The RIAA Lawsuits: Alternative Approaches and Collateral Damage

I keep hoping that the battle between the downloaders and the divas will end soon ... but it doesn't look promising. But my perspective is probably a bit different from that of many people because I don't listen to that much music--I'm more of a books-on-tape or university-lectures-on-CD-ROM fancier. No, this battle bothers me because I know that the copyright wars will ultimately affect not just music as intellectual property but software and books as intellectual property, and that interests me very much. I fear that we'll end up shooting at the music pirates and hitting network and computer support people instead.

Let's review the conflict's basic elements. People who create valuable intellectual property, such as books, music, articles, and software, deserve compensation for their talent and effort. But modern technologies let us, or sometimes require us, to store that intellectual property on digital media. Most digital media allows for fast, cheap, and perfect copying. Add the ubiquity and relative anonymity of the Internet, and you have a content-creator's nightmare and a content-consumer's paradise, assuming that the consumer doesn't care whether the creator gets paid.

The part of the download wars that gets the most ink is, of course, music piracy. The Recording Industry Association of America's (RIAA's) latest attempt to hinder illegal music sharing involves finding and suing particularly heinous pirates. In theory, someone can be fined up to $150,000 per stolen item, so 10 songs could involve fines of $1.5 million. I don't know of any case in which someone has collected the full $150,000, but even being fined one-tenth of that amount would slow down all but the most determined pirates. Reports this week indicate the RIAA has secured 871 subpoenas that it will serve to suspected megapirates.

As you might imagine, this approach isn't making the RIAA popular among the general public. But members of the recording industry do have the right to do this--ever since President Clinton signed the Digital Millennium Copyright Act into law in 1998. I suspect the lawsuits will slow down the thieves, but the suits won't attack the root cause. Here's what I mean.

Long before Napster and the RIAA started making headlines, PC software buyers rejected copy protection on software because it added complexity and unreliability to the cumbersome processes of installing and maintaining software systems. By 1985, few major computer products had copy protection. But copy protection is returning slowly, and people aren't complaining too much because now the software vendors have an excuse--the high visibility of large-scale piracy enabled by Internet file-sharing systems. But copy protection isn't the ultimate answer to the intellectual property problem. This problem can be truly fixed only by changing people, not machines.

I talk a lot with people who steal content--mostly music and software--because I make a good part of my income from books, articles, and technical lectures on audio CDs, and these folks' motivations interest me. I ask them how they justify this theft, and I hear many of the same reasons that I'm sure you've heard: Microsoft and Metallica have plenty of money already; I can't afford the content; I'd buy it if it were cheaper; I'm not hurting anyone; and the recording industry keeps all the money and the artists get nothing. (Anyone who thinks that music is too expensive should look at, which launched this week--79 cents a song.) The pirates' reasons are self-serving and I'm never surprised to hear them. But what does surprise me is the response I hear from nearly one-third of these people, who look at me in puzzlement, as if to say, "What's the big deal?" That's the part that concerns me.

It worries me because a sizeable class of people seem to see copyright violation as roughly the equivalent of driving 56 mph in a 55-mph zone. I'm tempted to call this group of people "The Napster Generation," but the stance isn't strongly connected with any particular age group. In the end analysis, our society uses shame, guilt, embarrassment, and fear to establish and enforce rules and mores, and these folks feel no guilt, embarrassment, shame, or fear over their actions. Even if the RIAA successfully prosecuted and fined a big downloader millions of dollars, the downloader probably still wouldn't feel guilt, embarrassment, shame, or fear; heck, he or she would probably become famous, and hundreds of people would contribute to relief funds for the downloader.

The problem with the RIAA lawsuits is that even if the RIAA succeeds, it'll have succeeded by using fear. Don't misunderstand me; I agree that RIAA's got the right to pursue lawsuits of this kind. But I don't think they attack the long-term problem--making the millions of members of The Napster Generation understand that downloading intellectual property is wrong.

Attacking that long-term problem is the toughest task that the RIAA or Microsoft or Touchstone Pictures or any other content creator faces. That's why I wish that all the big content creators would adopt a more education-based approach for dealing with the problem. Changing the public's minds is difficult, but I've seen it happen a few times in my lifetime. For example, when I was a kid, New Year's Eve meant that everyone would get massively drunk and drive home. Government and industry groups worked to change people's minds about drinking and driving--and had great success. Sure, drunks are still on the road, but not nearly as many as 25 years ago.

So how do we move the masses? One could imagine subplots within movies, books, and television shows about someone creating a great song, software, or movie, then investing time and money on the chance that this artistic work would provide the income to produce some much-needed change in the artist's life--only to see the artist's hopes dashed when someone steals and distributes the work to the world. Maudlin? Sure, but no more maudlin than any of the other formulaic types of victims--the artist robbed by a large corporation is a well-worn example. Why not the story of the artist robbed by the unthinking masses?

I honestly don't know how to bring about a sea change in people's feelings about intellectual property. But without that change, all of the Digital Rights Management (DRM) technology in the world won't stop piracy. As long as copy protection is a game, then cracking or bypassing any technological answer becomes a fun challenge rather than an act of theft. As a result, we'll see an escalating technological war of pirates versus content providers that'll eventually require you to give your PC a DNA sample before you can start it up in the morning. A major part of the RIAA's antipiracy campaign was to force Verizon, the pirate's ISP, to reveal the pirate's name. The RIAA knew the IP address of the pirate, but not the name; eventually the court agreed, and a little bit of Internet privacy disappeared. Over the years, government intelligence agencies have wanted the right to listen to our electronic conversations. Do you want to bet that "the need to fight piracy" will end up as a convenient excuse for trimming away at Internet privacy? I have this nightmarish vision of Windows Server 2010 being shipped with a legally mandated "Setup the FBI Intranet Wiretap Wizard."

If I could talk to the pirate community, I'd say, "MP3 swappers, consider this: You might be getting free content now, but what you ultimately might be doing is giving the government an excuse to snoop on your every communication, whether voice or data. Is free content really worth it?"

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