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[IP] File-sharing: A well-argued, contrarian view




Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Mon, 06 Oct 2003 10:00:53 -0700
From: Martha Baer <m.baer@xxxxxxxxxxx>


if you think others would be interested:


http://www.washingtonpost.com/wp-dyn/articles/A42279-2003Oct3.html



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PLEASE NOTE: My email address has changed; it is now m.baer@xxxxxxxxxxxx Thanks.

............................................
Martha Baer
m.baer@xxxxxxxxxxx
martha@xxxxxxxxxxxx
(415) 642 7504
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Listen, It Isn't the Labels. It's the Law

By Jeff Howe

Sunday, October 5, 2003; Page B01

First things first: I'm an unlikely recruit to go to bat for the major music labels, which is precisely what I'm about to do.

I started covering the recording industry in the late '90s, just as Napster was gaining steam. Since then, I've written about the labels' seemingly irreversible decline. For years the record biz has been its own worst enemy, resisting obvious technological improvements and blithely promoting the most awful, prefabricated, market-tested musicians while conspiring to keep CD prices artificially high.

So it was hard, at first, not to react with infectious glee when an arrogant, antiquated industry started getting its due. Napster, the original file-sharing software, was going to be the shot heard round the world, we tech journalists decided. Then Napster was declared illegal, but we were sure the next generation of peer-to-peer services would save the day. They allow computer users to access files -- including copyrighted materials -- from each other's hard drives. They would give musicians direct access to their fans, we thought, cutting out the "greedy middlemen" who make millions off the backs of struggling musicians engaged in honest, creative labor. The labels -- along with formal business attire and mandatory office hours -- had to go.

But now, just as that revolutionary fervor has spread to the public at large, which seems to view file sharing as an inalienable right, I've lost the faith.

Last month the Recording Industry Association of America (RIAA), a trade group representing the five major labels, filed 261 lawsuits against people who were using peer-to-peer services such as Kazaa and Grokster to share copyrighted material. The defendants included a 12-year-old honors student and a 71-year-old grandfather. The public backlash was swift and predictable. "We listeners need to start insisting music be about music, not about propagating the status quo and letting the fat cats eat caviar and smoke cigars," wrote a University of South Carolina student in an editorial that sounded like much of the file-sharing crowd. And in a comment to this newspaper later picked up by UPI, Wayne Rosso, the president of Grokster, said, "They [the RIAA] give Joe Stalin a good name."

The rhetoric surrounding file sharing has become so overheated that we've lost any sense of reason. To hear the current uproar, you'd think the labels were threatening to throw children's choirs into prison for performing Irving Berlin's "White Christmas." (In fact, the RIAA has been settling with defendants for a fraction of the amount it is legally entitled to demand: $150,000 per violation.) Lest we forget, distributing copyrighted material online is illegal. I see nothing wrong with an industry fighting for its survival in a manner that's morally and legally justified. Besides, we don't become indignant when pre-teens are prosecuted for stealing cars, so why now?

Of course, if the file-sharing debate has gone off the rails, the RIAA is partly to blame. The public, in my anecdotal experience, loves to hate "the labels." But the labels, as a single evil monolith, don't exist. There are five major labels -- Warner Music Group, Universal Music Group, EMI Group, Sony Music Entertainment and BMG.

All but EMI are in turn owned by media leviathans such as AOL-Time Warner. The major labels own scores of smaller ones, such as Elektra, Epic and Interscope, where much of the music is made, marketed and distributed. The people who work at the smaller labels, people I got to know while covering the music industry, are the ones now losing their jobs in droves, at least in part because of file sharing. They are not fat cats. They don't chomp cigars and relish caviar. They have much more in common with obsessed file sharers and the music lovers than they do with the lawyers and CEOs of the conglomerates they work for.

Listeners who have come to hate the labels believe their favorite artists no longer need the labels. If only that were true. Maybe Prince can afford to cast his label aside and go directly to the fans. But he did so only after becoming a household name. The vast majority of musicians will never find an audience large enough to let them quit their day jobs without a staff of marketing and promotions people who know how to book a tour, make a video and get their CDs into stores (or get their music prominently displayed on a licensed download service such as Apple Computer's iTunes Music Store). Talented, emerging artists need the labels, and because they do, so do we as listeners.

All this isn't to say that the public shouldn't be outraged by some aspects of the lawsuits. But so far, music lovers have missed the point. The real disgrace is that the RIAA was able to identify the Internet users it is now suing. To understand how, take a look at a terribly flawed law, the Digital Millennium Copyright Act (DMCA), passed in 1998. Under the DMCA, any third party that suspects copyright infringement can subpoena an Internet service provider for the names and addresses of suspected infringers. All that's required is the signature of a court clerk. That strikes me as a violation of privacy and -- because the subpoena does not require a judge's approval -- a violation of the right to due process.

But that's not all the DMCA does. It allows the big media conglomerates unprecedented control over how we use our digital media, including music, movies and books. Within a few years, every CD we buy will be "copy protected." You may only be able to copy each song once, but not play it on your MP3 player. Or, if the test-marketed versions are any indication, you won't be able to make any copies at all of the music you rightfully own. DVDs have used copy protection for years, which explains why you can't fast-forward through that FBI warning.

These technologies -- and the law that makes them permissible -- concern me far more than the recent lawsuits do. That's because they take away our rights to "fair use," a concept in copyright law that predates our Constitution and, until recently, was anything but controversial. Fair use allows a scholar writing a critique of popular history to excerpt a small portion of Stephen Ambrose's "Undaunted Courage" without asking Simon & Schuster if it's okay. Fair use gives you the right to copy a chapter from a library book for your personal use. It allows you to copy videos (the ones you've bought legally) to keep at your summer home, or to mix CDs so you can hear the music you own in whatever order you want.

Fair use allows for the fluid exchange of ideas, which we've generally considered an essential aspect of democratic society. The DMCA takes this away by making it illegal to "circumvent a technological measure that effectively controls access to a work." In plain language, this means it's illegal to break into a CD, DVD or e-book you bought, even if the reason you need to make a copy is perfectly legal.

So far, consumers haven't raised much of a fuss over the DMCA. Of course, it's a lot easier to get indignant about a schoolgirl being pilloried by a conglomerate because she downloaded "If You're Happy and You Know It Clap Your Hands" (one of the songs Brianna LaHara, the now famous 12-year-old, was sharing) than it is to get worked up over abstract concepts that don't have a lot of real world consequences -- yet. But it's no accident that those institutions we rely on to watch out for our interests as consumers of ideas -- from the American Library Association to the American Association of Universities to the Consumers Union to, natch, the American Civil Liberties Union -- support repealing or rewriting the DMCA.

And yet a lack of public awareness and congressional support has doomed various legislative proposals to reform DMCA. The exception may be two bills now before Congress. One would, among other things, require a company to file suit before subpoenaing Internet service providers for user identities under the DMCA. The other would make it legal to circumvent copy-protection technologies to make otherwise legal copies.

All of which brings us back to the lawsuits. What I'd like to see is a community of technology users -- and this includes just about all of us now -- who respect the laws that are on the books, and therefore restrain themselves from sharing copyrighted material, while agitating for the repeal of laws that threaten our protections and liberties. I'm hardly reassured by those two-thirds of American downloaders who -- according to a recent poll by Pew Internet and American Life Project -- don't know or care whether what they download is protected by copyright. If they can't be bothered to respect the perfectly reasonable provisions of copyright law, I'm hardly confident they can be relied on to fight against the unreasonable ones.

Oh, and Wayne? You can count the number of people giving Joe Stalin a good name on one hand. Most of them -- Idi Amin, Pol Pot -- are dead. Among the few still living, none, to my knowledge, works at a music label.

Author's e-mail:

<mailto:Jeffhowe@xxxxxxxxxxxx>Jeffhowe@xxxxxxxxxxxx

Jeff Howe is a contributing editor for Wired magazine.

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