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The File Swapping Fiasco
by Steven D. Laib, J.D. M.S.
30 July 2003Kazaa

Copyright law states -- with what some will suggest is highly twisted logic -- that while you may own the CD, you don’t own what’s on it.

It seems that the Recording Industry Association of America, or RIAA, has decided to crack down on people suspected of sharing music over the Internet.  One would think that with 60 million people estimated to be using file sharing services, for any number of reasons, the task would be daunting.  Apparently, the RIAA doesn’t think so.  According to free market advocate Ilana Mercer, they are getting approximately 75 subpoenas approved each day.  Of course, if they investigated this many users each day it would take over two thousand years to cover all 60 million, but they appear more interested in developing user fear from a few high profile cases.  I’m not sure it will work.  After all, the IRS does essentially the same thing and it’s a dead certainty that a lot of people still cheat on their 1040 when they believe they can get away with it, and many do get away with it. 

The whole music industry vendetta started with Napster; originally the most popular of the file sharing tools.  When Napster was squelched by a lawsuit, different systems appeared.  Instead of having a central file index, as Napster did, the new software searched individual users files until it found a match to download.  Since the courts have ruled that this method, known as peer to peer, exempts the software manufacturer from liability, the only remaining options are to give up or go after the individual users. 

Total free market advocates have taken the position that this is an invasion of user privacy, which is supportable.  After all, the RIAA should not be allowed to go on a fishing expedition any more than the police department should, and if homosexuality is protected by privacy, why not how you use your computer.  Additionally, because of what is involved here, it might be reasonable to suggest that there is a violation of the 4th amendment protection against unreasonable search and seizure going on.  It may be a civil matter, but if it were in my court I would certainly entertain such an argument.  Particularly since the RIAA's attitude, if taken to the maximum potential, could amount to unnecessary and avoidable harassment of a large sector of the public. 

Of course, the reason for all of this activity is money.  Money is involved because works being swapped are copyrighted.  The singers, musicians and songwriters all want their cut of sales profits.  But it is likely that the companies producing and marketing the music are even more interested.  They stand to make an even bigger profit, unless I am very much mistaken.  Reproducing music CD’s doesn’t cost that much.  My handy computer supply catalog advertises bulk CD’s for twenty-five cents each.  A record producer, or for that matter AOL, can probably get them for less when buying thousands.  How else could AOL afford to send so many free disks?  The real costs are elsewhere, and include the royalties paid to the performers.  Copyright law asserts that because they performed the music, and in some cases wrote it as well, they have the right to profit from recordings of that music in the same manner as an author would profit from sales of a book he or she wrote.  At the same time it asserts, with what some will suggest is highly twisted logic, that while you may own the CD, you don’t own what’s on it.

Copyright law would have no reason to exist if we had no way to mechanically or electronically reproduce these kinds of works.  If someone sat down to handwrite a copy of Dante’s Divine Comedy it seems reasonable for him to profit by the amount of work it would take.  Of course, this was exactly what was done 700 ears ago when Europeans did not have printing presses.  But copyists could only turn out a very few editions.  The printing press changed all of that.  In a strange turn of events, on one occasion when a stack of mechanically printed Bibles arrived in Holland the townsfolk refused to accept them, believing that such identical copies could only be the work of the devil.  Today, we generally accept new technology without question, and we use it just as rapidly as we can get up to speed with it. 

In this age of technology, if someone were to scan the pages of a best seller into a computer, print it and then sell the results would it be proper? Is it different from doing the same with music recordings?  Consider that a performer can make money from tours, music videos and sales of promotional items.  That’s why the Grateful Dead created such a flap about the unauthorized t-shirt salespeople a few years back.  An author expects to make money primarily from selling books.  Those who get movie and TV deals are major exceptions to the rule. 

Take another example:  If someone copied all of the columns posted to their favorite internet commentary site and published them in book form, would it be proper for them to get the profits?  After all, they didn’t write anything.  They just did the compilation.  Shouldn’t the authors get something?  Without them there would be nothing to compile. 

The current problem is a logical child of electronic data storage and the recording of music in CD form.  People soon found out that they could beat the system and the system didn’t like it.  It didn’t move quickly to encrypt recordings or incorporate a licensing fee into the sales price to cover potential lost revenue.  Each of these solutions would be simpler than going through the courts.  Apple Computer may be on the right track with its iTunes store, where you can buy music for $0.99 a track.  It seems like a pretty good solution.  You don’t have to buy a full CD to get the one tune you want and the price is right, too. 

But there’s another problem.  Apple and other on-line music sales entities generally concentrate on what is essentially new or recently produced music.  They also tend to stock only recognized recording stars.  Let’s take the example of someone who is looking of for a recording of Dick Dale’s “Spanish Kiss,” recorded in the early 1960’s.  It might be available on a vintage vinyl LP, if you can find one, and the price may be outrageous for all you know.  Apple’s iTunes store doesn’t have it.  I know because I looked.  And if you find a vinyl copy, what condition will it be in?  Unlike books, LP’s lose fidelity as they are played.  CD’s don’t. 

So let’s say that by using peer-to-peer software I can find that otherwise impossible to get copy of Spanish Kiss, or perhaps even less well-known recordings by, perhaps, the LA Midnighters, Sly, Slick And The Wicked or The Centurions.  (These were real bands, by the way.)  I’ve found some of them through file sharing software, but they simply don’t exist anywhere else.  If they recorded their music 40 or 50 years ago it seems crazy that the RIAA would be trying to police sharing of what is, by modern standards, ancient music.  If anything, they should be applauding.  Sharing old music from limited markets, regional bands and little known performers helps to keep musical history alive.  Things otherwise lost forever can be preserved.  Meanwhile, many of us would be willing to buy these recordings if they were available.  The RIAA is contributing to the problem by not putting everything they have on sale.  In an age of electronic storage it should be easy to do.  Alvin Toffler predicted this kind of marketing 25 years ago.  Haven’t they read “The Third Wave?”

Finally, maybe we should consider the problem from another angle.  Maybe the people who are swapping so much new music on the Internet like the music, but just not enough to pay the price they are being charged.  It’s a good question that should be brought to the discussion table.

Steven Laib is a practicing attorney.

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