A PIRATE'S ARGUMENT
In the summer and fall of 2003, starting before the RIAA launched its infamous first wave of 261 copyright-violation lawsuits, we conducted focus groups with graduating high school seniors and college students. (See Chapter 7, Dude, Where's My MP3? , for more information on this particular age group of digital pirates.) We polled on attitudes and behavior regarding music, movie, game, and software downloading.
The polls were illuminating, since they mirrored arguments we'd seen in trade journals, Electronic Frontier Foundation (EFF) positions, and academic papers on piracy—just phrased them in teen lingo.
But to tell the truth, in subsequent discussions with older people—parents, colleagues, and business people—we heard the same prodownloading arguments.
They go like this:
Pirating isn't so bad. In the focus groups, we asked about the connotation of the word pirate and learned that for many of the kids the picaresque image of Johnny Depp in Disney's Pirates of the Caribbean came to mind. Pirates don't really steal, and digital piracy is more like "obtaining" than stealing.
At the same time, in our discussions at IDC with BSA marketing types, we learned that there are similar attitudes in some countries among adults that make using the term "piracy" to mean unauthorized use of software problematic. Pirating is more roguish than evil. Pirating is a lesser form of stealing. This is not a view shared by the BSA, of course.
The album is an outmoded form factor. In the focus groups, the kids told us that the real beauty of burning CDs or listening to music on their PC is that they can personalize their listening experience, creating a mix like radio stations or jukeboxes, but with their own song choices. The ease of creating personalized mixes with the new technology just diminishes the value proposition of the CD album. Tough luck, RIAA. For young people, the days of buying CDs are pretty much over. As one of the kids said, "We missed the CD generation. By the time we had our licenses and were driving around, spending our money on things like gas and cheeseburgers, Napster had been invented and we all had MP3 players."
Many of those running record stores agree. Mike Dreese, co-owner of the fabulously successful Newbury Comics chain of New England media stores, has been convinced of this fact for several years. He's branched out into DVDs and a range of other media-related paraphernalia and says, "In five years, you'll be very hard pressed to find an environment that looks like a Strawberries or a Tower [Records] or a Newbury Comics." Dreese says we will get music by "burning it onto your TiVo, through your satellite radio, or through a wireless hand-held device." 
He may be right. Tower Records, the company that invented the mega record store, went bankrupt in early 2004. It had launched a $110 million expansion drive in 1998, but started declining from its peak of 200 stores in 2001. But Tower is in good company. HMV shuttered stores in New York and Boston in 2003, as did Sam Goody's, and Best Buy gave away its Musicland subsidiary in 2003 to a buyer that would pick up the costs of its leases and debt. The record store is another endangered form factor, along with the CD.
Products are overpriced and sold by greedy megacorporations. The focus group students felt that the price of a CD—most cost $14–$17—is just too high when they only want to listen to a few of the songs on it. Instead of buying it, you ask around, find a friend who has it, borrow it, and copy the songs you want onto your computer. Or, even easier, download it. The cool thing is to burn your mixes on a CD to play in the car or on a Walkman. The cost differential of 50:1 is nice, too. A blank CD only costs about 30 cents. Added value stuff, like liner notes and cover art, isn't worth the difference.
So kids know the economics as well as adults. What they may not know is that over the last half decade, the music industry has actually produced fewer CDs, while at the same time raising prices. Even before Napster's debut in 1999, the music industry was raising prices (about $2 a CD from 1997 to 2000), and since then it has been releasing fewer CDs (down 14 percent from 1999 to 2002). This is grist for the mill of those who blame the record industry, not pirates, for falling CD sales.
Yes, in 2003 the music industry began lowering prices—Universal went first—but even a 30 percent discount, which some of the new prices represented, didn't hack it for a public that thinks if it's on the Internet, it's free, and if you buy a CD, you still pay for a lot of cuts you don't care for.
Downloading isn't the problem. There are plenty of articles on the self-inflicted nature of the record industry slump. Indeed, in a study in 2002, Forrester Research proclaimed that "contrary to protests from record labels, piracy is not responsible for the 15 percent drop in music sales in the past two years,"  although in its 2003 update Forrester pointed out that in part to combat piracy, "music and movie companies will embrace legitimate downloading and streaming services." 
Large industries are slow to embrace change; the telephone companies let the Internet get away, the post office is not your email provider, and Polaroid missed out on digital photography. As Michael Wolff, author of Autumn of the Moguls, a book about the men who created today's media giants, says in a column written in the fall of 2003, "All industries instinctively try to defend themselves from obsolescence—usually at the point when they are already obsolete." 
But even if the record industry slump is entirely self-inflicted, does that really change the ethics of downloading copyrighted material?
Jonathan Zittrain, professor of Internet law at Harvard, is one who questions suing individual downloaders. He sees the music industry behaving with mercenary instincts, while the downloaders seem to revel in the illicit act of downloading. (See the complete interview with Professor Zittrain in Chapter 7, Dude, Where's My MP3? ). If no one stands up to the media moguls, we will never know the merits or strengths of their stand. The RIAA continues to sue downloaders, and some of their targets are going to court. The outcomes of these cases should prove interesting over the next few years.
Record companies rip off the artists. This one we heard from both kids and adults, and from artists and nonartists. Most would be more willing to spend on CDs if they thought the money would get to the artists. (See sidebar, Music CD Sales: Courtney Love's View of Where the Money Goes.)
Consider what Joni Mitchell said to David Wild in a 2002 Rolling Stone interview:
I've never really had a good deal in the business," Mitchell said. She contemplated never recording again, or perhaps selling her music on the Internet. The music business, she said, is top-heavy and wasteful, the music it puts out is calculated for sales, and that she is ashamed to be part of it. "You know, I think it's just a cesspool." 
On the Internet I'm pretty much anonymous. Some people think they're electronically invisible on the Internet. Nothing could be farther from the truth. Your computer broadcasts a digital signature, called an IP address, whenever you're on the Internet; indeed, how could email messages and information requests be served to you if nobody knew where you were? 
I'm not of the age of majority, so I can't get in trouble with the law.
Federal copyright law does not distinguish between minors and adults. That's why the RIAA can threaten to sue a twelve-year old.
But I didn't do it. Some people didn't and have been wrongfully accused. But if it happens to you, it will still cost you some bucks to get out of trouble. Sixty-six-year-old Sarah Ward was charged by the RIAA in 2003 with downloading over 2,000 songs, among them "I'm a Thug" by Trick Daddy, using KaZaA. Mrs. Ward, a sculptor, owns a Mac (which doesn't run KaZaA) and doesn't even know how to download. She had to hire an attorney to get the charges dropped. The attorney representing the record labels (Sony Music, BMG, Virgin, Interscope, Atlantic, Warner Brothers and Arista, by name) wrote her attorney to say, "We will continue our review of the issues you raised and we reserve the right to refile the complaint against Mrs. Ward if and when circumstances warrant." 
If they don't want me to download, then why do I have the software and hardware with which to do it? Coming out of the mouths of teens, this reasoning seems specious. One college networking specialist we spoke with responded thus: "You have a knife. Does that mean you have to use it to kill someone?" But in truth, the software, hardware, and media industries are at cross-purposes—in those different camps we talked about. They all want you to buy their products, even when one product violates the law and rights of another product. The flames are fanned by academics, musicians, and outspoken critics of the media conglomerates, and by governments that wink at or even encourage illegal software and media downloading. At heart, the entertainment industry would probably tolerate a little illegal downloading, like inventory shrinkage in the warehouse or breakage on the factory floor, but in dribbles and drips, not oceans and waves. It really all boils down to money: The music industry is losing it, and someone has to pony up.
Denial extends to both sides of this issue: Downloaders know that the availability of MP3 players doesn't make violating copyright protection any less illegal. But there is irrationality on the other side as well. Companies or industries rarely attack, arrest, or fine their own customers for alleged theft or misuse of their product. The entertainment industry had years to head Napster off at the pass by building its own online offerings, but instead (out of fear? anger? resistance to change? not realizing how popular online downloading could become?) cut back music development production and raised prices. Gunning down teenagers for their love of music—the industry's product—belies a need to look at more fundamental business issues concerning cost of goods, distribution channels, profit margins, and delivering product that consumers actually want to buy.
I only download a little bit. They're after the big uploaders, not me. Not so. The RIAA believes that everyone should be scared, so they go after the big fishies and the little fishies, the fishies that move music upstream and the fishies that move it downstream. Rippers need to back away from the belief that media file-sharing is a matter of degree. It isn't. The judge is unlikely to rule you less a shoplifter if you steal a candy bar than if you steal a handful of candy bars. Likewise, you only need to be convicted of stealing one copyrighted song, even if you downloaded or distributed a thousand. At fines up to $150,000 a tune, who wants to be caught, fined, or convicted?
You can also say that you're careful when you download; you only peer with other KaZaA members. But you know what? Anybody can join KaZaA, including the RIAA, which has set up dummy servers with music on them in order to identify and ensnare offending downloaders. Do you think you can you tell the difference between a friendly peer computer and the RIAA's dummy?
Bands don't really make any money on their CDs; they earn their living on touring, so it doesn't really matter that much if I download their tunes. If bands want you to download their music for free, they'll put it on their Web site for you. Even if they don't make much (or any) money on their CDs, that's none of your business and not an excuse for them to make even less money. Let's put the shoe on the other foot: It's your band, or movie, or novel, and someone has put a copy of it on their computer, without your knowledge or approval, and is offering it for download on KaZaA. Now how do you feel about it? Or try this on for size:
Your favorite band can't tour because the label says their CD doesn't sell well enough to sponsor them.
It's mine. I bought it, and I can make copies for myself if I want to. That's right, you can. If you own a record, tape, or CD and want to make a copy of it on your computer, you're entitled to do that. You can probably even give a friend a song or two—maybe even a CD—and no one will mind. Just don't go into mass distribution, either on the Internet or anywhere else.
What if it's not your property and you distribute it? Would you feel that's either morally wrong or illegal? Kerry Gonzalez found out that it was both. In the summer of 2003, he obtained a prerelease copy of the movie The Hulk from a friend and uploaded it to an Internet Relay Chat (IRC) site. In so doing, Gonzalez attempted to disable the tape's security code, but that very code was his undoing, making it easier to trace it back to him. He pled guilty to copyright infringement in court and apologized: "I was not allowed to have this copy of a tape. I took it home. I captured it onto my personal computer," he told the judge. Gonzalez was fined $2,000, made to pay $5,000 in restitution to Universal, and sentenced to six months' probation.