By its very nature, intellectual property is something that is incredibly difficult to deal with in legal terms, because there is no way to conclusively define it or its limits. Age old debates rage on regarding a host of definitions, boundaries, claims, and questions under such a broad, ambiguous topic. When Mark Getty, chairman of Getty Images, a media company that owns a vast amount of images, famously described intellectual property as the oil of the 21st century, he was absolutely correct (Brown). Just as wars have been fought over the natural resource of oil, so will they be fought, figuratively at least, over intellectual property in the information age. Intellectual property is not a limited natural resource, but as Getty’s quote demonstrates, the content industry is doing everything they can to make it seem that way. They accomplish this in a variety of ways, many of which are unfair or at least unreasonable. Turning intellectual property, and consequently information in general, into a “limited resource” of sorts poses a serious problem for society and for the rights of the individual, but before this can be stopped, it must be clear who the perpetrators are. The content industry is a broad term used to describe the companies who own a big share of media and claim exclusive rights to that media, including music, movies, writings, and other information. In particular, the music industry is the primary one involved in the “war” over intellectual property and is a good representation of the bigger picture. There is a desperate need for the current, outdated business model defended by the Recording Industry Association of America to be replaced by a model such as the Voluntary Collective License, which both legalizes peer-to-peer file sharing, but also provides compensation for the artists. The Voluntary Collective License was brought forth by the Electronic Frontier Foundation (Schwabach 80). Such a system would set up a collecting entity that could collect a monthly fee from file sharers, who would then be able to distribute and share music files over the Internet legally and in a way that they see fit. This monthly fee would be a reasonable fee such as $5 as the EFF suggested, and it would be added onto another cost such as the ISP subscription price. Musicians would be paid based on how much their music is downloaded, which is a statistic that would need to be closely watched by the collecting entity. The Electronic Frontier Foundation, a technology activism group, is not alone in such a suggestion. Greg Kot, music critic for the Chicago Tribune, agrees with such a business model as well. In his recent article, “How $5 could Save the Music Industry,” Kot points out that not everyone in the music industry has got it wrong. The Songwriters Association of Canada is also pushing for a nearly identical model to be used, where the $5 monthly fee simply becomes part of the price of every Internet connection in the country, virtually making access to music something that just comes with the Internet (1). Even in the worst case scenario, this would serve the industry better than its current plan, with sales declining and more money being lost every year (1).
Before one can understand why such a solution is needed, the concept of intellectual property must be closely examined. Though it is not what is directly, consciously being fought over, all of the conflict regarding illegal file sharing of music stems from the issue of intellectual property. James Boyle, in the Harvard Journal of Law & Technology, points out that in American history, “intellectual property law is largely motivated by utilitarian concerns,” and it is not meant to hand out “rewards for hard work” (Boyle 2). Rather, as defined by the Constitution in the Patent and Copyright Clause, the purpose of intellectual property law is in fact “to promote the progress of science and useful arts” (Schwabach 4). One aspect that has consistently been absent in American law on intellectual property is that of “moral rights,” which Aaron Schwabach in his book Intellectual Property: A Reference Handbook describes as including the “right to protect the work from changes” and the “right to withdraw a work from distribution” (5). Schwabach contends that in the United States, copyright is an economic right and not a moral one, and that it is aimed at helping society rather than the author (4–5). Michele Boldrin and David Levine of The American Economic Review also distinguish another form of intellectual property that has not been traditionally protected under American law, which they name “downstream licensing,” when a creator of a work is able to determine what can and cannot be legally done with that work after it has been legally sold to the consumer (Boldrin and Levine 209). The music industry sees intellectual property as something they must have absolute control over, because it is everything they own, and it creates their livelihood. On the other hand, consumers and technology activists see restrictions of the legal use of products, such as technologies like digital rights management (DRM), as a direct infringement upon their rights. They believe that once they have legally purchased music or some other copyrighted work, the statute of fair use should apply extensively to what they are legally able to do with it.
The music industry’s approach to this problem is to bring lawsuits against thousands of individuals in an attempt to scare as many people away from file sharing as possible. This flawed approach results from the music industry’s flawed way of viewing the purpose of copyright law in America. They fail to see the distinction between the moral rights and the economic rights granted by copyright. The music industry also delves far too deeply into downstream licensing with their digital rights management schemes, limiting what even law-abiding, legitimate consumers can do with what they legally purchase. In this way, they are punishing those who allow their business to be profitable in the first place.
In doing so, more than anything else the music industry is setting itself up to be the target of much hatred and harsh criticism. A new plan like the Voluntary Collective License would also help remove the negative connotations that are associated with the industry now almost universally among music fans, critics, and technology activists. According to the official Web site of the Recording Industry Association of America (RIAA), the main representative of the music industry, their mission is “to foster a business and legal climate that supports and promotes our members’ creative and financial vitality” (“What We Do”). The current method of going after their own consumers with outrageous lawsuits and fines is not working at all towards that goal, even though they are somehow able to convince themselves that it does. The current business model that is in place for the music industry is outdated and now it is all but failing miserably. The first problem with it is that the RIAA still refuses to admit that there is anything wrong with the way they have been doing things, even in the face of drastically declining album sales across the board and widespread criticism to boot. The RIAA failed to see the Internet as an opportunity and instead opted to see it as a threat. Because of this, they held to their old business model while music fans found their own ways to distribute and consume content.
It is difficult to broach the subject of intellectual property without also considering technology and innovation, two other major factors that come into play within this discussion. When Grokster, a distributor of peer-to-peer software that enabled illegal file sharing to occur, lost the Supreme Court case against MGM Studios, Charles Ingrassia of the University of Illinois Journal of Law, Technology & Policy quoted a technology activist as calling it “a very dangerous decision for technology and for innovation” (Ingrassia 357). Stemming from their different views on intellectual property, the recording industry and its critics both also have very different views on technology and innovation. The recording industry sees technology as something to create new ways to sell their products to the public, and as a way to enforce their exclusive right to do so. Consumers and technology activists, conversely, see technology as a means to achieve innovation. In this view, technology is something that puts more power in their hands to do what they please with a given product that they own. Innovation, they believe, is the direct result of the advancement of technology. The recording industry sees technology’s purpose as generating more revenue for them while ensuring the protection of their artist’s innovation.
In relation to innovation, Cary Sherman, president of the RIAA, in an interview with PC World claims that the music industry “is already making a lot of new business models” and that “the number of legal download and subscription services that are getting really good reviews right now is staggering.” One must question, however, which reviews he has been reading. In general, the legal options of acquiring music online have been met with dissatisfaction from many people for a variety of reasons. The proof of this is chiefly the fact that illegal music downloading still runs rampant. The reason is not because people will always resort to stealing music even when a good, viable, legal alternative exists. Legal online avenues such as iTunes simply do not offer nearly as many options to the consumer as all the peer-to-peer networks. The biggest problem with most legal online music download stores is one imposed directly by the music industry itself. This problem is a technology known as digital rights management (DRM), where the record companies demand that bundled with all music downloads is software to ensure that the music in question cannot be copied or reproduced beyond a certain limit. While the RIAA sees this as a way of protecting their intellectual property, DRM is an outright infringement upon the rights of consumers, as well as a clear example of the downstream licensing that has not traditionally been a part of American law. According to Wired magazine, in regards to DRM, Columbia Law School professor Tim Wu claims that it is “too often ignored” that DRM “makes the product less valuable by disabling the product in some way” (Singel). Wu is correct in his claim, because essentially that is what DRM is – a lock that limits a product’s usefulness to the consumer. This leaves absolutely no incentive for the consumer to drop the habit of downloading from peer-to-peer file sharing networks and start using legal online music downloading stores. In essence, they would be paying more for less.
The RIAA is trying to ignore this obvious flaw with their new plans to promote downloading music legally online. In response to such annoying business practices, many technology savvy users have found ways around the various DRM schemes. They have developed workarounds that will remove the annoying locks on song files and return them to a normal, reasonable level of usability. However, making things more difficult for consumers was not enough for the RIAA. Beyond enforcing DRM upon most legal music downloads, they also pushed for the Digital Millennium Copyright Act (DMCA) to be passed in 1998, which made it illegal to tamper with copy protection methods (Schwabach 82). By this new law, everyone who offered workarounds for a DRM method was a criminal. Before the DCMA was law, it would have been legal for someone to make personal copies of albums or songs for themselves, even if that meant bypassing DRM protection, under fair use. Now, this is only the case for non-DRM-protected music, which is a small minority of music downloaded legally.
Finally, when dealing with issues such as copyright infringement, there is the issue of morality to discuss. Why is it that illegal peer-to-peer file sharing of music is so morally acceptable to such a wide variety of people, while the actual theft of a physical product is frowned upon? Mohsen Manesh of the Stanford Technology Law Review pins it down to two reasons. Not only does current technology make it extremely easy and virtually free to make a work in electronic form available online to anyone accessing the World Wide Web, but also there is a definite “moral distinction” in the minds of those committing copyright infringement between what they are doing and theft (Manesh 2–3). Manesh contends that the reason why people look down on theft but not on copyright infringement is perhaps not based on the law at all, but rather on that “moral distinction” (3). Although consumers may feel that they are acting within morality when they commit copyright infringement, this is not the view of the recording industry. The recording industry repeatedly compares copyright infringement directly to theft and sometimes even much more serious crimes. There may be no physical copy of a work being taken from them, but they still feel every bit as violated and have gone out of their way to make this clear. This is how the RIAA justifies bringing lawsuits against the thousands of individuals who have no moral problem with illegal file sharing, but instead of creating more dissent between the two sides, a new plan like the Voluntary Collective License should be adopted in order to form a solution that works. Otherwise, the ongoing battle would have no end in sight.
The implications of this battle over content control stretch worldwide, reaching both everyone in the music industry as well as music fans and technology activists alike. At this point, the RIAA is unlikely to acknowledge that there is anything wrong with their current plan of simply suing every “copyright infringer” they can find. While they see this as scaring off other potential file sharers, what it is really doing is making the need for a new plan even more obvious. Eventually, this will bring the music industry to the realization that they need to start doing something proactive to save their failing business model. It will be years before something like the Voluntary Collective License or Songwriters Association of Canada plan will be able to be seriously considered at large, but when the RIAA is finally ready to admit they need a real change, those plans will still be there, ready to bring relevance back to the music industry.
Works Cited
Ingrassia, Charles. "A Helpful Loss? the Implications of Metro-Goldwyn-Mayer Studios, Inc. V. Grokster, Ltd. on Future Distribution of Products Capable of Infringing Uses." University of Illinois Journal of Law, Technology & Policy (2005): 357-367. 24 Feb. 2008 <http://www.jltp.uiuc.edu/recdevs/ingrassia.pdf>.
Kot, Greg. "How $5 Could Save the Music Industry." Chicago Tribune 20 Jan. 2008: 1.
Schwabach, Aaron. Intellectual Property : a Reference Handbook. Santa Barbara, Calif.: ABC-CLIO, Inc., 2007.
