Peer-to-Peer Attack ads: Law and Order? Criminal Intent?

The leading voices within the content industries are persisting in presenting their intangible intellectual property as if it were tangible physical property. They describe people downloading files via peer-to-peer networks as the moral equivalent of shoplifters, without acknowledging the obvious differences. Once a compact disc is shoplifted, it is absent from the store -- a tangible loss has occurred, and the value of that loss is easily determined. But once a song is downloaded, the losses are almost impossible to measure because only a copy has been created -- the original doesn't "leave the store." And only some uses of these copies could reasonably be considered criminal. In some cases the download substitutes for a potential CD purchase, most reasonable people would acknowledge that's a problem. But in other cases the downloader already owns or eventually purchases the CD containing the song. In other cases, an instructor is using the song for research, scholarship, or criticism. In still other cases, the downloader is receiving a file that was freely and legally circulated elsewhere on the Internet (for example, Salon.com, RollingStone.com, and many independent record labels offer free and legal mp3 files that might subsequently circulate through peer-to-peer networks). But the strongest voices in the content industries do not publicly recognize any of these distinctions, and persist in characterizing the acts of uploading or downloading material as criminal. This approach threatens the many varieties of legitimate and ethical transmission of copyrighted material over the Internet, and could potentially drain much of the richness and diversity from the World Wide Web.


Recent history suggests the proposed lawsuits are not in the RIAA's own interest. The case that I find telling is the RIAA's lawsuit against Jesse Jordan, a student at Rensselaer Polytechnic Institute who developed a search engine application that allowed participants to locate and secure files throughout the school's network. Jordan acknowledges that music files were circulated, as were class notes, PowerPoint presentations, pictures, and student papers. Jordan did not closely monitor the files moving through the search engine, arguing that his role was no different from the passive role played by Google or Alta Vista. The RIAA made a dramatic announcement of the charges against Jordan, equating the search engine application with Napster, and quickly negotiated a $12,000 settlement. This represented Jordan's life savings, and a broad community of supporters has, in the past six weeks, contributed just over $12,000 to compensate Jordan for the cost of the settlement. This suggests that the RIAA' actions are failing to persuade the public at large of the merits of its claims. Indeed, people will, apparently, gladly pay to support someone whose chief claim to fame is having run afoul of the RIAA. So, in exchange for Jordan's $12,000, less their lawyer's fees, the RIAA generated intense negative publicity and anger. This does not bode well for the RIAA's plans for increased litigation.

The RIAA has chosen to use a broad brush to characterize a significant portion of its most committed consumers as criminals. My sense is that the industry would accomplish more by focusing its energies on better ways to satisfy the demonstrable appetite for downloadable music.


Apple's iTunes is a strong step in the right direction (at least for Mac users), with over 5 million legal downloads since its launch this Spring. But it's not as comprehensive as the peer-to-peer services because iTunes negotiates exclusive licenses with some performers, as does Pressplay and each of the other RIAA-endorsed systems. Further, some copyright owners insist on licensing only partial albums, leaving customers to determine whether they wish to pay full freight for 80% of their favorite record.

The realities of present-day licensing suggest that these services will never be as comprehensive as the peer-to-peer networks, leaving consumers to trundle through the services one-by-one until they locate the service with the exclusive license for the particular song they're seeking. Obviously, this is NOT a consumer-centered distribution model. While this does not excuse the actions of those who use peer-to-peer networks in place of purchasing music, it goes a long way toward explaining why peer-to-peer downloading continues to happen, even after three years of ever-increasing threats from the content industries.