Recording Industry Puts Major File Sharers Square in Its Sights
By Rob Pegoraro
Sunday, September 7, 2003

After years of denial, the recording industry has finally begun to deal with the file-sharing situation in a realistic, mature way.

No, the major labels aren't selling their entire catalogues online for a dollar or less a track, free of pointless usage restrictions. The news isn't that good.

But after years of trying to criminalize hardware and software that can be used to steal music -- never mind other, legal uses -- the Recording Industry Association of America is going after the people who actually publish copyrighted work online.

Over the past few months, the RIAA and its hires have been logging onto peer-to-peer networks to identify users sharing large collections of MP3 music files. Sometime in the next few days, the D.C.-based trade association will start suing these people.

Many MP3 listeners are shocked, shocked about this strategy. They shouldn't be. The RIAA is doing what many observers have asked it to -- use established laws to defend its interests instead of lobbying for special treatment and new legislation to elevate its rights above those of mere citizens.

(Granted, the RIAA is exploiting some dubious provisions of the Digital Millennium Copyright Act to force Internet providers to reveal file sharers' identities, allowing it to see who makes the best lawsuit bait before going to court. But it could get by without this shortcut; John Doe lawsuits would just take longer and run the risk of occasionally nailing a senator's or judge's kid.)

Cary Sherman, the RIAA's outgoing president, said Thursday that the association's objective is deterrence.

This is not a program that's intended to inflict vengeance. It's intended to send a message, he said.

Copyright law provides for a wide spectrum of awards, from actual monetary loss to $150,000 per copyrighted work infringed. Sherman said the RIAA will just ask the court to assess appropriate damages.

Half the people who download MP3s wind up buying as many or more CDs as before, according to Forrester Research, so actual monetary loss could equate to zero. But how many users want to take their chances on a judge comprehending how peer-to-peer services can be like what FM radio once was?

In the modern American legal system, of course, damages are somewhat irrelevant: The cost of legal representation makes it cheaper for many defendants to accept whatever settlement a plaintiff offers.

We expect that we will be reaching a lot of settlements, Sherman said. We do not intend to be unreasonable or vindictive.

Reportedly, the association will also pledge not to sue users it hasn't yet identified who admit their guilt and delete illicit downloads.

The RIAA's lawsuit strategy focuses on the easiest part of the problem -- the users who offer MP3 collections on public networks for strangers to download, instead of the people downloading these files. As a result, the lawsuits will probably work in one important way -- even if users don't stop downloading music, many will be scared out of sharing their own MP3s, which will then constrict the inventory of songs available on these networks.

If you're not going to uninstall the [file-sharing] software, at least check the box that says do not share, said Sherman.

One user has already drawn that conclusion.

I do not share, said Michael Weiss, chief executive of StreamCast Networks, the Woodland Hills, Calif., developer of the Morpheus file-sharing program. He said it would be foolish to be such an obvious target: We can't compromise our position in this battle.

Weiss did not answer a question about the ethics of file sharing.

But it's not enough for the major labels to be feared by music fans. They also need to give people a reason to like them after the legal bloodletting is done.

Here, the RIAA is wrong to say paid music services offer convenience comparable to peer-to-peer networks.

Consider the example of a music listener who recently bought a song on the one site to let Windows users buy major-label songs without a subscription.

I'm trying to make my kids legal, really I am, wrote Ashburn resident Jane Ellis in an e-mail. But after going to BuyMusic.com, installing the required Windows Media Player 9 software (which left her PC half-crippled) and making her purchase, she found that it wouldn't play on her Rio digital-music player.

So what did Ellis do? The RIAA won't like this: I read somewhere [that] my son could now go to Kazaa legally and download the song we paid for, since I now owned its license, so he ended up doing that.

It's nuts that legitimate music services force users back to file-sharing networks to get a usable download. But too often, that's easier than playing by the rules.

Even Apple's generally well-done iTunes Music Store doesn't let you convert purchases directly to MP3 format, a necessary step to play them on a non-iPod player or stream them to any of the wireless digital-music receivers now entering the market.

There's one exception, and its parent company actually owns one of the major record labels. Vivendi Universal's Emusic.com Web site lets users download all the MP3s they want, with zero usage restrictions, for $9.99 a month on a one-year subscription.

But neither Vivendi's Universal Music Group nor any other major label sells music on this site, leaving it to independent and minor labels. If these operations, with far fewer resources than any of the majors, can make a go of selling unrestricted downloads, why should it be so hard for their larger competitors? How much longer will it take these companies to listen to what their customers are trying to tell them?

Living with technology, or trying to? E-mail Rob Pegoraro at [email protected].



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