Why suing students is the right thing to do

[...] the Recording Industry Institute of America (RIAA) has not only led the fight for these lawsuits, but also joined together with campus administrators to educate students on the law and the consequences of violating it. Some have criticized the RIAA and others in the music industry for going after students. But I will argue that it is entirely right - both legally and morally - for them to do so. In a society that enjoys the benefit of a strong, enforceable copyright law, it is too easy to forget what life would be like without it.

Life without copyright? Stirring words and they're from Why Suing College Students for Illegal Music Downloading is the Right Thing to Do by Marci Hamilton, Paul R .Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University.

Unfortunately, the item was picked up by CNN, but it didn't go unanswered. Thea Cooke took it apart on MXDWN. It's long - but worth the read.

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Submitted by AsraiLight

Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do - CNN.com, FindLaw.com.
An Editorial Response to an Article By Marci A. Hamilton
Posted on Tuesday, September 16 by Thea Cooke

Ms Hamilton,

I appreciated your article from last month entitled "Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do." You brought up some worthy points, however for every argument you made on the behalf of the RIAA, there is an opposing - and equally valid - counterargument.

According to your article, copyright law is what helps create culture, maintain it, and ensure the survival of new and unknown artists. Of course much of this is true; without their name attached to a number one hit an artist might not make their first million dollars, or even their first dime. Yet let's be honest, it's not the law that defines who receives payment for music - it's the fame. There are many cases in which an artist's popularity and success is not defined by their ownership of a song, but by their performance. Ask yourself how DJs can be popular and make a living, when they do not own any of the copyrights for the songs that they perform. The same goes for cover bands who perform specifically songs that are owned by other artists, yet manage to make a living on their music performing. I can guarantee you that Britney Spears does not own the copyrights for most of her songs, rather the people who write them do. In all likelihood she owns no copyrights, certainly Jive Records owns her image. Yet she managed to buy herself a condo in L.A. recently, and is apparently doing just fine.

Perhaps then it is the songwriters who deserve to retain their copyrights, and thus make a profit. Yet most of those songs that become billboard-toppers are in fact commissioned, not copyrighted by the authors. Who owns the rights for them then? The record companies, of course. You see, in pop music today success is not based on whether you own your own song or even if you write songs, but is instead based upon your image and the image your company creates for you. Artists are "cast" into their roles, they do not claw their way in. Spears, Avril Lavigne, *NSYNC, The Backstreet Boys, and many other pop stars are paid for their beauty and dancing skills, not their talent at creating music. Not until Spears' third studio album Britney did she have any writing credits, and only co-writing at that. (For independent music where expression is more sincere than their pop counterparts, file sharing can only help these artists - as I will explain later in this letter.)

This proves that many artists do not receive proper payment for their music because of copyrights, but instead because of royalties that are defined through their record contracts. But unfortunately as recent events have shown, labels are in fact stealing millions of dollars per year in royalties from their artists (according to a Senate hearing on record labels' accounting practices in California last year).

For true "artists," by your definition of the term, who actually write and perform their own music, their copyrights and royalties are not protected by the RIAA. The Recording Industry Association of America is an association to protect the Recording Industry, not the musicians. Taken directly from their own website, they state the following: "The Recording Industry Association of America (RIAA) is the trade group that represents the U.S. recording industry...Its members are the record companies that comprise the most vibrant national music industry in the world." This states clearly that, in their own words, there are no musicians in the RIAA, only labels. By saying that CD sales are down, and thus musicians are not receiving their rightful money, they are sadly and blatantly attempting to appeal to consumers' sympathies by standing behind artists and using them as an excuse to complain about their drop in sales.

One such artist, Moby, states on his website: "how can a 14 year old who has an allowance of $5 a week feel bad about downloading music produced by multi-millionaire musicians and greedy record companies?" Moby himself is on V2 Records, which appear to be members of the RIAA, but his views obviously differ from that of his record company's association. Other artists such as John McCrea from Cake and Deborah Harry of Blondie have made similar comments. The labels are even attempting to keep their musicians on short leashes, and according to the New York Times: "In interviews, some musicians and their representatives said that their labels had asked them not to talk. And in a dozen cases, record labels did not grant interviews with musicians on the subject." The fact that artists are not even allowed to speak their minds because of their contracts is a frightening concept in itself.

Because of these policies some artists are trying to break away from the major record labels, such as the rock band Ween, who departed from their former Elektra label to release their albums independently. They support downloading, encouraging fans to record their live shows and share the music with one another.

Because the RIAA does not represent musicians but rather their record companies, they are keeping the interests of the companies, not those of the artists, in mind. The relationships between those same companies and their artists is also not that stable, and because the RIAA is allegedly stealing so much from artists, how are we to truly know that ending P2P (peer-to-peer) file sharing would assure the artists receive their lawful due? By defending the RIAA, one defends the record companies and their despicable practices, not the musicians' rights to their music.

Therefore, the argument that file sharing directly hurts artists is erroneous. There is a complicated web of legalities, royalty rates, and middlemen between the downloading of a song and the performer's paycheck. To see the direct implication of piracy on a monthly salary is either impossible, or can only be measured in 100th's of a cent.

Your article also mentions that if our world catered only to the rich and government-sponsored, art would eventually disintegrate. But if you hadn't noticed, the world the RIAA wishes to maintain does exactly that - cater to the rich. File sharing isn't popular because it's easier, faster, or better than buying a CD; but because it is free. For anyone with a computer and easy access to a music store, I can guarantee they would prefer having a CD to a list of low-quality MP3s. When you have a CD you own the artwork of the group, official lyrics, and these days, perhaps even a bonus DVD. The CD can even be made into files for MP3 players, so the format is not a concern. But how can the record industry compete with a business model where the product is free? Here is the crux of the issue: the price.

Consider this: CDs nowadays cost anywhere from $10 to $20. To get the albums of even half a dozen of your favorite artists is a huge investment, perhaps not for your standard businessman, but certainly - and obviously - for college students. As per the stereotype, college students for the most part have little to invest as it is in healthy food, clothes, and entertainment. Yet ironically, most record companies make their target audience the very people who can't afford to spend as much on their product as they would like to...and the very people who will be prosecuted because of it.

Now imagine that file sharing were terminated completely. Would these record companies and artists still be making as much money? Would they even get back their 8% of sales, as you say? In all likelihood, no. The drop in sales is just as likely because of the rise in prices as it is because of file sharing. In the world of college and youth, $20 will easily buy you four meals. Is one CD worth that much when the music might not be that good to begin with? The dilemma for students is clear: of course they wish to support their favorite artists, but how can they do that when they must support the companies whose policies they may not agree with, rather than simply downloading the music for free when it is so easily and readily available? The answer for many of them becomes to see the musicians live and support their tours, where it is said artists make more money than by selling albums.

Thus, file sharing caters to the un-wealthy and independent, not the wealthy. That includes audience and musicians alike, which brings to light an even more important issue: the obvious fan base that file sharing provides. Destroy P2P networks, and you've lost a huge opportunity that, as yet, no record company has bothered to capitalize on: free exposure.

When you speak of poor artists such as Loretta Lynn from Butcher Holler sharing their gifts with the world, you assume that only the wealthy would be able to survive this supposed strain that file sharing puts on their income. In past decades this would be true, but we now live in a new world. Loretta Lynn, were she intelligent and attempting to make a name for herself in this day and age, would use the Internet to her advantage. She would likely post her own songs online without the help of a label, instantly sharing them with thousands of potential fans. They would spread across the world in the blink of an eye, garnering a following here in America, in Europe, and perhaps even Japan where country music has found a comfortable following. By the time a record label decided to give her a contract, she would already have a following of hundreds or thousands of fans, and the need for promotion of records and tours would not be quite so high. Then with royalties from the albums that would be sold, as well as what are played in clubs and on the radio, plus a generous amount from live performances; Loretta Lynn would no longer be poor, and it would in part be thanks to file sharing.

The exposure for artists is the greatest boon of music piracy, and yet no one has bothered to mention or talk about the issue. With so many students unable to afford albums, turning to KaZaa and other programs helps them maintain a healthy level of knowledge about current music and music trends. File sharing is exactly that - sharing. When a user finds a song they like in the library of another user, they may see a list of bands that they have never heard, but can instantly download and sample. The result is that more people find new music and upcoming artists through piracy than they ever would by listening to the radio, going to shows, or viewing the promotions of record companies.

Some see the Internet and free file sharing as the greatest thing for undiscovered artists. Take for example AudioGalaxy. This site is dedicated to helping musicians find exposure online, by hosting MP3s of their music. The musicians can post music, images, information, and even their own webpage...all for free on AudioGalaxy's servers. This kind of exposure any undiscovered artist would crave: the chance to reach a hugely wide audience and give them a taste of their work, free for both themselves and their listeners. Unfortunately it is the artists who are already successfully established, pulling in millions of dollars per year, that have spoken out the loudest against illegal downloading. One such band is Metallica, who all but lead a holy war against the shareware Napster, and in the process lost many fans who suddenly found their heroes appear to be among the greediest of P2P detractors. Why would a group who pulls in millions of dollars per year and one of the highest royalty rates in the business ($4 per album sold), be worried about a few dollars less? Certainly, as Elvis's gold-plated piano you viewed at the Country Music Hall of Fame proves, these artists aren't lacking any amount of extraneous wealth. Metallica's attitude was disheartening for those who believe sharing music can be beneficial to artists.

What critics don't notice or understand is that when "pirates" share music, they foster a following for musicians and help establish their popularity. As I have said, many fans will spend money on live shows to support their favorite artists. Especially for independent music where live shows are as much a part of the experience as listening to an album, their fans in many cases would not fill the room/arena/stadium had they not heard the artist online first. Some musicians and labels are finally catching on to this idea, hosting streaming versions of all of the songs on an album so that fans can hear it before buying it, rather than just the one or two singles that are made popular. Yet file sharing programs are still a standard, so that they remains many listeners' first choice when finding out about a new artist.

I have known many downloaders who claim that if they want to buy an album, they will download it first to see for themselves if they truly like it. After all, why spend money on something that they won't use or enjoy? If the album is deemed worthy, they will buy it. Unfortunately this does not fit in with the RIAA's business model, as many of their profits in the past have been based on people buying CDs that they ended up hating. In almost any other industry, consumers can sample the product first to see if they like it, or if they buy it and dislike it, they can return it for a full refund. Not so with CDs. Many profits are made from people purchasing music they would never have bought had they heard the whole album first. In this manner the record industry has been cheating consumers for years, and only recently - mostly thanks to file sharing - can a consumer hear the entire album before buying it, rather than just the few singles they hear on the radio. Perhaps the industry's 8% drop in sales is due to this phenomenon of people now buying only the music they want, rather than something they take a gamble on.

After reading your article, Ms. Hamilton, I am still confused as to why you believe college students are the appropriate targets. You never clearly state what it is about students in particular that makes them as guilty as they are made out to be, or that they are more worthy of prosecution than anyone else.

It is a cruel paradox: The RIAA is attempting to strike fear into the people who make up most of their consumers, as if saying that not only are students the only culprits, but they are also wealthy enough to pay the price. A ridiculous concept, considering that the only thing the RIAA will get out of suing students is a few thousand dollars (which will probably not even end up in the pockets of the artists), a mass of boycotters who now have that debt as well as the debt of their student loans, and a rebellious generation ready to defy the law. This is where your argument fails, Ms. Hamilton.

Students will not "back off of illegal copying once they learn that the free ride was an illusion." Because in fact, the "free ride" is no illusion...rather the idea that the music industry can survive based on the standards of old technology is the illusion. File sharing has become such a part of our communication, our way of life, and yes - even the building of our culture - that its influence and integration into the technology of the future can no longer be ignored. The RIAA cannot sue thousands upon thousands of file sharers, it is impossible. Rather than dissuading users from sharing music, there will be more users in years to come, bringing the number of file sharers into the millions and the files being shared into the billions. Do you not remember the national alcohol prohibition of the 1920s? It was believed that by banning alcohol for public consumption, the government would be able to cut down on crime, and create a better quality of life for its citizens. The result was an outbreak of crime for over a decade, and the amendment became a terrible failure. The psychology around file sharing works in much the same way: to make such an important thing out of prohibiting it is to foster a community that only strengthens their resolve to combat what they see as unfair bullying. The only thing for the RIAA to do is to invent a way in which to make a profit on file sharing and promote its use, rather than trying to crush an aspect of technology that will never disappear.

Please do not misjudge me, I do not promote stealing money from hard-working music and entertainment professionals, nor do I deny that file sharing is "wrong" in the moral and legal senses of the word. I do not condone it in certain circumstances, and I am aware that "free" does not come without a price for someone. However, I also believe that file sharing is "right" in many aspects that have not yet been tapped by the corporate world. The instantaneousness, community, and exposure are just a few of those aspects that could help musicians and entertainers become more successful that they ever have before, but unless there is a change of tune those possibilities will never see fruition. Many ongoing arguments in this controversy are not towards a better understanding, they are simply barriers that shut out possible solutions. I hope that this argument will help to find a solution, rather than become yet another dead-end in the world of music piracy debate.

Sincerely and with respect,
Thea J. Cooke