How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties

Anger: lawsuits, threats and propaganda

1 Leave a comment on paragraph 1 0 As Kübler-Ross argues, the second stage of grief is characterized by anger, which in the case of medical patients can be “displaced in all directions and projected onto the environment at times almost at random.”[1] This has been true of the music industry as well, which responded to the popular emergence of digital music with a wide array of threats, accusations and lawsuits aimed at virtually everyone involved in any way. Of course, neither threats nor lawsuits are new to the music business; in a way, they are the industry’s lingua franca and modus operandi. But both the volume and the range of targets significantly expanded in the digital era, especially in contrast to the period of relative peace and plenty during the two decades prior.

2 Leave a comment on paragraph 2 0 The first digital music lawsuits took place in June, 1997, when the RIAA and its constituents sued three noncommercial “internet music archive sites,” which allegedly hosted MP3s of music controlled by the major labels, available for free download. Although all three web sites were shut down by their publishers once legal action was taken, and even though the degree of market harm and potential amount of damages to be recovered were insignificant, the plaintiffs in the case acknowledged that the point was, as RIAA chief Hilary Rosen told a reporter at the time, to obtain a court “decision affirming the rights of copyright owners.”[2]

3 Leave a comment on paragraph 3 0 This was the first drop in what would soon become a deluge of litigation against any internet sites and services hosting or facilitating access to major label content, including high-profile lawsuits against innovators like music locker service MP3.com, peer-to-peer file sharing service Napster, and internet radio pioneer LAUNCH Media, as well as countless other, less celebrated defendants. In the meantime, a 1998 revision to copyright law called the Digital Millennium Copyright Act (DMCA; to be discussed in greater detail in Chapter 9) gave record labels and music publishers the power to issue “takedown notices” to any site or service they believed were violating their copyrights. As law scholars Jennifer Urban and Laura Quilter have demonstrated, these takedown notices, which require no evidence or judicial oversight and entail a difficult appeals process, are routinely abused by copyright holders “to create leverage in a competitive marketplace, to protect rights not given by copyright . . . and to stifle criticism,” while failing to adequately protect copyright in many legitimate cases.[3]

4 Leave a comment on paragraph 4 0 Wielding the DMCA in one hand and the threat of costly litigation in the other, the music industry effectively shut down hundreds or thousands[4] of independent web publishers, software developers and service providers in the early years of the new century. There is little question that many of these sites and services were providing their users with major label music, or the means to access it, without a license. But they were also doing the socially and economically valuable work of exploring the capacities of emerging technologies, pioneering new business models, and developing the rudiments of 21st Century musical culture. A great many of them even sought licenses from the labels and publishers, but were either rebuffed or offered rates that quickly would have put them out of business. To contemporary observers, the music industry’s strategy was clear. As the LA Times (normally a great sympathizer with the content industry’s perspective) described the scenario in a 2001 article, the “barrage of lawsuits by record labels” had “hampered the Web-based companies’ innovation and growth.”[5]

5 Leave a comment on paragraph 5 0 The music industry’s legal assault wasn’t limited to online sites and services; it also attempted to shut down or intimidate consumer electronics manufacturers, and consumers themselves. As I mentioned briefly above, the industry attempted to stem digital music usage by suing the manufacturer of the first portable MP3 player, Diamond Multimedia. Unlike most of the industry’s claims against content and service companies, this lawsuit was unsuccessful, establishing a legal precedent that copying music from a hard drive to a portable device constituted a “personal use,” and was not a right the music industry had the power to grant or withhold.[6] Notwithstanding this ruling (or perhaps in response to it), the Disney Corporation’s CEO Michael Eisner testified before Congress in 2002, arguing that the “Rip. Mix. Burn.” advertising campaign behind Apple’s first-generation iPod was tantamount to telling consumers “that they can create a theft if they buy this computer.”[7] Eisner’s aim in this case was to convince Congress to pass new legislation undermining the Diamond precedent, requiring all consumer electronics and computer manufacturers to integrate copy protection into their devices, thereby preventing any unsanctioned uses (including, presumably, “fair uses”) of any music or video whatsoever. While the industry was unsuccessful in this particular campaign, its fantasy of total control over the distribution and uses of all content has persisted over the past decade, and has led to some very problematic developments, as I will discuss later in the book.

6 Leave a comment on paragraph 6 2 Of course, the music industry hasn’t limited the targets of its litigation to other businesses. In a 1999 interview, RIAA chief Hilary Rosen pledged not to sue individual music downloaders, arguing that “it doesn’t seem practical. It’s virtually impossible to do . . . Besides, I have very strong views about privacy, so I’m not going to start doing it.”[8] Despite these very good reasons, the RIAA began suing alleged music downloaders less than four years later, shortly after Rosen stepped down and ceded the reins to veteran Republican Party operative Mitch Bainwol. The lawsuits, which targeted at least 35,000 Americans, including a significant number of children, elderly, disabled and deceased people, continued at least until the end of 2008, when the RIAA announced it would discontinue the strategy (although there is evidence that the industry continued the practice at least until 2010[9]).

7 Leave a comment on paragraph 7 0 These lawsuits alone suggest that the music industry views its customer base with a degree of suspicion bordering on contempt. Yet when viewed in combination with industry rhetoric claiming its own mission as analogous to the civil rights movement[10] and comparing unlicensed digital music users to shoplifters,[11] drug dealers and terrorists[12] (no mere idle rhetoric, considering that the film industry and the FBI invoked the Patriot Act to pursue a fan of the TV show SG-1 for allegedly infringing copyrights on his website[13]), a larger narrative emerges. The music industry, in its anger, has apparently cast itself as the hero in a tragedy of epic proportions. Like Michael Caine in the film Zulu, the industry believes itself to be the last bastion of civilization, outnumbered in a wilderness redoubt by a malevolent horde and firing endless volleys into the throng in a last-ditch effort to preserve itself. Of course, like the actual Zulu warriors of the 19th Century, many of us cast in the role of “savages” are more likely to see ourselves as the protagonists, defending our ancestral homeland from our would-be colonial overlords.

8 Leave a comment on paragraph 8 0 [1] Kübler-Ross, p. 64.

9 Leave a comment on paragraph 9 0 [2] Jeffrey, D. (1997). Downloading songs subject of RIAA suit. Billboard, 6/21/97,  p. 3.

10 Leave a comment on paragraph 10 0 [3] Urban J. & Quilter, L. (2006). Efficient Process or “Chilling Effects”?: Takedown Notices Under Section 512 of the Digital Millennium Copyright Act, 22 SANTA CLARA COMPUTER & HIGH TECH L.J. 621: 687

11 Leave a comment on paragraph 11 0 [4] It’s difficult to establish the exact number, as DMCA takedown notices are not public.

12 Leave a comment on paragraph 12 0 [5] Healy, J. (2001). Online music services besieged. Los Angeles Times, 5/28/01

13 Leave a comment on paragraph 13 0 [6] 180 F.3d 1072 (9th Cir. 1999)

14 Leave a comment on paragraph 14 0 [7] Boliek, B. (2002). Mouse grouse: Dis boss lays into computer biz. The Hollywood Reporter, 3/1/02.

15 Leave a comment on paragraph 15 0 [8] No author. (1999). MP3’s biggest threat. Maximum PC. September, 1999. [http://books.google.com/books?id=FwIAAAAAMBAJ&pg=PT40]

16 Leave a comment on paragraph 16 0 [9] See, for instance, Arista Records, LLC v. Doe 3, 604 F.3d 110 (2010)

17 Leave a comment on paragraph 17 0 [10] Rosen, H. (2003). Prepared remarks of Hillary Rosen, Chairman and CEO, Recording Industry Association of America (RIAA). Downloaded from http://www.riaa.com/newsitem.php?news_year_filter=&resultpage=54&id=870A2E2F-1415-5740-F001-252D26B52493

18 Leave a comment on paragraph 18 0 [11] Meza, P. E. (2007). Coming attractions?: Hollywood, high tech, and the future of entertainment. Stanford, CA: Stanford University Press.

19 Leave a comment on paragraph 19 0 [12] Van Buskirk, E. (2008). RIAA training video leaked onto torrent sites. Listening Post. Downloaded from http://www.wired.com/listening_post/2008/02/riaa-training-v/

20 Leave a comment on paragraph 20 0 [13] Doctorow, C. (2004). Stargate fan-site operator busted under anti-terrorism law. Boingboing. Downloaded from http://boingboing.net/2004/07/26/stargate-fansite-ope.html

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