For those of you following the RIAA lawsuit, this article notes that one of the evildoers the RIAA is suing for millions is a 12 year old girl.
Seeing the RIAA get robbed by Napsterites is, well, kinda like watching those movies where someone steals millions from the mob. Does anyone feel bad for the mob, watching those flicks? The RIAA has spent years robbing musicians and gouging consumers; they don’t have much moral credibility when they whine about their losses nowadays.
Sure, stealing is wrong, but it’s hard to muster much sympathy for a burglar whose pockets have been picked.
P.S. To cut off a predictable response: No, I don’t download music from the internet. Too much bother for too little reward, or so it seems to me – but then, I’m not 12. When I was 12, the internet didn’t exist yet – but I did have a collection of hundreds of albums tranferred to casette tapes and traded between friends.
P.P.S. I’ve always liked Janis Ian’s articles on the subject: The Internet Debacle and Fallout.
UPDATE: Will Baude thinks the comparison to the mob is “a little over the top.” With all respect, Will, I think “criticism by way of over-interpreting metaphors” is beneath you. Most folks understand that a metaphor comparing “A” and “B” isn’t the same as saying “A” is identical to “B” in every respect.
Will writes:
Let me ask some different (and I think more relevant) questions, Will.
Do I think it’s immoral for a company to use a vastly superior bargaining position to exploit much poorer people, and thus gain ownership of work that the company didn’t create and doesn’t deserve ownership of? Absolutely. Do I think that music companies have taken advantage of their power and position to take virtually all of the profits from record and CD sales, giving an unfairly low share to creators? Absolutely. Do I think CD prices have been artificially inflated by collusion between music companies? Yes, I do. (And that’s what “gouging” means, Will.)
When two parties negotiate – on one side, corporate music factories, who have a virtual monopoly over music distribution in this country; and on the other side, young, hungry musicians who are desperate to break into the music industry, and who have the choice of doing it the industry way or never doing it at all – the result is going to be vastly one-sided, unfair contracts.
Do I care when the exploiters who have benefited for years from this dreadfully unfair system get robbed? No, I don’t. Frankly, they deserve every bad thing Napster has done to them and more. Given all the horrible things going on in the world, that a bunch of leeches like the RIAA is being robbed isn’t important enough to rate my concern.
I also wrote about these issues a bit over a year ago, and then again in January..
A little over the top, don’t you think? A response: http://baude.blogspot.com/2003_09_01_baude_archive.html#106322164886334783
So should they just let her get away with sharing files because she is only 12? Then what if she were 15? or a single mother? The same rules should apply to everyone.
What is often forgotten in these cases are that the people sued aren’t just downloading files, they are sharing them. This allows other people to download them, and potentially costs the artists (and the music labels) a lot of profit.
The issue of CD prices etc. are in my eyes different issues than P2P filesharing.
Kristjan, the same rules don’t apply to everyone. For instance, we have juvenile courts, where the rules aren’t the same as they are in adult courts.
When I was a kid, I not only made cassette copies of friends albums, I allowed other friends to make copies of my copies. In retropsect, was this the right thing to do? Maybe not, but being sued for millions of dollars would have been a punishment wildly disproportionate to the “crime.”
To potentially cost artists money, artists would have to make significant money from CD sales. With a few exceptions (like Ani DiFranco), this doesn’t happen – the vast majority of recording artists make virtally no income from album sales, because it’s all eaten up by the labels. (The real money, such as it is, comes from concerts).
Amp, I am at a disadvantage here when coming to debating US juvenile courts. It’s not a subject I know too much about.
I do have the impression that civil lawsuits are the same no matter the age though, but I might very well be wrong.
Cassette copies are fair use, but of course it is debateable if copies of copies are allowed (they are by Danish law when we are speaking cassettes, but not when we are speaking CDs).
While you are right that the labels are the ones that earn most money from albums, I can promisse you that if the labels don’t earn the cost of an album (including the pay to the artist), then they won’t make any more albums by that artists, thus removing his or her chance of future profit (be it from the albums or the concerts).
As an aside, for legal downloadable free music, check out the Danish site http://www.viatone.com
Kristjan, you’re assuming that every illegally-downloaded song is lost revenue for the record companies. That’s not the case. Just because someone downloads a song does not mean that s/he was planning on buying it, or would ever buy it if buying were the only option.
Copyright infringement is NOT stealing.
On further thought, maybe you already know that. But it’s a knee-jerk reaction on my part; I’ve heard too many people accusing downloaders of “stealing” from record companies, and they’re just not.
Whether they’re depriving them of profit is another matter–one that still hasn’t been resolved yet.
Actually, it can be just the opposite. Janis Ian, in the essays I linked to, argues just the opposite: free downloading increases her income, by increasing her fan base and leading more people to buy her albums.
I think Janis has got a point. I don’t buy albums by artists I’m unfamiliar with, by and large; if I can’t listen to their work in advance (usually by listening to a friend’s CDs, nowadays), I’ll never buy their work at all.
I certainly don’t think that the music industry will cease to exist if the current method of distribution (which is all the RIAA represents) disappears.
Again what they are sueing people for is not downloading per se, it’s sharing so other people can download – there is a difference.
And Hestia, I am aware that it is not stealing, and that it is still up for debate if they are deprived of profit, but (and this is important) it is the right of the copyright owners to make restrictions on how their copyrighted material is distributed.
One might not think this is right, nor fair, but that’s how the rules are now.
Also, Krisjan, you’re right (as far as I know) that in civil court juveniles are treated the same as adults. But should they be? Criminal courts have already established the moral principle that children should not be held as responsible for their actions as adults are. Why shouldn’t that principle apply in civil courts, too?
Ah, but Amp, that is an entire different debate, and one I would be happy to go into, but not tonight (it’s nearly 11 pm here). In short, my answer is perhaps, but probably not.
Krisjan, I don’t question that “that’s how the rules are now.”
I just question if those rules are moral, are good for creators or listeners, and if they should be retained. In all three cases, I think the answer is “no.”
Yeah, sorry Amp, I more or less put words into your mouth. Too often I run into the “copyright is immoral, so people can break it” argument, but that wasn’t what you put forth.
I belive that the current rules needs som adjusting, but that copyright is a good thing (even though I find the lifetime of intellectual property to be too long in the US). I don’t have any suggestion of how to correct the current rules, and in some countries (like Denmark) the corrections are heading the wrong way. I might have some better ideas tomorrow, when I’m not quite as tired, but it is doubtful.
Ps. there is a ‘t’ in my name.
It’s a good point that filesharers aren’t really “Stealing” either, though they’re definitely engaged in some sort of illegal property use of contract breach. But as to the substantive points of Amp’s update, I’ve posted a response to my original post. Also included below:
UP
**********
Let me ask some different (and I think more relevant) questions, Will.
Do I think it’s immoral for a company to use a vastly superior bargaining position to exploit much poorer people, and thus gain ownership of work that the company didn’t create and doesn’t deserve ownership of? Absolutely. Do I think that music companies have taken advantage of their power and position to take virtually all of the profits from record and CD sales, giving an unfairly low share to creators? Absolutely. Do I think CD prices have been artificially inflated by collusion between music companies? Yes, I do. (And that’s what “gouging” means, Will.
When two parties negotiate – on one side, corporate music factories, who have a virtual monopoly over music distribution in this country; and on the other side, young, hungry musicians who are desperate to break into the music industry, and who have the choice of doing it the industry way or never doing it at all – the result is going to be vastly one-sided, unfair contracts.
Do I care when the exploiters who have benefited for years from this dreadfully unfair system get robbed? No, I don’t. Frankly, they deserve every bad thing Napster has done to them and more. Given all the horrible things going on in the world, that a bunch of leeches like the RIAA is being robbed isn’t important enough to rate my concern.
***************
Okay. Ampersand’s new arguments are far more interesting than the previous ones, and far more nuanced. Note that the accusation is no longer that RIAA has been engaged in literal “robbery” and thus deserves to be counter-robbed. Now the argument is that RIAA’s unfair business practices, and all the other horrible things going on in the world, mean that one shouldn’t be bothered when file-sharers “rob” musicians and the RIAA of royalty payments.
In fact, there’s a definite tone of Marxist concern (not that there’s anything wrong with that) in the above– the claim that since the musician is being separated from the fruits of his labor the system is horribly unfair, etc. etc. etc. Anyway, Ampersand’s claims include:
1: that it’s “immoral for a company to use a vastly superior bargaining position to exploit much poorer people.”
2: “that music companies have taken advantage of their power and position to take virtually all of the profits from record and CD sales, giving an unfairly low share to creators”
3: CD prices have been artificially inflated by collusion between music companies?
I’m glad that Ampersand has made these claims more explicit, because now I can explain why it is I feel one way about those who rob the mob (I don’t mind them) but differently about those who “rob” RIAA (I don’t feel the same sense of vigilante joy). While Ampersand may think that one shouldn’t use one’s market muscle to extract the terms the market will bear, I’m not so convinced. RIAA, remember, actually provides benefits to people with whom it signs contracts– our bajillion dollar entertainment industry is highly dependent on marketing and reduced transaction costs and lots of other things. There’s a tendency to deride agencies and the like as useless middle-men, but to a large extent American is a country that depends immensely on those middle-men to make the system work. After all, nothing stops an independent artist from producing her own CD (the equipment to do it is pretty cheap) and selling them herself at concerts, taking out her own advertisements, and all the rest. In fact, a lot of indie artists do just that. But these artists rarely “make it big” without signing with one of the evil exploitative record companies. Why is that? Because the evil exploitative record companies have something to offer in exchange. The networks, marketing know-how, and other “middle-man” abilities that it usually (but not always) takes to become a big star.
Both claims 2 and 3 are highly empirical ones. I have no idea whether some sort of formal conclusion to keep CD prices up exists among the record company, and I don’t why Amp thinks there is one. CDs are expensive, sure, but they also sell relatively well, the latest RIAA whining notwithstanding. Further, since the CD market is one of monopolistic competition rather than of oligopoly, I think it’s pretty unlikely that any formal collusion would be that successful. [The monopolistic competition v. oligopoly question depends on how much one thinks that the products are interchangeable or substitutable. The market for books or restaurants, for example, is one of monopolistic competition– a bunch of similar but different products meaning that I’m not going to buy “The Devil Wears Prada” instead of “The Substance of Style” just because it’s a little cheaper, but if the TSoS went up to $40.00 and Devil dropped to $4.00 I’d certainly think about it. The market for airplane tickets, on the other hand, is oligopolistic. There are few enough firms that it’s possible for them to collude and price-fix (I have no idea whether or not they do) but when I buy a ticket I usually just grab whichever one Orbitz tells me is cheapest.]
Now, these allegations against the RIAA might well be true. I don’t really know whether or not they are or how Ampersand knows. But even if a company is engaged in monopolistic business practices (if what Ampersand claims is true, a big antitrust suit against RIAA would be very successful), there’s a serious question of whether or not it should bother us when people pursue vigilante justice against the company. I don’t particularly have a problem with Microsoft, but even if I did, I wouldn’t counsel people burning copies of Win XP in revenge for the high purchase price.
One reason for this is the rule of law. But more importantly, I think antitrust situations usually lead themselves to difficult questions of proof and nuanced economic analysis. I simply don’t think a bunch of college kids, or me (a college kid myself) have any good way of knowing whether RIAA is being particularly monopolisitic and exploitative, or is just about as exploitative as your average big corporation. If you’re a hardcore leftist who thinks that all big corporations are so exploitative that one can rob them just like one can rob the mob, well that’s one thing. But I’m not, so I think turning a blind-eye to robbing illegal monopolies is like a bad idea. Your average file-sharer lacks, as we say, the “institutional capacity” to know who is and isn’t an illegal monopoly.
After all, if what Ampersand says is true– that there’s a conspiracy to keep CDs between $12-20 each, and that corporate music factories have such illicit power that they can get virtually all the profits– why hasn’t there been a big counter-RIAA lawsuit lately? I think the headline would be great: “26,100 musicians counter-sue RIAA”.
So RIAA may not be Ben and Jerry’s but I don’t think that it’s the Corleone family either. I don’t even think it’s Standard Oil, but the place to find out isn’t the streets of Napsterville; it’s a court of law.
[Incidentally, Ampersand accuses me of “criticism by way of over-interpreting metaphors,” writing:
Most folks understand that a metaphor comparing “A” and “B” isn’t the same as saying “A” is identical to “B” in every respect.
True enough. But my claim isn’t that “A” (the mob) is different from “B” (RIAA) in some small respect. My claim is that A and B are sufficiently different in the fundamental ways that matter here that one can’t simply extend the right to rob the first into the right to rob the second. That argument takes secondary reasons, like the one Ampersand has now offered up (though I still find those unconvincing, as I’ve written).]
Some notes in response to Will:
1)
I believe that the record companies did, in fact, STEAL from artists. Especially in the 40’s, 50’s & 60’s. They stole the rights to not only the albums, but the songs for perpetuity. There is a reason that many lawsuits have been filed & won by artists who were ripped over over a period of decades.
2)
Yes, collusion to fix CD prices at unreasonably high levels has been established. The Fed Gov (I think) brought suit and a settlement has been reached. The FTC has found charges of violating anti-trust laws to be true. Check it out. The record companies will be lowering their prices starting in October. Of course they get to keep all the illegal profit they made over the last 15 years, so…..
The RIAA now blames file sharers for their loss of business, but is this really the case. I used to buy tons of records & CDs. When I was a kid, albums went for between 6 and 8 bucks for the most part. In the late 80’s & early 90’s CDs went for 8 to 12 dollars. And I used to buy at least one a month. Then in ’96 or so I noticed that I couldn’t get a new CD for less than 16$. I have bought fewer than 5 new CDs since then. Perhaps that has something to do with their decline in sales? I can’t be the only one who stopped buying.
So in summary after all my rambling:
The RIAA has been found to have practiced collusion to artificially inflate CD prices. This is documented fact. A quick internet search should yield all the proof you need (try RIAA price fixing). The RIAA has been found to have stolen from artists over a period of decades. The RIAA may have lost sales by pricing their product too high.
And, no. I have never illegally downloaded music.
There may indeed be persuasive philosophical arguments as to why copyright infringement should not be considered stealing. As a matter of federal law, however, there are certainly some circumstances where copyright infringement amounts to a crime and may be punishable as such. Obviously, the RIAA cannot bring criminal cases, and I would suspect that there are not many prosecutions under this law in any given year, but it is out there.
Jake, my google search didn’t turn up any RIAA price-fixing losses, but I didn’t look very hard. I believe you that they’re out there, but if you could find one, I’d appreciate it (I want to be able to cite the evidence when I need it).
As to the CD price increase, one thought.
According the the Bureau of Labor Statistics and the Consumer Price Index(ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt), the CPI in 2003 is 179.9, while in 1990 it was 130.7 and in 1985 it was 107.6.
This means that $16 today is equivalent to $11.62 in 1990 and $9.60 in 1985. That might help explain the illusion of recent price-gouging, though it’s certainly possible that the music conspiracy has been going on for over twenty years.
Will, try this one (and forgive my HTML incompetence):
http://www.mndaily.com/article.php?id=3590
I should say, as a lover of CDs, I did download songs off of napster, and as a result, I bought at least 10 albums from artists I otherwise wouldn’t have (such as Muse, Remy Zero, Elwood, etc.). This is my problem with RIAA’s lawsuit. If they had any vision, they would use this new technology to make tons o’ cash, instead they see it as a threat and spend their money trying to coerce people into never using the technology.
As an (overly-simplified) historical analogy, this is like how movie studios treated the advent of TV. Some studios, like Warner Brothers, saw TV as a way of increasing their influence onto a new medium, thus selling the rights to their films to television stations, and hence made bundles of money and became even more powerful than before. Others, like RKO, saw TV as a threat to their product, denied all access to their films from television studios, and soon went bankrupt.
So thus it is with RIAA. Instead of finding out how to profit from this, they instead sue 12-year-olds for millions of dollars while punching nuns and kicking puppies. Truly they are the worst evil ever conceived on the face of this planet. No, I’m not overreacting.
Interesting, thanks. Do you know of any cases where the music companies were actually found guilty (or made concessions of guilt as one of the terms of settlement?). Also, do you know of any estimates for what the “market” price of an unfixed CD is supposed to be?
I think I’d say child, not girl. Her gender doesn’t seem to be part of the story.
Jake: Here’s the CD Settlement Web Page – the main recording companies in RIAA are the defendants, along with several large music retailers, for alleged price-fixing on CDs. The court approved a $67,375,000 settlement to plaintiffs and a $75,700,000 donation to non-profit and government organizations of recorded products.
Of course, the settlement probably has a clause in which the defendants deny liability. Usually, that clause is a crock.
File sharing is not theft. Thing is, that’s all RIAA has characterized it as in their PR and lawsuit campaign; it’s more like a breach of contract, similar to keeping a cat in your apartment without paying a security deposit. It’s a technical breach of contract with uncertain damages.
I would love to see someone who got sued by RIAA fight back with an unclean hands defense, and possibly draw in an artist who was cheated on royalties. Amp mentions artists of the past whose royalties were stolen, but intellectual property companies still play fast and loose with their payments – and they always end up underpaying the royalty recipient! Imagine that!
Oh, and Jack and Meg White are a bit richer because of Kazaa, so are Corin Tucker, Carrie Brownstein, and Janet Weiss (Sleater-Kinney) as well as a number of other bands I discovered through file-sharing.
I think those who take the “file sharing is theft” argument have an understandable concern,but do not truly understand how unique industries that depend on creative product are. Especially music.
How does music reach consumers? Through being performed, or played on a recordable/broadcasted medium. Very often, it reaches them—legally— without any effort *or purchase* on their part, through radio, at a friend’s party, as part of a movie’s soundtrack, or out of a passing car as they walk down the street. Unlike, say, a garden rake, which a consumer must seek out and purchase.
Therefore, *prior exposure* is key to selling music; listening to a song is both an advertisement for that song (or the CD it came from) and an act of consumption.
What has not been studied, and what I suspect is truly happening, is the way that file-sharing/cd-swapping is acting in the way that radio does: as advertising for the other songs/cds that the same artist has produced. No one thinks that playing songs on the radio reduces an album’s sales. Or that putting a book in a library keeps people from buying their own copies.
Let’s take this out of the Internet realm for a minute….
Now let’s suppose you make a tape of a song you like off the radio. Why would you then buy the CD? Better sound quality, getting the complete album, and because you want the CD artwork that adds to your appreciation of the album.
The same things apply to file-sharing. Much of the ripped files out there are not the highest quality…most people don’t have the sophisticated knowledge or software to make a really high-quality duplicate of a song (taking into account balancing, reducing noise, compression, etc.) Many times the files off of Kazaa or wherever are incomplete, or require a lot of cleaning up.
Much like a tape of a radio song. Sure you *could* make it sound like you bought the CD, but why bother? Buying it is easier, and you get a better product.
Which is why your hard-core “pirates” are mostly kids, who either don’t care about sound quality because they’re just browsing, (and who often don’t have the pocket change to buy CDs anyway, so therefore are not potential customers) or college students who have unlimited time (and perhaps a nice school-provided T1 line) to mess with downloading. The rest of us have lives, and if we have the cash, will usually pay for an album if we really want it.
There *is* piracy that cuts into record sales, much of it in China, but it mainly consists of illegal CD duplication. File-sharing has little to do with it.
If the music industry has a problem, it is not file-sharing that is at fault. There have always been bootleggers and those who were ingenious enough to get music for free if they really wanted to. Just as someone who really doesn’t want to buy books could conceivably buy a cheap copier, check books out of the library, and make their own copies. But most of us prefer convenience.
Getting a complete, high-quality album off of a P2P network? Not that convenient…especially if you’re still on dial-up like a lot of people.
Without getting into the artistic quality of what’s out there, I would say that if sales are falling, it’s much, much more likely to be due to high CD prices and a bad economy. Music is a luxury item, and price makes a big difference. Make it cheaper, and sales will go up.
by the way, if it is not clear from the email, i am advocating a complete and permanent boycott of the RIAA and a complete shift to p2p file trading networks.
this is a copy of an email i sent to the electronic frontier foundation (eff)
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In response to whether the girl should be the subject of the suit…
Perhaps it is her parents who should be the subject of the suit, especially if the child downloaded the files over their internet connection. The parents are responsible for their child’s actions, and should moniter her internet activity if for no other reason than to ensure she only visits sites they deem appropriate.
In reference to the suits in general…
It is irrelevant whether you believe the suit is immoral, or whether the industry ‘takes advantage of’ starving artists, or if the quality of downloaded files is inferior to the store bought product. The fact remains that the industry has the right to file suit, and will continue to do so until they feel they’ve goten their point across. Copyright infringement is a crime, akin to stealing by way of reduced revenues to the copyright holder. This is true whether you think they have a monopoly or ‘fix prices’ or not. If there is a case to be made regarding monopoly or price fixing it will be (and has been) brought before a court of law. This doesn’t change the industry’s right to protect their interests.
If you disagree with a law, change it. Use the system against itself.
By the way… I have downloaded music in the past, and might again. HA!