RIAA’s New Tune

The RIAA has a new strategy for combating the behavior that they insist on absurdly analogizing to having armed gunmen show up on board your ship and threaten to murder you unless you hand over cargo to them. Instead of suing music fans, they’ve worked out some kind of deal whereby Internet Service Providers are supposed to act as their enforcers:

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take.

Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

It’s not at all clear to me why ISPs would agree to do this, but apparently they are. In a market where consumers had a wide array of ISP choices, I assume this would just cause people to migrate to an ISP that declined to take this sort of deal on. But at the moment, there are still few enough that it’s plausible both Comcast and Verizon will agree to the deal and then folks like me will have no choice. Meanwhile, as noted by TechDirt one thing missing here is any sign of due process:

But the biggest problem is the fact that this allows private organizations to judge users without any significant defense on their part. The stories of falsely accused file sharers are widespread at this point. IP address-based evidence is notoriously unreliable. Yet, the RIAA will be basing its notifications on such evidence. Sure, plenty of the IP addresses dug up by the RIAA are probably accurate, but we live in an innocent-until-proven-guilty world, and this does away with that completely.

And as ever, the misguided quest to eliminate non-commercial file duplication can only work by attempting to prevent utterly non-infringing behavior. I legally purchased Jens Lekman’s When I Said I Wanted to Be Your Dog some time ago. I had a copy on one of my laptops, and from there transferred copies to my iPhone and the external hard drive I use for backup. I wanted to listen to “Tram Number 7 to Heaven” earlier this week while working on a different computer. Under the circumstances, the easiest way of getting the song to my computer was to download a copy via a peer-to-peer file sharing service. This was, as far as I’m concerned, completely non-infringing — I’m a legitimate owner of the album — but it could have gotten someone ratted out to his ISP under the RIAA’s new plan.

Stuff like this around the margins aside, you can’t help but blame the RIAA. The rise of digital media and the internet has made the specific business record labels are in basically obsolete, but they have a lot of political capital and are using it to try to stay in business.


What I’ve never seen is a serious effort on the part of policymakers to articulate what policy problem it is they’ve been trying to address with internet-era revisions to intellectual property law. The Wall Street Journal‘s writeup of the latest RIAA moves is accompanied by a familiar chart of falling album sales. But boosting album sales is not a legitimate public policy objective. Nor is boosting record company profits. Nor, even tough musicians themselves are a much more sympathetic claimant than record company shareholders, is boosting musician incomes. The purpose of intellectual property law is to protect the interests of consumers. I’ve never seen anybody attempt to argue that people aren’t forming new bands or recording new songs anymore. Nor have I seen anybody attempt to argue that it’s more difficult today to find new music to listen to than it was ten or twenty years ago. In fact, the reverse is the case. The very trends toward digitization and file-copying have made music much more widely available than it was in the past. There have been better times to be a record company executive, but there’s been no better time to be a consumer of music in the United States. Under the circumstances, it’s not at all clear what the policy logic is behind the belief that there’s an infringement “problem” that needs to be solved through stepped-up enforcement. The mere fact that infringement occurs is not a reason to believe there’s a problem since as long as the legal price of a song is far above the marginal cost of producing a copy, the socially optimal level of infringement is going to be well above the zero-infringement threshold the RIAA is aiming at.

And that’s even without considering the costs of enforcement and compliance.

So while it’s good to see the RIAA backing off lawsuit-mania, there continues to be no real evidence of a public interest in clamping down on noncommercial file sharing.