http://www.salon.com/tech/feature/2002/07/30/file_trading/print.html
Sour notes
The legal crackdown hasn't squelched MP3 trading -- it's just made it
more of a pain. But the music industry would still rather fight than give
its online customers what they want.
- - - - - - - - - - - -
By Farhad Manjoo
July 30, 2002 | 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."
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"RazorPop, Marc Freedman" <marc@...>
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