The fight against online music piracy entered the realm of the bizarre last Thursday, when Rep. Howard Berman, D-Calif., proposed giving the recording industry sweeping new powers to do what, for the rest of us, would be illegal: hacking computer networks.
Berman's bill, the Peer to Peer Piracy Prevention Act, allows record companies to respond to the "theft" of copyrighted materials by "disabling, interfering with, blocking, diverting, [or] otherwise impairing" a peer-to-peer file-trading network. As long as record companies do these things to prevent the trading of their copyrighted works, they couldn't be prosecuted under computer crime statutes.
Nobody knows what specific attacks copyright owners would carry out, but the bill seems to allow companies to do what many "hackers" have been jailed for -- denial-of-service attacks, for example, that would prevent users from accessing a Web site or other online service. Berman's efforts are being championed by the Recording Industry Association of America, the industry's trade group. In a statement, Hilary Rosen, RIAA's CEO, called the measure an "innovative approach to combating the serious problem of Internet piracy."
Because the bill has almost no chance of becoming law in the short term -- just a few weeks remain in the congressional session, and there is not yet any companion legislation in the Senate -- file traders and civil libertarians responded to its introduction with a bit of bemusement. For some, the bill is just more furious hand-waving from an industry that fears it's going under. "It's not that different from making it legal to break into someone's house to make sure they don't have any illegal Mickey Mouse posters on the wall," says Adam Fisk, a Gnutella developer who works on LimeWire, a popular file-trading software application.
The Berman bill could be seen as a new low for the industry -- further indication that it sees the fight against MP3s as its defining cause and will go to any length to pursue it, no matter how outrageous. During the last three years, the battle against file sharing has become the entertainment industry's version of the War on Drugs, an expensive, protracted, apparently ineffective and seemingly misguided battle against a contraband that many suggest does little harm. The labels' main strategy -- busting the biggest dealers in an attempt to strangle the supply of free MP3s, while offering few palatable solutions to stem the demand -- is a classic tactic from the War on Drugs book, and it has failed just as clearly. Despite the RIAA's recent settlement with AudioGalaxy -- in which the trading service agreed to make available only those songs that it had formal permission to list, an agreement that renders AudioGalaxy useless -- researchers believe that more people are trading music than ever before.
But the RIAA's latest moves -- the Berman bill as well as rumored legal action against individual file traders -- are nevertheless curious, because they come at a time when the industry ought to be declaring victory. Precisely measuring the traffic on peer-to-peer networks is difficult, but there is at least anecdotal evidence to show that trading services no longer offer the cornucopia they once did and, at the very least, are much more challenging to use than was true during Napster's heyday.
While it's still easy to download some of the music you want, finding all the music, these days, is near impossible. Downloading a whole album? Even on a fast connection, even if it's a popular album, even if you have tricks up your sleeve, you might have to spend as much as a half hour of your workday. Then there are the increasing, and increasingly annoying, concerns posed by the file-trading applications themselves: the adware, spyware, Trojan software, and even possible security holes.
If the industry were smart, it would seize this moment. Instead of trying to hack its customers, it would seduce them with a pitch that goes like this: Getting free music is a dodgy affair -- pay us a little bit, and we'll give you a Napster-like free-for-all. But the music business isn't doing that; instead, through its antiquated, complicated and allegedly anti-competitive licensing practices, the labels have given us subscription services that fall short of fun. Even the good ones lack many useful features -- like CD burning, or the ability to play your downloaded music on many machines, or to listen to as many songs as you like for your monthly fee -- that any online music fan needs. And that's a shame, because a good service, released now, could cash in big.
The demographics of file-trading are boom and bust. Until it was shut down, Napster constituted nearly the entirety of the file-sharing market. "Then we saw a huge uptick in at least 10 other services, and there weren't as many consumers in any one of those services as there were in Napster," says Aram Sinnreich, an independent music industry analyst in Los Angeles. But some of those networks started getting more attention than others, and they came out ahead. "Morpheus and AudioGalaxy really became the leading inheritors of Napster's user base," Sinnreich says. Then the two services lost their footing. In February, Morpheus suffered a technical glitch that booted it off its network -- which it shared with users of KaZaA and Grokster -- and it was forced to switch to Gnutella. And AudioGalaxy began blocking more and more files until its RIAA-imposed crippling in May. Now it seems that KaZaA, a client called WinMX, and the various clients on the open-source Gnutella network handle the bulk of file sharing.
And they all have their problems. Salon spent several days trying to download all sorts of songs from these services. The main test was this: How much elbow grease would it take to get a recently released, barely known -- though not obscure -- album? The album that seemed to fit was "Come Away With Me," the debut release from the "pop jazz" singer Norah Jones. Jones, who's 22, has a voice that critics seem incapable of describing without using the word "sultry"; she's generally received the sort of critical acclaim that most young musicians would sell a kidney for. Some radio stations play Jones' music, though not the stations that play top tracks from Billboard Hot 100 -- precisely the situation that made her a good test subject.
File trading has long been justified on the grounds that it lets people listen to new music before purchasing. Whether people are actually more likely to buy the new music they like after they've downloaded it is a question that still hasn't been resolved (there are several conflicting studies) -- but it nevertheless stands to reason that for artists like Jones, artists whose "distribution channels" are limited, file trading might be more help than harm.
So which was the best trader? At various times all of them seemed, on average, to be worth what you pay for them -- which is near, but not exactly, nothing. You pay with your time, and you pay with your computer's processing power and your network's bandwidth, which some of the clients gobble up madly. (One popular Gnutella client, QTraxMax, seemed to stop all other local network traffic into my computer each time it did a search.) The process was fraught with the usual hassles of trading -- the songs are there but the downloads hang, terminate inexplicably or, if they come through, sound as if they were recorded on wax cylinders.
"It's the black market," notes Sinnreich, "and the black market should feel like the black market. I don't think file sharing is decreasing, but there's never a lot of stability there. It's a world where every six months people have to choose new software."
For the brief period that AudioGalaxy was in its prime, its elegant Web-based system did away with these frustrations; maybe that's why it was killed. But still, in Salon's research -- even if it took a bit of time and a lot of micromanaging -- the Jones album was, in the end, ultimately available from every trading network.
And the numbers reflect that. According to Ipsos-Reid, an independent market research firm, there are many more people downloading MP3s today than there were when Napster was around. At the root of it, researchers say, is a consumer sense that there's nothing morally wrong with using the systems. Edison Media Research recently asked people what they thought of this statement: "You no longer have to buy CDs, as you can download the music for free from the Internet." Twenty-two percent of people between 12 and 44 agreed with it. When you just ask teenagers, says Jayne Charneski, an Edison vice president, the results are even more dismaying for the record industry. "Seventy-four percent said there's nothing wrong with downloading or burning music," she says. "Then when we put it in form of, 'Well, do you know musicians aren't being compensated?' that number comes down a little. They cared more for the musicians than the record labels, but only a little bit."
Asked whether such research indicates that RIAA's legal pursuit of file-trading services has been ineffective, Jonathan Lamy, a spokesman, said no. In an e-mail, he wrote: "We believe that our legal strategies are having success. We have never lost a case and two of the most popular, easy-to-use sites are either now offline or finally respecting intellectual property. The online shoplifting of music does continue to plague the industry, but our legal track record so far is clearly having an impact." Lamy agreed that many consumers don't think that music trading hurts anyone, and he said that the RIAA would do more to change that attitude. "It's more than just protecting our legal rights through the courts," he wrote. "It's also educating people about the reasons why unauthorized file sharing hurts the music they care about in the long run. That's a key component of any long-term effort to change people's behavior."
But if the industry tries to educate people, will they listen? The Wall Street Journal recently reported that in addition to going after file-trading services, the RIAA is planning to take legal action against individual file traders. Like the news of the Berman bill, the report immediately caused a stir in file-trading circles, and the RIAA appeared to step back from the issue. (Lamy declined to comment on it.) But many people say that such proposals have created such a distaste for the music industry that it's going to take more than the hazy notion of "hurting music" to get them to change their attitudes toward file trading. "I don't think 10 years ago consumers thought much about record labels one way or the other," says Sinnreich. "These days you have a music-buying populace that is completely disenchanted by the people selling it to them. Is that a healthy business?"
The Berman bill won't help the industry win any more friends, either. Although Berman -- whose top benefactor is the entertainment industry, from which he received more than $180,000 for his 2002 reelection campaign -- suggests, in a statement, that his bill is "narrowly crafted, with strict bounds on acceptable behavior by the copyright owner," critics say it's anything but. Fred von Lohmann, an attorney at the Electronic Frontier Foundation, says that the way he reads the bill, victims of the industry's hacking "don't get to go to court unless the attorney general signs off on it. And you have to prove that they knowingly or intentionally crossed the line, which is exceedingly hard to prove."
Sinnreich, the music analyst, says that some people in the industry are fine with their anti-consumer line. "They think the only way to go against file trading is to bash consumers into submission," he says. Perhaps that's not an unreasonable initial reaction to the scourge of file trading. After all, it's obvious that music buyers don't have any qualms about stealing music -- and what business person wouldn't want to stop the outright theft of product? But after a while, says Sinnreich, "You have to think 50 million consumers can't be wrong. Actually, you're talking about half a billion application downloads of file traders. How can half a billion downloaders be wrong? They can't. The consumers set the tone for the marketplace."
In other words, there's no way out of this mess for the recording industry other than to implement real subscription services. And with all these many rifts in the music industry, it's amazing how many people seem to agree that legitimate music subscription services can become a viable alternative to free trading. According to the RIAA, there are now nine such pay services, and as they become "more and more appealing to consumers, they will draw users away from the illegitimate sites," Lamy wrote.
Civil libertarians, too, say the same thing. "The reason the [Berman bill] is not a long-term solution to the problem," says the EFF's von Lohmann, "is that if you want to stop casual piracy you have to offer a compelling legal alternative." Sinnreich says that there's "overwhelming year-over-year survey data" to show that people will pay for a subscription service that has all the perks, and none of the hassles, of a free system. "We've asked them in 10 different ways, in ways that they didn't even know they were being asked, and always there's a huge number saying they'll sign up."
But fewer than 5 million people have tried such systems, and it's easy to see why. The services differ widely, with varying price scales, music catalogs and options for downloading, and none offer both the range and flexibility of the free file traders.
Some services, like Listen.com's Rhapsody service, offer "streaming," meaning that the music doesn't reside on your computer. Others, like Pressplay and MusicNet, offer downloads instead, but they limit the number you can have each month.
"None of these services seems to know what the consumer demand is for," Sinnreich says. For a subscription service to work, he thinks it needs to offer four features: content from all five record labels; the capacity to play songs from as many computers as you like; CD burning, for an incremental fee; and "no limitation on the number of songs you listen to in a month -- you have to make them feel like they're getting a lot."
As they're currently designed, none of the services let you feel that way. Listen's $10-per-month Rhapsody service has a fantastic interface, and, since it has content from all five labels, you can find much of what you'd like on it. The Norah Jones CD was there, and with a broadband connection it streamed over beautifully. You can listen to any song as often as you'd like -- an option that gives a taste of what a perfect subscription service would feel like. The only trouble is, Listen won't let you burn -- and, as one file trader asked, "Who wants to be stuck listening to shit at their computer?"
A Listen spokesman says that the company is working on offering CD burning, but the licensing issues make it difficult right now. Pressplay, on the other hand, does let you burn a limited number of tracks, depending on how much you pay. The $15-per-month plan, for example, lets you burn 10 tracks, though you can't have more than two from the same artists per disc. (Though he didn't provide details, a representative for Pressplay said that the company would soon unveil a new version, and the company's pricing model would change "significantly.") Pressplay's catalog is lean, though, too lean to pay much for. And its many rules, like the many rules of all these systems, have a way of sticking in your craw; as you keep using the system, and it keeps telling you how much less "credit" you have, it's hard not to get annoyed and wonder why you ever left the land of the free.
According to the subscription services, their limitations can be traced back to licensing deals with the record labels. There isn't any uniformity to it; different labels release different catalogs to different services, with varying restrictions and at confusing price scales. For example, subscription services must pay more to the labels to offer a download than a stream, even though, on a broadband connection, there is hardly a difference between the two -- and the stream, which can be played on many machines, may in fact be preferable if the download can only be played on one machine, which is a common restriction. Why do the labels have these restrictions? It smacks of old-style thinking -- an inability to recognize that the longer they delay these services, the bigger, and more out of control, trading will become.
You can understand why the music business is frightened. In 2001, CD sales declined 10 percent. Musicians -- and not just the crazy ones -- are accusing labels of placing them under "indentured servitude." Perhaps a tad unfairly, music critics blame the industry for the quality of today's music. (It's probably more appropriate to blame Carson Daly.) And fans? Music fans, for a litany of slights, some perceived and many real, can't stomach the labels.
For the music industry, file trading has become the convenient cause of all its ills. CD sales down? Must be due to Napster. Fans don't like us? Must be Morpheus. It's come to the point that even some artists believe that line. Moby, a guy known for his business and techno savvy, recently blamed the poor sales of his latest album, "18," on his fans' facility with trading apps. "I described the 'Pearl Jam Effect' as being a phenomenon wherein bands who have very technically savvy fans will see their records do poorly in the charts, whereas bands/artists who have less technically savvy fans will do quite well on the charts," he wrote on his blog. "This is owing to the fact that bands/artists with technically savvy fans will have a lot of fans who will end up downloading music or burning CDs where as less tech-savvy fans will end up buying their CDs ... Pink outsells Weezer in the States not so much because she's more popular, but because her fans are more likely to buy, as opposed to burn, her CDs." It couldn't possibly be that "18" just isn't as good as his previous release, "Play." Nope -- it's gotta be those CD burners out there.
The downturn in CD sales could just as easily be explained by the overall economic downturn, and the end of the boy band teen-pop cycle. But that's not to say there isn't a real threat to the way the recording industry does business right now.
"Obviously, any market can become a zero-dollar market if the supplier ceases to provide to the demanders what they want -- and there is danger of that occurring here," Sinnreich says. On the other hand, people like music and they're willing to pay for music. But will they pay for something they can get for free?
Christopher Allen, an executive at MusicMatch, a company that offers a subscription radio service, answers that question this way: "You can get free coffee at work, but there's a ton of people going to Starbucks."