Reflecting Harvard: a bike passes through Cambridge. Photo (CC) sandcastlematt.

Music DRM may be a thing of the past, online sales may be growing, but that doesn’t mean the U.S. record industry has missed a beat in its ongoing legal and lobbying campaign against music piracy online.

The latest battle starts today in Rhode Island federal court. The difference this time: the RIAA and record companies will have to face a Harvard Law prof and his students. Prof. Charles Nesson and his team allege the industry is abusing the court system, unfairly making “examples” out of the people they’re suing, and invading privacy.

Whatever your feelings about the righteousness of litigation as a deterrent to piracy, the case in particular gets pretty strange. Rhode Island residents Arthur and Judie Tenenbaum face having their home computer seized as evidence, despite the fact that even the industry legal team doesn’t contend this particular computer was used for the alleged downloading. The couple’s son faces a stunning $1 million+ in possible damages, but only allegedly shared seven songs on Kazaa – and the couple didn’t even own the computer when their son lived with them.

The team will be up for interviews, so I’ll try to follow up – let us know if you have questions for them. More here:

RIAA v. Joel Tenenbaum @ the blog CyberOne: Law in the Court of Public Opinion [Harvard Law]

Updated: Early word is that the hearing has been rescheduled, Prof. Nesson isn’t admitted to argue in a Rhode Island court, and the judge (rightfully) denied the RIAA motion to look at Joel Tenenbaum’s parents’ computer, since it wasn’t involved. More official details forthcoming.

In other news, Jim Griffin of Warner Music Group continues to push a plan to offer a blanket license to campuses to avoid litigation by allowing students to pay a voluntary monthly fee to download music from file sharing services. It’s not entirely clear to me why this scheme continues to attack such ire online. Ars Technica rightfully says hold the kneejerk responses and wait for the details. There’s certainly a precedent: clubs, bars, concert venues, and the like already pay blanket license fees for performance rights, and the revenue is ultimately distributed to the people who own the work (think publishers and writers). That’s not to say the plan isn’t rife with potential problems, and it seems to me could even endanger efforts to encourage things like Creative Commons licensing. But without more details, it’s tough to criticize the idea without taking into account both its pitfalls and potential.

One thing everyone ought to be able to agree on, perhaps even some of the beleaguered record labels: ongoing litigation has been ugly and unproductive, and still doesn’t solve the underlying problem. With broad wireless Internet access on the horizon, even if I were to play devil’s advocate and assume I was an RIAA member wanting to stop campus sharing, it seems just scaring campuses into blocking these services isn’t really a solution.

And as artists, our primary concern ought to be that these responses aren’t doing what we most desperately need: establishing a real business model and promotional possibilities for emerging distribution online.

  • Paul Norheim

    Peter, did you think about certain chaotic events in Somalia recently when you said that the industry, according to a professor, are "invading piracy".

    Or is this about someone invading the PRIVACY of the alleged pirates?

  • Ha! Now how did my team of copy editors miss that one … I knew I should have listened when my friends told me not to hire orangutans, gentle and intelligent creatures though they may be.

    Second cup of coffee time…

  • Paul Norheim

    Have you seen those orangutans operating a touch screen? When multitouch becomes more widespread, you`ll realize that these intelligent and gentle creatures may do amazing stuff with soft synths!

    Ok, you may fire them because they`re lousy proofreaders. True. But please give them an iPhone each with BeatMaker or installed, as golden parachutes on the way out!

  • Rex Rhino

    The trouble is, there isn't really any future business model for selling music online. Selling music as a consumer item like soap or Twinkies is dying or dead.

    And people oppose the blanket licensing scheme because it requires that universities track each and every music file that a user downloads, forces students who don't download music to pay. And it still establishes a cartel responsible for supervising and enforcing these agreements, and a tiny elite who decide who gets paid.

    But, much more important than that, why the hell would we make concessions to our enemies when they are on the verge of losing? Why not just stall, delay, hassle, until they inevitably collapse? Record companies are struggling to survive, and music consumers are not. If the music industry collapses, people will continue to make music just as they have for thousands of years and technology will make it easier and easier to get, so why should the average person want to give up money or privacy?

  • sasarasa88

    Having a .edu email account gives one access to Ruckus. By creating an account and downloading their player you get instant FREE access to their entire online contents. The service is far from perfect, the client is slow and ugly, some albums are incomplete, content is DRM-protected (there are well-known tools to circumvent this minor "problem"), and Windows media player is required. But you don't have to pay a cent.

  • @Rex: People said there was no business model — but then we've seen huge success from services, new distribution outlets (like digital radio), and major growth in online music sales. People said it wasn't supposed to be possible to sell books online (cough, Amazon), software as downloads on mobile (cough, iPhone) … I could go on. The fact just don't match up with your argument.

    And look, at some point, if you think it's a more meaningful service to the world to make Twinkies or sugar water and not music and we shouldn't pay for music, fine. But clearly plenty of people disagree.

    I have deep reservations about the blanket license, but you're making assumptions about details that haven't really been settled yet. And one clear point is that the system is intended to be voluntary, meaning students who don't download shouldn't have to pay. I'm not saying it's a great idea – I'm saying we actually need more data to judge, which was the argument over on Ars Technica.

    The idea that a big company like Sony is going to go out of business and record industries will cease to be seems to me hopelessly naive. They're sitting on tons of cash, they're still selling really remarkable quantities of clearly outdated distribution formats (like CDs), and online sales are growing with *more* mobile distribution outlets opening up. And ironically, this "sky is falling" attitude was largely promoted by said record industry. It's partly legitimate urgency about a changing business climate, it's partly ignorance, and it's partly a campaign of fear that makes it easier for them to justify things like rampant litigation. Obviously, tectonic changes are in progress, but waiting for collapse hardly seems strategic to me. And assuming the record industry won't profit on *any* of those changes ignores the facts on the ground.

  • Further to that argument, here are the 2007 *growth* numbers — very much looking forward to the release of 2008. These come from the RIAA:

    2007 over 2006:
    Digital single downloads – up 60%(!)
    Digital album downloads – doubled in a single year
    Music video downloads – quadrupled in a single year
    Total digital value up 75%
    Mobile: up 85%
    Subscription – a supposedly "dead" model – up 35%
    Digital performance royalties: up 15%

    In fact, total UNIT sales for digital *and* physical were up 22% – that's lumping in declining CD shipments

    So, there's your "dying" industry. It's simple a transition from physical to digital media, and initially, it's not as profitable as physical media had been *if* you count physical CD's somewhat inexplicable bubble in the late 90s. Look further back and even that looks historically not so bad.

    This is simply, factually NOT the collapse of an industry, not because of declining CDs, not because of piracy, and not because of the shift to digital.

    Not to mention that, but what was profitable for that industry was never directly relevant to musicians. The fact that people pay for music IS relevant, however. And it seems really absurd to me that musicians would bend over backwards to try to argue people shouldn't or don't want to pay for a product *they* produce when it's obvious that's not true.

    In fact, the writing on the wall continues to be an industry that stubbornly won't switch to a new medium, even if it might be profitable to them. There are clear precedents for this, like the Big Three Automakers who stuck to SUVs even as sales collapsed because profit margins were higher, and missed out on potential profits from newer, lighter, more popular vehicles. And there's the Baldwin Locomotive Company, which stuck to steam train locomotives when everyone else went digital. The problem there isn't that people don't want trains or don't want cars (or whatever it is the company has to make) but that the specifics of the business in terms of format got lost.

  • J. Phoenix

    The difficulty is that the record industry at large has been glacially slow to even consider any alternative formats to CD's. We are now 17 years from mp3 being codified as a file format. But of course, it wasn't created by the music industry as CD's, cassette tape, 8 trac, or vinyl.

    This leads to a disgruntled comment about how many people have bought the exact same album multiple times over their lifetime…leaving alone how many albums sold under the popularity of a single song of the whole.

    It has only been after outside groups have stepped in and shown success that the record industry has begun to accept this change. iTunes & Jamster proved that people will pay money for digital music if given the option. Build a better mousetrap…

    Yet the RIAA insists upon legal action against whoever they think they can pin a case against regardless of whether or not they were even involved. And in the end, the pay-outs from that don't even go to the artists in question.

    Much like the royalty system that demands bulk payment for music played in public–but doesn't manage actual logs of exactly what was paid, only random samplings. And there's only two companies to distribute royalties. If you aren't with BMI or ASCAP, you're in the cold.

    In a digital age when we can accurately track how many people visit a website and which country they're from, you'd think the record industry could afford to buy a clue.

  • Seba

    Despite existing in a climate of "audiophiles" who deplore the idea, I get almost all of my music online through emusic, amazon and iTunes these days. Is the quality slightly inferior to a retail CD? Yes. Is it cheaper and more convenient? Definitely. In my case, who really wants 4,000 CDs lying around everywhere?

    I think that online sales will only continue to increase as we've thankfully gotten to a point where it is much more convenient to PAY for a music download than it is to dig around file sharing services — only the die hard people who feel completely opposed to paying for anything will be on the networks. I can have that album I've been looking forward to hearing in about 2 minutes in a consistent quality and already tagged — talk about instant gratification.

  • robin parry

    if i came and took your car, i'd be stealing
    i dont steal music, i make it. if you value your music so little then you devalue and abuse al musicians.

    all the rock stars i know have had THEIR music stolen to the point of exising on benefits and cat sitting, there's 4 i know, no one has 2 brass farthing to rub together because people stole their music and their publishing disapeared.

    i hope their stealing arse's rot in hell

  • robin parry

    p.s wasn't it graduates of this "school" that bankrupt'd the current economy?
    maybe their just teaching the next generation of thief!!!!!!

  • @Robin: No one is encouraging piracy; legal cases need some standards to be reasonable … one of the major points here was that the computer the industry wanted to seize *wasn't* used for the alleged theft.

    Also: online royalties are UP. So your publishing *hasn't* disappeared. End of story. Online tech has the potential to make everyone more money which is good for the economy.

    I think you mean Harvard Business, not Harvard Law, but the university isn't directly to blame for the economic meltdown, anyway.


  • @rex, you have a point.
    The sun is setting on the age of the rock star on a mega label. But there's still a market for music, especially good music, but even bad music has a market. Look at ringtone sales for instance … I mean what the hell? People DO want to buy this stuff.

    I think there's enough money in it to go around, actually, once you take the inefficiencies of the existing model out of the equation.

    Technology is helping us flatten the model every day. Sure there's a lot of kinks to be worked out, but the future looks very good to me.

  • Damon

    An unjust or abusive application of a valid law does not disqualify the validity of the law.


  • Damon:
    Absolutely. But that very argument is what the Harvard legal team is using against the RIAA plaintiffs. And "the law" tends to subject to interpretation — hence the ability of Harvard Law to charge tuition. 😉

    Of course, as I said, the Harvard team isn't questioning the validity of copyright law, but the abuse of it in the court system. And I'm saying the RIAA continues to focus on litigation at the expense of business.

    This is worth a separate post, but have a look at the RIAA website. There's a parable about this in retail, which is if you become so obsessed with shoplifting that you forget to actually *run your store*, you lose money. If you say "yes, but shoplifting is wrong," you weren't paying attention to the original point. By the same token, you wouldn't stop doing inventory control — you just would make sure it's one of a number of things you do, most of which are likely to involve getting people to buy what you're selling!


  • illegal sampling, forever.

  • gbsr

    well. despite the fact that the record industry has always been slow and thickheaded (goshdarnit the vhs will RUIN us), theres another thing that comes to mind aswell:

    if they were to let people download music freely, for a charge, they will let the customers decide what to listen to, not the other way around from what it is right now. bad news for them, wont see that many absolute music #whatever and the latest hot handpicked group of models posing as musicians.
    customers (Atleast some of them heh) are smart, but right now finding good music is hard because the labels rule the market and what gets published and what doesnt. letting people decide for themselfes could make the money flow somewhere else instead straight to the corporate heads.

    they raised hell when the vhs came, they raised hell then the cd came aswell. ofcourse theyre gonna raise hell now when you, the customer, have the ease of deciding yourselfes whats good music and whats not.

  • tMMt34

    Maybe I am missing something, but this sounds like "protection" money to me. Pay us to not come after you?

  • It's worth noting that the shift from physical to digital distribution happened simultaneously with a shift from a few artists selling millions of records to millions of artists selling a thousand records. The days of Madonna selling 10 million copies of a single album are closing.
    How they handle that shift will be more important than how they handle digital sales, imo. If you're not carrying a product that people want, it doesn't matter how you distribute it.

  • @tMMt34 – Exactly. It seems sinister, and a lot like the Mafia. It has gone beyond protecting their assets and has become a bully tactic, complete with threats. I believe this is precisely what the Harvard folks are trying to point out.

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  • Steve Kirn

    A classic indicator of imminent failure is when a business turns inward and looks for ways to protect its existing strategy, rather than finding ways to innovate (even — or perhaps especially — if that means breaking previously successful paradigms). This error is often dressed up in fancy terms (e.g., "maintaining focus on our core business"), but the reality has more to do with turf protection and resistance to reinvention of the business model.

    A classic example: the Baldwin Locomotive Company. They made outstanding railroad locomotives, culminating in their mission statement of the 1930's, "Baldwin will be the world's leading producer of high-quality, steam locomotives." And they were excellent at this! But their major new competition (for example, G.E.)came from outside their industry and business paradigm, marked by the switch to diesel-electric powered locomotives. They were never able to fully make that transition, and went out of business in 1956.

    RIAA is fighting a rear-guard action. They are turned inward, and missing the change in music access. Piracy is real, but protecting against it will not solve the problem.

    Sorry for the antiquated example, but it still rings true to me.

  • wlh

    While the RIAA's legal actions are sensational and therefore draw a lot of attention, they RIAA isn't and can't be the focal point of a solution to this problem. A solution must come from the technology industries and communications / networking communities. The RIAA did not invent or popularize vinyl, neither did they invent or popularize CDs, and they won't invent or popularize digital formats either. They are tiny compared to the industry giants who create these technologies.

    But other than "no DRM", what coherent solution have the technology companies and communications companies put forward and gotten behind? "no DRM" and "no lawsuits" isn't a solution that takes artists into account, and it's not intended to be; it's a way of kicking an obstacle to consumerism out of the road.


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