Digital Noise: Music and Tech

Some new intellectual property (IP) enforcement legislation passed the U.S. House yesterday by a wide margin. The Electronic Frontier Foundation, which has been against the proposal since its inception, put out a release highlighting the silliness of creating a new presidential appointee (complete with official seal) specifically to oversee IP policy. But reading through the coverage of the bill, and wading through most of the bill itself, there's another part that seemed more alarming to me.

I've never studied law, but it looks like the bill allows the government to seize any computer used in the process of making unauthorized copies of audio recordings. In other words, if you're convicted in a civil or criminal case of posting songs to file-sharing networks, or making unauthorized live recordings and posting them to the Web, or using DeCSS to make unauthorized copies of a movie from a DVD...then say goodbye to the PC used in the process. (You can read the entire bill by submitting a search for "HR 4279" here.)

Obviously, this is intended to stop large-scale pirates--the folks burning millions of CDs for resale--but looking at some of the individuals sued by the RIAA, I wouldn't be surprised if some average folks are caught in the net. Of course, if you're on the hook for $220,000, like Jammie Thomas is, losing your PC is a small part of the overall penalty, but expanding goverment forfeiture rights to crack down on digital audio and video piracy seems a bit extreme to me.

It's just a bill, it hasn't been brought up in the Senate, so if you think this is a step too far, you have time to express your opinion to your senator.

Incidentally, the bill uses the term "phonorecord" to describe an audio recording. I just heard a presentation on IP law from one of my colleagues who's studying the topic right now, and he noted that "phonorecord" is standard language in the U.S. Code, and doesn't necessarily mean LP records. It's just one of those odd legal terms leftover from a bygone era.

I'm about three months late, but I finally got around to reading Andrew Keen's The Cult of the Amateur, in which he blames the current crop of Internet sites and users for eliminating the concept of expert knowledge, destroying the concept of intellectual property, and breaking down hundreds of years of Western culture. He even trots out the old "save the children" argument that we've been hearing since 1995--pornography, predators, and pedophiles, oh my! (People always seem to miss that fourth "p"--parental oversight.)

Keen has some valid points, unfortunately they're buried in a lazy book full of lazy arguments--Lawrence Lessig eviscerates it far more efficiently than I could hope to. But the part that particularly got to me was Keen's insistence that piracy is solely responsible for the woes faced by the music industry.

Here's the nut of his argument: "According to a joint 2006 report by the European (IFPI) and American (RIAA) researchers, forty songs are actually downloaded for every legal music download. That adds up to 20 billion songs illegally downloaded in 2005....At the iTunes price of 99 cents a song, the 20 billion songs stolen in a single year adds up to an annual bill of $19.99 billion, one and a half times more than the entire $12.27 billion revenue of the U.S. sound recording industry in 2005. That's $19.99 billion stolen annually from artists, labels, distributors, and record stores."

Ignoring Lessig's rebuttal that even the RIAA doesn't count the retail sales value when calculating the loss from piracy, there's another problem here. Keen assumes that all of those downloads represent a lost sale, as if downloads are replacing CD purchases. But I'd argue that they're not--downloads are replacing the process of music discovery that used to be filled by radio and, for a little while, MTV. But over the last ten years, as the radio industry has consolidated, playlists have become much more predictable and less varied, even from city to city, and the barely-disguised payola that dominated the late 1990s and early part of this decade made things worse. (This was well-documented by Salon's Eric Boehlert and eventually led New York's then-Attorney General Eliot Spitzer to file a series of lawsuits against record companies and radio conglomerates.) And MTV hasn't been about music for a long, long time.

So how do music fans find out about new acts? Same as ever, from their friends. And here's where technology comes into play. Before the Internet, my musical friends would come over with a bunch of LPs or CDs to play. I might like one or two of them, which I'd then buy. Now, they can just send me an e-mail with a link. That may get me a 30-second sample, but if I want to hear the whole song, several times, at my leisure, on any device I own, there's only one easy way to do it--download unprotected MP3s.

I have no doubt that some conversion from sample to buy is lost thanks to this technological change: my friends might lend me the CD for a day or week or month, but they wouldn't let me keep it, which means if I really loved it I'd have to buy it. Not so with a download. Still, to assume that every single download represents a lost purchase is plainly ridiculous.

At the end of the book, Keen offers some reasonable ideas to help the record industry cope with the digital world, including giving up on DRM (which doesn't work and drives users to file-trading networks) and lowering prices, in hopes that consumers will finally turn to legal downloads in place of illegal ones. Good points, but I still think the celestial jukebox has the best chance of revitalizing the industry.