- The rift between the corporate music industry and the people who used to be its customers is widening and deepening. It hasn't quite become an unbridgeable chasm, but as more and more people sign up and log on, discovering the freedoms available online, that day is approaching fast.
Soon, there'll be so many people sharing, and so many new bands and new non-corporate music sites going up, that EMI, UMG, WMG and Sony BMG, the members Big Four music label cartel, will have to (shudder) compete. Truly compete.
And what holds good for them also holds good for the mainly US-based hard-core commercial movie and software firms.
John E. Mitchell is a writer on the North Adams Transcript based in North Adams, Massachusetts, and he and lawyer Paul Rapp came together in a two-part series Mitchell wrote on file sharing.
It's a great piece. So read on >>>>>>>>>>>>>>>>>>>>>>>>
Industry targeting file-sharing music lovers: Part One - August 13, 2005 By John E. Mitchell - North Adams Transcript
If rock 'n' roll is considered the traditional opening salvo announcing music as the line in the sand between kids and adults, file sharing has turned the battle into a war. Since the late 1990s, peer-to-peer file sharing has become the hottest and most controversial way to obtain music and Recording Industry Association of America has responded with lawsuits that have only added to public confusion on the issue.
Paul Rapp is an attorney practicing in New York and Massachusetts. He is currently representing at least 20 people who have been slapped with an RIAA lawsuit and has consulted on the phone with dozens more. Rapp also is a musician who has found file-trading works for him and his band. Rapp is the drummer for the Albany, N.Y., area band Blotto, which may be best remembered as one of the earliest MTV stars with their song "I Wanna Be A Lifeguard."
Rapp first began to look into file sharing in 2000, when he downloaded Napster and typed in his band's name to see what the big deal was, sarcastically interested to see how much the band might be losing through downloading.
"As the search thing was flashing, all of a sudden I got this chill of 'What am I going to be if we're not on there? How much would that suck?'" said Rapp. "It came up and there were half a dozen files of 'I Wanna Be a Lifeguard' up there to be traded and I was relieved. Here's a song that's 20 years old and it's still got viability, people are still listening to it, and that's when I realized the real beauty of the file-sharing services."
Rapp said many musicians on his level and above feel the same way about file sharing, especially since recording contracts often penalize the musicians monetarily for not being platinum sellers. To musicians in this situation, whatever theoretical "lost sale" they might have for any given download is far outweighed by the positive publicity they received from still having their work out there, which translates into sales and concert attendance.
The band may never know - or care - how many of their songs are being traded, but the RIAA does and when Rapp gets a settlement agreement for one of his clients, it is accompanied by a list of files that were found on the offending computer.
"I'm looking at one here," said Rapp. "It's a stack of papers, each one has 15 to 20 tracks on it, and it's a stack of papers that's about 3 inches thick, it's about 450 pages."
Rapp goes over the list with his client to make sure it accurately reflects what is in the share folder on the computer. The answer is usually that the file list is accurate, although sometimes the client does dispute some of the list.
"I've had some kids come in and say 'Well, look, a lot of this stuff I have is indie stuff by labels that aren't members of the RIAA.' One kid said 'Most of what I've got is Malaysian folk music,'" said Rapp.
The music industry is giving the contents of a share folder a quick check - RIAA doesn't verify that each and every file is under its jurisdiction or is, in fact, really the song that the file name claims. Given these facts, Rapp can help a client whittle down a file list, but that really doesn't really matter, he said, since the client will be taken to court regardless if he doesn't agree to the settlement.
"The alternative is if you challenge them and go into full-scale litigation, that settlement number goes off the table and if you lose, you're in the tank for significant damages plus all their attorney's fees, so there's a considerable risk," said Rapp.
Rapp and other people involved in file-sharing cases say the RIAA's tactics are plainly bullying, but that this makes sense when you consider that the purpose of the lawsuits has nothing to do with compensation for copyrighted music.
"The industry isn't suing you for damages, that's not what they're doing here," said Rapp. "They're suing you so that they can issue a press release that they're suing you. It is simply playing to the cheap seats and it has nothing to do with actual damages, it's all about public relations and trying to change the behavior of - the last I heard - something like 50 million people."
In other words, the music industry slaps 2,000 people with easily settled lawsuits in order to spread fear among consumers. Consider that their target lawsuit also is their target sales audience: College kids.
"Whenever they do a wave of 750 lawsuits at 20 colleges across the country," said Rapp, "they very methodically issue press releases that are dutifully picked up by the wire services about the RIAA's targeting 750 and they always call them 'thieves.' It's less about litigation and more about public relations, to be sure."
Demonizing your target audience is few businesspeople's idea of sound publicity, yet the music industry bandies around the term "piracy" in their press releases despite the fact that downloaders aren't attempting to sell anything for an illegal profit. In this climate, "pirate" might as well be slang for "music enthusiast" - file sharing is a similar phenomenon to the age-old record collector practice of trading sides and making mix tapes. Rapp thinks that treating the audience this way is encouraging those who might not be downloading under other circumstances to do just that.
"I think it has alienated a large part of the new generation of music lovers and I think it's radicalized a lot of kids," said Rapp. "In many ways, it may seem trite, but this is this generation's Vietnam. Iraq should be this generation's Vietnam, but I think free music, at least in terms of emotion and commitment and politicizing kids, may be it."
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Industry targeting file-sharing music lovers Part Two: Welcome to the world of acquiring music - August 15, 2005 By John E. Mitchell - North Adams Transcript
"Music Industry Targets 765 Internet Thieves In New Round Of Lawsuits" screams the headline on the Web page of the Recording Industry of America - what the accompanying story fails to reveal is that these 765 "thieves" are actually ordinary citizens who have done little more than the modern day equivalent of taping some songs out of their friend's record collection.
Welcome to the brave new world of acquiring music.
Many think that the current situation is the music industry's own fault, that its short-sightedness led to customer dissatisfaction, then to file sharing. In the 1980s, when compact discs came out, few in the industry foresaw the full scope of the digital revolution. By the mid-90s, it had become obvious to many that the Internet was going to be the vehicle for obtaining music - and that CDs were the instruments from which the music would originate. Consumers didn't wait for the industry to move forward.
"The music industry refused to license its music and allow its music to be traded that way," said Albany, N.Y., copyright lawyer Paul Rapp, "and so it developed by itself, by overwhelming public demand with underground services like Napster and the second generation like Grokster and Kazaa. It all could have been avoided - or at least it wouldn't have become the cultural phenomenon."
What had not occurred to the industry was that, back then, a large number of consumers would have appreciated a reliable source for quality downloads at a reasonable price. The fact is, peer-to-peer file sharing is not necessarily an easy way to obtain music and is sometimes very unsatisfying. File quality is highly uncertain, and when albums are being compiled track by track, it can take forever to complete - and sometimes never. Furthermore, a downloader never knows when a virus is attached to the file he is downloading.
Despite the efforts of various groups to devise licensing structures that would create a royalty system for file trading, the industry balked and file trading continues to grow.
Such behavior is not unusual in the history of the music industry. The pattern, Rapp points out, never seems to change. At first, the industry attempts to shut out new technology and, when that fails, ends up embracing it and making it the standard.
"It's always been a cat-and-mouse game," said Rapp. "Gilbert and Sullivan were going apoplectic because their plays were being performed in the United States and no royalties were being paid to them. Then there were the big piano-player roll wars in the first decade of the 1900s. Finally, records started getting made and then radio came along and everyone thought that it would be the end of the record industry. And then cassettes came along and then video cassettes, and every one of them was deemed a burglar's tool and the industry tried to shut them all down and this is just the next iteration in the endless cat-and-mouse game."
There are other tools causing agony for the entertainment industry. One is DarkNet, a proposed application that would allow anonymous online file trading, although it is unclear when that will finally make an appearance. One current thorn in its side is Bit Torrent, a program that decentralizes peer-to-peer file sharing and makes it much harder to track down large numbers of music files on anyone's hard drive. Bit Torrent is the preferred target of the movie industry; a movie currently in theatrical release that is downloaded onto a hard drive can lead to a lawsuit. However, Bit Torrent may end up changing the television and video market, since the most popular downloads, other than movies, are television shows from other countries recorded on digital recorders such as Tivos.
"I think using Bit Torrent to make available to people things that are otherwise unavailable will put pressure on the owners of these things to make things more universally available. I think it does have that positive effect," said Rapp.
The entertainment industry has been able to harness so-called "illegal" file sharing for market research, prompting the existence of a market research company called Big Champagne.
"The music industry pays huge amounts of money to Big Champagne," said Rapp, "which monitors peer-to-peer sharing and gives them a more accurate view of the popularity of their music than their own surveys do. They see what songs and what artists are being traded illegitimately and it's the best marketing research that they can buy. They're paying for this market research of illegal file usage and using it to make their own marketing decisions, which is a bizarre sort of synergy."
One of the more interesting realizations of market research is that those who download the most through peer-to-peer networks also purchase the most downloadable music through services such as iTunes or eMusic.
Lawyers are making as interesting use of the situation. Rapp knows of one lawyer in New York who has filed a motion claiming that it is not enough to just provide a list of file names in a share folder to sue a music downloader - the RIAA must provide proof that these files were obtained by illegally downloading as opposed to ripping the files from CDs.
Kazaa, the embattled file-sharing protocol, has lobbed its own countersuit at the music industry.
"When you download the Kazaa program you have to click through their user agreement," said Rapp, "and they're claiming that snooping on users in order to sue them is a violation of the user agreement. I love that one."
For Rapp and many others, the situation is hitting an absurd level when such arguments are being made in courts. As the last century has shown, things will work themselves out and the industry will be left waiting for the next technology to combat. In the meantime, some still want to make it clear that the music industry is making use of some classic political spin when it sells downloading as piracy - and that people should consider this as they form their opinions of it.
"It's not piracy in the classic sense," said Rapp. "These are people who are downloading music purely for their own pleasure and certainly not for their financial benefit other than the fact they're not paying for it. This isn't someone who's going and making 10,000 copies of the new Britney Spears CD and trying to sell them on a street corner, this is certainly not that."
(Cheers, Alex : )
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