* Op-Ed: 'Amnesty' for Music File Sharing Is a Sham
By Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation.
(Note: this op-ed appeared in the September 10 issue of the LA Times)
Gee, wouldn't that make everyone happy...No one can hold a candle to the music industry when it comes to squandering an
opportunity. Having gotten everyone's attention by threatening to sue 60
million American file-sharers, flooding Internet service providers with more
than 1,500 subpoenas and on Monday suing hundreds of individual file-sharers
(or their parents) in federal court, the Recording Industry Assn. of America
has blown it again.
Here's what the RIAA has proposed as its "solution" to file-sharing: an
"amnesty" for file-sharers. Just delete the MP3s you've downloaded, shred
those CD-R copies, confess your guilt and, in return, the most change-
resistant companies in the nation will give you nothing. Oh, the RIAA promises
not to assist copyright owners in suing you. But its major-label members
reserve the right to go after you, as do thousands of music publishers and
artists like Metallica.
In other words, once you have come forward, you are more vulnerable to a
lawsuit, not less. This is more "sham-nesty" than "amnesty." What a waste.
Rather than trying to sue Americans into submission, imagine a real solution
for the problem. What if the labels legitimized music swapping by offering a
real amnesty for all file-sharing, past, present and future, in exchange for
say, $5 a month from each person who steps forward?
The average American household spends less than $100 on prerecorded music
annually. Assuming that many people will continue buying at least some CDs (a
recent survey by Forrester Research found that half of all file-sharers
continue to buy as many or more CDs as they did before catching the
downloading bug), $60 per year for file sharing seems reasonable.
And such a plan would surely be more popular than the use-restricted and
limited-inventory "authorized" alternatives. After all, the explosive growth
of file-sharing is the strongest demand signal the record business has ever
seen. The industry should embrace the opportunity instead of continuing to
thrash around like dinosaurs sinking in hot tar.
Rather than asking music fans to brand themselves as thieves, the music
industry could be welcoming them back into the fold as customers. Five bucks a
month doesn't sound like much, but it would be pure profit for the labels. No
CDs to ship, no online retailers to cut in on the deal, no payola to radio
conglomerates, no percentage to KaZaA or anyone else.
Best of all, it's an evergreen revenue stream - money that would just keep
coming during good times and bad.
It has been done before. This is essentially how songwriters brought broadcast
radio in from the copyright cold. Radio stations step up, pay blanket fees and
in return get to play whatever music they like. Today, the performing-rights
societies like ASCAP and BMI collect the money and pay out millions annually
to their artists.
It's easy to predict the industry's excuses: "We don't have all the rights."
"Antitrust law prevents us from acting together." "What about my cut of the
Puh-leeze. You tell us your industry's on the brink of extinction: It's time
to do something daring, not suicidal.
The labels can create a new business model that will serve as an example to
other copyright owners. After all, it's no more radical than their threatening
millions of Americans - customers - with ruinous litigation. What court or
regulator is going to get in the way of a new approach that turns fans back
into customers? Especially if the labels decide to offer a piece of the pie to
artists - the only group with a credible claim to victimhood, even if most of
their victimization has come at the labels' hands.
There are only two possible outcomes here: Either the music companies stop
whining and woo the 60 million potential customers who have voted with their
PCs for file-sharing, or some new companies will. There's no place in the
world for companies that are bent on holding back the future.
Let's see a real amnesty, one that displays respect instead of spite for