Deconstructing the RIAA's Litigious Solution to Online Music Piracy

Abstract

IntroductionThe Recording Industry Association of America (RIAA), for most intents and purposes, believes that its position regarding copyright and digital piracy is correct, legally and morally. Loftily, it makes statements about the rightness of its pursuit of thieves and their accomplices and associates who participate in peer to peer networks such as Kazaa, Grockster, or Gnutella freely sharing music that would otherwise be purchased in the legitimate, traditional marketplace.1 The RIAA interjects that the motivation behind its litigious approach to the problem of Internet piracy is less about catching the crooks and more about protecting recording artists and the corporations that bring the creative works of these musicians to the public through their distribution channels and retail outlets. In other words, the RIAA is attempting to inform society-through legal discourse-about how it ought to behave with regard to musicians and their intellectual property.And, in fact, it would not make any sense if the industry was not concerned about digital piracy and what ought to be done about it. Consider for a moment, that the number of shared on these networks is incredible-Kazaa, according to a recent Los Angeles Times article, at any given moment at least 4 million people sharing more than 800 million songs, movies and other digital files (Healy, 2003, ¶ 8). So, it is not at all surprising that the music industry is quite concerned about this online exchange of songs; its future viability is inextricably linked with its ability to prevent infringement, especially this kind of systematic infringement.Yet, the RIAA is in a remarkably advantageous position. Thanks to the Digital Millennium Copyright Act (DMCA) which assures the industry that it will enjoy the same measure of privilege in the digital environment as it does in the analog world coupled with the Sonny Bono Copyright Term Extension Act which extends the copyright term to lifetime plus 70 years, the RIAA has a large measure of market security for years to come. Nonetheless, the matter of piracy is not taken lightly by the RIAA and its members. It is, at least in the near term, a big problem and lawsuits are the chosen solution.Justification of the lawsuits is another matter all together and the latter portion of this paper will explore some of the arguments that the RIAA uses to support its stance, not only on piracy, but also its broader view on copyright. This exploration will illustrate that the RIAA's arguments are not in alignment with the philosophical underpinnings of constitutional copyright privilege or the rights of society at large. Moreover, we shall see how the RIAA's substantial influence upon current copyright rules, results in a moral position that is suspect, that is, if one understands the history and nature of copyright law, which too few of us do; and so to this end, a discussion on the public's understanding of copyright and how this understanding explains, at least in part, our attitude toward piracy is also included.The Piracy ProblemThe potential losses of revenue as the result of piracy are dramatic. And, drama gets a lot of attention especially on Capitol Hill and in the press. This attention is to be expected since the entertainment industry on the whole is the fifth largest lobby in Washington (Henderson, 2003, p. i22). Furthermore, the outcome of the music industry in this particular situation has strong implications for all the content industries including the news media given that the multi-media conglomerates that own the news agencies2 also have interests in music, television, movies etc. In other words, the way the music industry is able to direct and control online music access through legal and technological measures informs the other content industries about how they might manage or direct access to their content as well.There are several factors that may contribute to the losses the music indus- try is suffering. …