out of court anyway.
Who will most of the consumers who stop ripping music be? Many
customers like having high-quality sound for their home systems,
but also want small files to put on their MP3 players and iPods.
These people are best served by CDs — which contain
high-definition audio, but can be ripped to a computer file,
compressed to a fraction of the original size, and transferred to a
tiny device that holds hundreds of songs.
Maybe these customers will turn to legal downloads and suffer
the quality loss on their home systems (and the lack of supporting
materials like insert booklets). Maybe they’ll put their iPods
away, or even buy both CDs and legal files, paying twice for the
same material. Or maybe, fed up with the way they were treated when
they paid for material, they’ll go for illegal downloads.
Whatever happens, the RIAA will have put the screws to paying
customers.
By and large, I believe that the RIAA is right on matters of
piracy. But that won’t matter at all if its actions create in
customers nothing but contempt for the current law, which is the
one thing keeping the record labels in business.
