With the advent of the Internet, a generation of youth has been on the frontier of finding faster, cheaper ways to get the music it wants. But recent artist and music industry response to digital distribution, including the first conviction of a file-sharer and Radiohead’s much-publicized “pay-what-you-want” digital release model may be changing that.
RIAA: Turtle or hare?
Many college students and recent graduates have grown up sharing music over the Internet. Napster was the way they got music in middle school and after it collapsed in 2001, many young people began using Kazaa and Limewire in high school. With the recently increasing frequency of litigation against Kazaa and Limewire users, those same people — many of whom are currently in college — now get their music from BitTorrent sites.
But October yielded three significant events in the messy world of music distribution. At the beginning of the month, a Kazaa user was fined $222,000 for copyright infringement. Later in the month, one of the largest BitTorrent trackers was shutdown. And in between both events, a British rock band released its new album exclusively through their website, allowing fans to choose the price.
While these are three separate developments, they are related by the fact that each impact illegal file sharing and may forecast a possible change in the way the music industry will deal with illegal file sharers in the future.
On Oct. 5, Jammie Thomas of Brainerd, Minn., was convicted of copyright infringement for illegal file sharing before a federal jury. The jury ruled in favor of plaintiff Capitol Records and its associate record labels Universal Music Group, Sony BMG and Warner Music Group — all of which constitute the industry trade group, the Recording Industry Association of America.
Thomas will have to pay a total of $222,000 in damages, according to The New York Times — $9,250 for each of the 24 songs in question at the trial.
Thomas’ case is significant in that, up until this point, no one had successfully been convicted of copyright infringement through file sharing before a jury. The RIAA, by its nature one of the fiercest opponents of illegal file sharing, have brought lawsuits to about 30,000 people since 2003. Each of the lawsuits was settled outside the courtroom for an average of $4,000, according to the RIAA.
The verdict sets a precedent in music copyright infringement in the United States and could discourage people from using peer-to-peer file sharing services.
According to the music news website Pitchfork Media and as reported in The Badger Herald earlier this fall, the RIAA sent 403 “pre-litigation settlement letters” to college students at 22 U.S. universities. With the recent decision in Thomas’ trial, college users who are subpoenaed face an even more expensive risk if they refuse the pre-litigation settlement and opt to go to court.
As a result of the RIAA’s aggressive prosecution of users of Kazaa (the service Thomas used illegally) and Limewire, two of the more popular decentralized peer-to-peer file sharing services in the past, has caused somewhat of a decline in use of these programs. But overall file sharing has seen little change.
The litigation campaign is futile, said Rebecca Jeschke, the media coordinator for the Electronic Frontier Foundation, a nonprofit organization that opposes the RIAA’s legal effort, in a phone interview.
“File sharing is continuing unabated,” Jeschke said.
The RIAA’s legal aggression has simply forced many illegal music downloaders to adapt and develop more anonymous and protected ways of illegal file sharing — the most widespread being BitTorrent trackers.
In recent years, BitTorrent sites have been the most popular method of sharing music and other files. And up until two weeks ago, BitTorrent users were able to do so without fear of litigation.
A second major development occurred Oct. 23 when British and Dutch police shut down OiNK, one of the biggest and most popular music torrent portals. An Interpol-lead operation raided the home and workplace of OiNK founder and key operator Allan Ellis, seizing Ellis’ computers and OiNK’s servers.
Ellis’ arrest may be the first tangible effort made by authorities to curb the use of torrent music portals, but it most likely will not have an effect on the use of BitTorrent trackers in the larger scheme of things.
“[OiNK’s shutdown] inconvenienced the use of torrents at best,” said a University of Wisconsin graduate student who used OiNK before its shutdown and wished to remain anonymous. In a phone interview, the person said that he had downloaded music from another torrent site earlier that morning.
In the midst of both Thomas’ trial and OiNK’s shutdown, another development occurred last month that heralds a plausible compromise between the music industry and file sharers in the future.
In search of a better way
On Oct. 10, British rock group Radiohead released their new highly anticipated album, In Rainbows, digitally on their website. While releasing albums on the Internet is not a new thing, Radiohead did incorporate one nuanced innovation: They allowed fans to decide how much they would pay, if anything, for the new album.
Only one third of the first million downloads paid nothing for the album, according to an online survey by Record of the Day, while many others paid more than $20. The average amount paid per sale was around $8.
Radiohead’s fans’ willingness to, in essence, donate money to the group has stunned economists, according to a New York Times editorial by Eduardo Porter, who rationally predicted a majority of the fans would take the album for free.
“Since we economists don’t understand tipping, we can’t really say whether this new scheme will work,” Greg Mankiw, a Harvard professor of economics, said in a blog post before the album’s release. But Radiohead’s success with the social experiment that is “In Rainbows,” might suggest that there is a viable alternative to distributing music.
The only issue that record labels will have to address is the fact the fans will only pay for music worth paying for.
“For Radiohead, I would pay because I like the band,” said Varun Bhandula, a junior at UW majoring in business and economics who donated money for a digital copy of the album. “I wouldn’t necessarily do the same thing for other bands.”
This distribution model would not be very plausible for upstart bands without fan bases, but for established bands like Radiohead, who have already had the benefit of heavy promotion through record deals, this could be a way of the future.
In fact, since Radiohead’s album release, several artists have followed suit, including Saul Williams, a spoken-word poet and musician, who is asking only $5 for a digital copy of The Rise and Fall of Niggy Tardust, which is produced by Nine Inch Nails frontman Trent Reznor released Oct. 31.
“There are obvious similarities in how Radiohead just released their new record and the way we’ve chosen to,” Reznor said on his band’s website. “After thinking about this way too much, I feel we’ve improved upon their idea in a few profound ways that benefit the consumer.”
In addition to the fixed price, the album is available in both compressed MP3 format and FLAC, a “lossless” format that appeals to audiophiles disappointed by Radiohead’s average quality MP3 release.
A Reuters interview with Williams and Reznor shows the industry, or at least its musicians, may be changing its views on file sharing, through taking control of digital distribution.
“Look, when file sharing started to proliferate, I was upset about it. I had worked so hard to make music and was pissed that people thought it was OK to just steal it. But at a certain point, I just accepted that this is the way things are, and kids aren’t going to spend money on an inferior product when they can just get it for free,” Reznor said.
Reznor said he will “carefully analyze” sales of Williams’ album to determine whether the next Nine Inch Nails release should take a similar approach.
“I figure there are other revenue streams, and while I like being compensated for my work, I think it’s more important to get it out to the public. It was not my intent to try to start some campaign to destroy record labels — they’re doing a good enough job of it themselves. We’re not tainting the experience with ads or corporate tie-ins, and we’re letting the songs speak for themselves,” he said.
— Tim Williams contributed to this report.
