Get Real

So the RIAA is making good on its threat and suing individual file
sharers.  As a political strategy, this approach is
dangerous.  Stories about confused 12-year-old defendants can’t be
great PR for the record industry.  But we need to be honest and
acknowledge that what they are doing now is legally more defensible
than suing Napster and its ilk. 

Downloading copyrighted music that you don’t own or have fair use
rights to is a violation of intellectual property.  It’s socially
acceptable and, until now, relatively risk-free, like speeding,
installing unregistered software on your computer, or making mix tapes
from CDs.  One can say that makes fighting it futile.  One
can argue, with some credibility, that it helps the record industry to
have unregulated file trading.  And one can say that a legal
regime that offered weaker intellectual property protection, like the
one the Framers of the Constitution established, would be better for
everyone.  By all means, lets change the law, and change the
business structure of the music industry, both of which are in
desparate need of reform.

Just don’t pretend that makes file sharing perfectly legal.  The
intellectual property extremists are in power, but the fact that they
are wrong doesn’t mean, as Jonathan Peterson of Amateur Hour suggests,
that their legal argument is a fallacy.  The bulk of those tens of
millions of Kazaa users are downloading files for the simple reason
that free is a better price than $17.99 or even 99 cents.  There’s
no honor in that. 

Why does it matter?  Because we risk cheapening the distinction
between free beer and free speech.  Linux is thriving not because
it’s cheaper, but because it’s better.  Fair use and the public
domain are valuable because they increase creative, political, and
educational output, not because they threaten private property. 
Martin Luther King and Gandhi are heroes because they disobeyed laws
that were immoral; focusing only on the disobedience cheapens the
civility.  Saying there is nothing wrong with file sharing only
reinforces extremists who see the world as black or white.

As I wrote
in the Spring, the endgame of the digital copyright wars is coming into
focus.  As plenty of people predicted, distributed and private
file-sharing services are making it increasingly difficult for the
record industry to choke off the intermediaries.  The last gasp of
their “Plan A” is to sue individuals.  It won’t work, but it won’t
totally fail either. 

We need to get as quickly as possible into “Plan B,” which is to offer
customers licensed music dowloads with prices and terms they find
acceptable.  And the best way to get there is to acknowledge that
the problem isn’t the institution of copyright, or the idea of charging
for a piece of recorded music.  It’s to empower those within the
music industry who realize that scaring 12-year-olds isn’t a long-term
solution to all their problems.