music and movie industries are aggressivly pursuing and
suing Internet file sharersbut critics say they're
only alienating the very customers they're so desperate
is fucking bullshit. i will never buy a CD again. I am going
to download as much as I fucking can now.
message posted on chewplastic.com last month, after the
Recording Industry Association of America announced it would
begin suing individuals who illegally share copyrighted
Last September, 17-year-old Ben Albert was summoned to the
dean’s office at the University of Georgia, where he was
a freshman biology major. Just a few days earlier, he had
downloaded a movie, Austin Powers in Goldmember,
off Kazaa, currently the world’s most popular file-sharing
Available free to anyone with a PC and an Internet connection,
Kazaa allows users to swap movies, music and more with reckless
abandon. At any given time, up to 5 million people might
be trading files through Kazaa.
In downloading Goldmember, Albert knew what he was
doing was technically illegal. But like the 60 million or
so other Americans who share movies and music online, he
felt comfortable playing the percentages. Somehow, though,
the Motion Picture Association of America traced the download
to the UGA campus. It dashed off a sternly worded letter,
which ended up in the office of Kim Ellis, UGA’s associate
dean of student affairs.
Ellis had seen letters like these before. Every few months,
the school gets another spurt, if not from Hollywood, then
from the Recording Industry Association of America, demanding
that the administration crack down on students who traffic
in copyrighted material. Ellis laid out Albert’s options:
He could ’fess up, or he could face a campus judicial review.
“I figured I’d just admit my guilt,” says Albert, who is
For his sins, Albert found himself on a six-month behavioral
probation. He also had to write a paper on copyright law.
His friends, meanwhile, were shocked—not that he’d downloaded
a movie, of course, but that he’d actually been caught.
After all, downloading has become as common to 21st-century
college students as getting baked was to their parents.
Which is to say, it’s still technically illegal, no matter
how many people are doing it.
it comes to computers and technology, it’s hard for people
to understand the things they can do with one or two keystrokes,
until you bring it into a real-world situation versus a
virtual-world situation,” Ellis says. “Do you walk into
a Blockbuster and walk out with a movie without paying?
That’s stealing that movie.”
Ever since Napster first brought file sharing to the masses
in 2000, the recording industry has been trying to make
the same argument to people like Albert, appealing to their
sense of fair play, of capitalistic ethics, of quid pro
quo. To assure us that it’s not just their own asses they’re
worried about, record execs trot out the artists themselves,
who conjure up a world where musicians, made destitute by
their own cheating fans, go back to pumping gas and waitressing
at biker bars. No surprise that this PR campaign has been
less than effective.
stars who make $50 million are complaining they don’t make
enough money,” Albert says. “The regular person is like,
‘Are you kidding me?’ It makes you just want to download
and make them mad.”
Well, Ben, it’s worked. In July, the RIAA ramped up its
assault on illegal file-sharing, bringing the battle right
to the consumers. Emboldened by a recent court decision
that went its way, the RIAA is forcing Internet service
providers across America to hand over the names of hundreds
of clients who download music online. So far, upwards of
a thousand subpoenas have gone out. They will serve as the
basis for lawsuits, which, by law, can demand up to $150,000
per pirated song. The entertainment industry even has its
own stooge on Capitol Hill: Rep. Howard Berman (D-Calif.),
who, in the past year, has introduced legislation that would
involve the FBI in investigating downloading, that would
permit copyright holders to sabotage file-sharing networks,
and that would even send downloaders to jail. (On what is
surely an unrelated note, Berman’s 2002 reelection campaign
was nudged along by more than $220,000 from the entertainment
Yes, it takes a certain arrogance—some may even say rank
stupidity—to sue the very people who otherwise might be
your customers. Another industry might have seen a revolutionary
technology like file sharing as a means to cultivate new
customers, to broaden their client base, to find new ways
to deliver their product to more people. Instead, the RIAA
has resisted the technology, pouting about thieving fans
and proceeding full-steam ahead with a tactic that even
some record labels say is ill-advised.
think it’s ridiculous,” says Andrea White, label manager
for Daemon Records, an independent label founded by Indigo
Girl Amy Ray.
Already, before the first lawsuits have even gone out, the
downloading community is responding. From applications that
cover one’s tracks in cyberspace, to digital hubs based
in Scandinavia, consequence-free downloading is alive and
If renegade programmers have their way, the recording industry’s
efforts to save itself and its outdated mode of business
will only hasten its demise.
You could say this is all Bill Clinton’s fault. In 1998,
he signed into law the Digital Millennium Copyright Act,
which sought to provide new ways for copyright holders to
protect their work in the computer age. Today, most agree
this law has stood the test of time about as well as Michael
Jackson’s complexion. Vague in spots, too specific in others,
it is woefully ill-equipped to deal with a technology that
changes so swiftly. The act, however, has become the RIAA’s
most powerful weapon in its war against individual downloaders,
which began a year ago this month when, on a Tuesday afternoon,
investigators for the RIAA logged onto Kazaa.
Kazaa is so easy to use, it’s almost shocking: Type in the
song you want, hit search, and watch as your options scroll
before you. Click on a selection, hit download, and within
seconds, depending on the speed of your connection, a digital
copy of the song is in your computer, where you can play
it at your leisure, upload it to an mp3 player, or burn
it onto a CD. Those same songs stay in a shared folder,
where they become available, in turn, to other Kazaa users.
Downloaders automatically become uploaders, and in this
way, the love is spread.
As investigators searched through the offerings on Kazaa
that day, they came across a user who’d named himself “simonglove.”
While simonglove’s collection of songs proved there’s no
accounting for taste—the White Stripes’ “Hotel Yorba” was
immediately preceded by Hootie and the Blowfish’s “I Go
Blind,” for example—its volume was impressive. In all, simonglove
listed 707 songs available for download to other Kazaa users.
Investigators for the RIAA tracked simonglove’s Internet
Protocol address—basically, a digital footprint you leave
every time you’re online—to Atlanta-based EarthLink.
Citing the Digital Millennium Copyright Act, the RIAA requested
and received a subpoena from a federal court clerk in Washington,
D.C. That subpoena, and similar ones sent to Verizon, another
Internet-service provider, led to a lawsuit that the ISPs
have now lost. In early June, Verizon and EarthLink grudgingly
turned over the names. Verizon is appealing the case, but
until the next court date, in September, the industry is
free to go subpoena crazy.
the DMCA was passed, there was a need to deal with copyright
protection,” says Les Seagraves, EarthLink’s chief privacy
officer. “Because anybody could get a Web page and set things
up. This part was passed to give legitimate copyright holders
a fairly simple method to deal with the fact that their
works may be published somewhere else and their copyrights
But Seagraves now worries that the RIAA’s court victory
will permit anyone with an ax to grind to get a subpoena
and force an ISP to give out information about a customer.
After all, it’s not a judge that issues the subpoena; it’s
merely a court clerk. As Seagraves says, there’s “no due
process, no judicial oversight.” Last week, the Associated
Press reported that the RIAA had so far requested 871 subpoenas
from a district court in Washington, D.C. Verizon alone
has received more than 150.
ISPs feel they’ve been dragged into the middle of a fight
between the recording industry and illegal downloaders.
To them, it’s like penalizing the phone company because
someone is making crank calls.
Says Jennifer Hightower, assistant general counsel for Cox
Communications: “It’s not our fight, but they’re putting
the burden on our back.”
But if the RIAA is exploiting weaknesses in the law, so
too can ISPs. Nothing in the Digital Millennium Copyright
Act requires an ISP or a university to keep records on what
IP numbers are assigned to what users. Feasibly, then, an
ISP can’t turn over what it doesn’t have. The recording
industry would have to take its fight elsewhere.
The music business’ antago-nism toward technology is nothing
new. In the early 20th century, a music publisher sued the
maker of a player piano, claiming the rolls that were fed
into the piano to play one of the publisher’s songs constituted
copyright infringement. The case went to the U.S. Supreme
Court, where the publisher lost. Over the next century,
the music industry has fought virtually every other technological
advance—advances that, as it turned out, would end up helping
their business. Alan Greenspan, for example, is haunted
by comments he made in 1983, when he told a Senate subcommittee
that “unless something meaningful is done” about consumers
taping copyrighted material onto cassettes, “the industry
itself is at risk.”
Still, the industry’s apoplexy over downloading music is
not without some justification. There are, literally, billions
of songs copied over file-sharing networks every month.
Unlike taping, which results in a quality loss from the
original, the millionth copy of an mp3 download is as good
as the first (although audiophiles will say an mp3—which
is compressed—is not as pristine sounding as a legitimate
store-bought CD). And on a file-sharing network like Kazaa,
popular songs spread faster than a cold in kindergarten.
BigChampagne is an Atlanta-based company that monitors what
songs are most often swapped online. It counts as its clients
some of the world’s biggest record labels, who, even though
they disparage the means, are eager to see what songs are
most often traded. What’s surprising—or not surprising,
depending on your perspective—is that BigChampagne’s “TopSwaps”
list looks (at first glance anyway) similar to Billboard’s
list of songs played and sold in conventional formats. For
instance, during the week of July 14, the most downloaded
song on file-sharing networks was Chingy’s “Right Thurr.”
Billboard’s Top 100, meanwhile, had “Right Thurr”
at No. 4.
With these comparisons in mind, it’s probably no surprise
that last year the number of CDs sold in the United States
fell 9 percent from 2001, a year that was itself down 6
percent from 2000.
cycle is bigger than anything in the past, but at this point
it’s not enormously bigger,” says Stan Liebowitz, an economist
at the University of Texas at Dallas, who authored what
is perhaps the only academic study looking at the effect
of mp3s on record sales. “If you have one more year like
it, you won’t have anything like it in the modern era.”
The record industry isn’t wasting time. Before the Verizon
case was even decided, the industry had already taken the
battle to what is widely perceived as the biggest culprits—college
students. In April, the RIAA sued four students at four
different universities, accusing each of them of running
local file-sharing networks on their respective campuses.
One of those was Jesse Jordan, a 19-year-old student at
Rensselaer Polytechnic Institute in Troy. Last October,
Jordan was, as he says from his parents’ home on Long Island,
looking for “something to waste some of my spare time on.”
Within RPI’s computer network there were several search
engines already, where students could troll for songs in
their neighbors’ hard drives. But, as Jordan says, “there
was room for improvement.” Often, a search would freeze
the browser if you clicked on the folder of a user whose
computer was turned off.
Jordan’s better mousetrap was called ChewPlastic. News of
it spread through word of mouth, and from signs he posted
around campus. He figures half the student body used ChewPlastic
at one time or another to trade files. But in April, Jordan
learned he was being sued. In its lawsuit, the RIAA said
he had “hijacked an academic computer network and installed
on it a marketplace for copyright piracy.”
didn’t want to settle,” Jordan says, but fighting a multibillion-dollar
lawsuit against the record industry, win or lose, would
have cost his family too much. The two sides settled on
Jordan’s life savings: $12,000. At the settlement, Jordan
recalls a snide warning from an RIAA attorney: “You don’t
want to have another visit with a dentist like me.”
Illegal downloading, Jordan says now, “may very well be
hurting their business. But they’re not taking the right
approach. You can’t sue potential customers and then expect
they’ll buy your stuff.”
Jordan, as it turned out, had the last laugh. Right after
the settlement, he posted a link on ChewPlastic.com that
allowed sympathizers to help replenish his savings. Within
six weeks, he’d recouped everything, plus $5.67.
The RIAA’s vendetta against downloaders might not be making
them any new friends. But then again, they didn’t have many
to begin with. Music fans loathe the record business. To
them, the industry has been taken over by MBAs who screw
artists and customers alike. Why else would the cost of
a new CD have climbed to as much as $20, when other technologies—CD
players, DVD players, VCRs—have plummeted in price?
Actually, as Liebowitz found, the price of CDs has actually
remained stable over the years, adjusting for inflation.
In fact, thanks to discount stores such as Wal-Mart and
Target, the real cost of CDs, in some cases, has decreased
What’s more, while the cost of manufacturing a Kid Rock
CD might only be pennies, the price tag pays for much more,
which is why it’s vital that the biggest-selling artists
not see their product given out for free via Kazaa.
fans, at whom pop music is aimed, tend to be comfortable
with computers, which is why downloading hurts the best-selling
hits more than any other kinds of music,” Hilary Rosen,
the former head of the RIAA, told The New Yorker
recently. “As a result, records that might have sold 8 million
copies now sell 5 [million]. Unfortunately, these blockbuster
sales pay for the development of new artists—Kid Rock pays
for all the others.”
How to reconvert those Kid Rock fans back into paying customers
is the question that will determine the fate of the recording
industry. Certainly, it’s not like the labels haven’t come
out with their own sites where they sell music online. Take
pressplay.com, an online music service run by Sony and Universal,
two of the Big Five music labels. The site seems simple:
At a cost of $9.95 a month, for example, you can stream
or download as many songs as you want. But cancel your membership,
and you lose your downloads. Of course, you could opt for
a “portable download” package, a clever euphemism for what
the whole point of downloading music is: burning to a CD.
Pressplay advertises “portable downloads,” but only in packs
of five, 10 or 20. So actually buying music, as opposed
to renting it, is a whole other expense.
Ironically, surveys have shown that most downloaders actually
would be willing to pay for their downloads if there were
an option as easy and as comprehensive as, say, Kazaa. Apple
realized this last spring, when it introduced iTunes to
Mac owners. Find a song you like, and download it for 99
cents. Or, buy a whole album for $10. No strings. No subscription
hassle. The song is yours to keep or burn or do with what
you want. Even though Mac’s percentage of the personal computer
marketplace is in the single digits, iTunes so far has sold
more than 5 million songs.
On July 22, the founder of Buy.com launched buymusic.com,
intended as an iTunes for PCs. It claims to offer 300,000
songs, and individual downloads are available for between
79 cents and $1.19. However, each song has its own rules
regarding how many times you can burn it to CD, or transfer
it to portable mp3 players. It is, quite frankly, annoying.
Left out in the cold are traditional music retailers, who,
for the most part, can’t offer singles to customers. “If
a customer comes in, they have to buy the whole thing,”
says Eric Levin, owner of Criminal Records in Atlanta. Levin
has overheard the following remark more than once in his
store: “Don’t buy it here; I’ll just download it for you.”
Three years ago, that made him cringe. But he’s more philosophical
about it now, figuring that if the big labels suffer, independents
will step in. Plus, Criminal Records is more than records—it’s
DVDs, comics, magazines and toys.
the big labels have been doing for the last five years is
a mistake,” he says. “I don’t see peer-to-peer file sharing
as the worst thing that can happen. I see it as great radio.
When it works correctly, it’s a great sales tool.”
BigChampagne’s CEO, Eric Garland, would tend to agree. After
three years of tracking downloads, he says appearances can
be deceiving. For instance, one of the songs getting the
most airplay currently is Beyonce Knowles’ “Crazy in Love.”
And yet, Garland says, while it’s a relatively popular download,
“you won’t see it on our Top 10 chart anytime soon.” Garland’s
possible reasons for such discrepancies illustrate the conundrum
facing industry watchers.
First, Billboard’s Hot 100 ranks singles based on
airplay and album sales. And, as Garland notes, how often
a song is played on the radio doesn’t necessarily reflect
its popularity among listeners, as anyone who can’t escape
Uncle Kracker’s remake of “Drift Away” will tell you.
BigChampagne’s rankings, however, track raw consumer demand:
what listeners choose, as Garland says, when faced with
an all-you-can-eat buffet. What’s important to remember
is that downloading is primarily a song-driven phenomenon.
Most people, he argues, don’t download entire albums from
an artist, but rather the song they’ve heard that they want
to own. This subverts the traditional model, in which a
listener hears a song on the radio, or sees a video, or
reads a positive review and goes out and buys a CD with
a dozen songs.
most paradigm shifts, it’s good news and bad news,” Garland
says. “On the one hand, the historical model really sort
of forces people to try all your material. You bought the
CD and said, ‘Hey, there’s a lot of great stuff on here.’
And you grow familiar with the collection of work. The artists
are saying, ‘Wow, what happens in a world where people aren’t
forced to listen to the rest of my stuff? That’s a really
scary prospect.’ ”
But there’s another way of looking at downloading, Garland
says. “Now there’s a venue in place for people to try and
sample more of your material with little or no out-of-pocket
cost. I do believe that people are discovering artists online.”
Artists with no one break-out hit then, but with a consistent
quality of songs, could see album sales helped by downloading.
Garland believes the death of the album format has been
exaggerated. “There are some types of artist—I’m thinking
of those that have a sound and a culture associated with
what they do—that don’t need to worry about the death of
the album because there’s always a segment of the marketplace
that’s dying to hear something they’ve recorded.”
The music business, Garland says, fears the loss of control
that downloading brings. But whatever the outcome of its
litigious kick, it cannot fight the future. “We’re entering
an era where the consumer is going to enjoy a lot more control
than what he has enjoyed.”
Of course, the consumer already enjoys plenty of control,
thanks to Kazaa. And as the RIAA cracks down on users, the
downloading community is simply pulling up stakes and finding
somewhere else to go.
Nick works in information technology at a company he won’t
disclose, in a sterile office park north of Atlanta. Nick
is in his early 20s, but in the accelerated evolution of
file sharing, he is one of the pioneers. He’s been downloading
music off the Internet since the mid-1990s, back when connection
rates were measured in bauds and Napster was just a glint
in founder Shawn Fanning’s eye.
As a kid, Nick’s first computer was a Commodore Vic 20.
From there, he graduated to a Tandy 2000. Today his setup
at home includes six hard drives, thousands of dollars worth
of equipment and, of course, a DSL connection. At work,
he’s even more plugged in, thanks to a wireless modem that
lets him download from his laptop anywhere in the building.
Which is what he’s doing now, as he unsnaps his Dell laptop
at a cafe booth a few floors down from his office. Nick
figures his various hard drives contain about 500 gigabytes
of downloaded material. Most of that space is taken up with
movies, but he also has video games, pirated software and,
of course, music. About 1,200 CDs’ worth. “I haven’t bought
a CD in over two years,” he says.
As he scrolls through his collection, it’s evident Nick
has more stuff here than he could ever really listen to
or watch once, much less savor and enjoy. For Nick, and
for those like him, it’s not about the music. At least not
entirely. “It’s like a collector’s impulse,” says Fred von
Lohmann, attorney for the Electronic Frontier Foundation,
which is kind of an ACLU for the digital age. “They just
want 50,000 files.”
Nick wouldn’t disagree. But it’s more than that to him.
To him, acquiring for free that which others pay for is
Once, he downloaded a pirated copy of Microsoft’s Windows
2000 Datacenter, an operating system designed to run a business’
computer network. It can retail for $30,000. Technically
yes, he stole it. But listen to his argument: “If you were
never going to buy it, are you really stealing it?”
A morally bankrupt position, perhaps, but an oddly compelling
one. In truth, illegal downloading isn’t really stealing
in the traditional sense, any more than sneaking into a
concert is stealing. Sure, if everyone did it, there’d be
chaos and anarchy, and our artistic landscape would change
OK, maybe it is stealing. But Nick isn’t apologizing.
downloading, I live a better lifestyle. I can buy a nicer
car, pay the rent, take my girlfriend out.”
As Nick talks, he conducts a virtual tour of the treasures
awaiting a patient and persistent downloader. First off
is Kazaa. Its massive popularity means it arguably has more
songs than any other file-sharing network. Yet with the
RIAA cracking down, what’s a Kazaa’er to do?
Never fear; Kazaa Lite is here. Despite its name, Kazaa
Lite is not a scaled-down version of the original. Rather,
it’s an improvement. On Kazaa Lite, you can tinker with
a setting to ensure that other users can’t tell what music—other
than the song they’re downloading—is in your collection.
In this way, the RIAA can’t tell how many files you have
available to share.
What’s more, Kazaa Lite purports to block the IP addresses
of RIAA computers, hindering the searches of record-industry
But Nick seems almost dismissive of Kazaa Lite. “Have you
ever heard of Direct Connect Plus Plus?” he asks.
Direct Connect connects not with other users directly, like
Kazaa, but through a hub. That hub is overseas, beyond the
reach of the RIAA. As he connects, a list of hubs with names
like “Buick’s Moviearena” scroll down the screen. Each hub
has hundreds of users. Unlike Kazaa, these hubs have requirements
of their members. If you want to download, you must have
a minimum amount of files to share. For instance, this hub
wants 70 gigabytes, which equates to dozens of movies and
thousands of songs. Nick, of course, has that and more.
He opens up a user’s list. Want to download Linkin Park’s
new album? How about The Hulk? What about The
League of Extraordinary Gentleman? Direct Connect is
a smorgasbord of entertainment.
One hub Nick opens boasts 5.42 terabytes available for trade—that’s
5,550 gigabytes. We’re talking whole libraries here.
Nick’s biggest surprise is one of the most implausible.
he says, “one of the best places to download stuff is, believe
it or not, on AOL.” Yes, America Online—that much-maligned
home to bored teenagers and hard-up adults. On AOL, there
are chatrooms, public and private. Enter the right private
chatroom and you won’t see any of the banal conversation
that chatrooms are known for. Instead, you’ll see a steady
stream of messages that are more symbols than letters. These
are downloaders, exchanging lists of material for trade.
It seems, though, that this kind of downloading would be
the most easily halted. All the RIAA has to do is find one
of the rooms, write down the member name and report it to
AOL, which, after all, is the parent company of Warner Bros.,
one of the Big Five labels.
Nick explains why this would be fruitless. Many of these
screen names, he says, aren’t even legit. They’re pirated
names, stolen by hackers from unsuspecting AOL account holders.
They’re untraceable. In Nick’s eyes, this practice crosses
a line. Downloading is one thing. Who’s the victim? Corporate
America? But hijacking individual screen names and passwords—that’s
going too far, it seems. Still, there’s a gleam in his eye.
all about keeping it free,” he says.
To be sure, downloaders such as Nick don’t have much to
worry about from the RIAA. “The sophisticated people will
always be able to stay one step ahead,” says Jim Butler,
a technology attorney and a board member of the U.S. Internet
Industry Association. “But that’s not who [the RIAA] care
about. The 20-year-old college student who has 5,000 songs—that’s
As the first lawsuits draw near, the drumbeat has grown
louder for a new business model for the entertainment industry.
Some have suggested a tax on blank CDs, with the pot of
money being divvied up based on what songs are downloaded
and how often.
But who determines how big that pot of money should be?
And what’s to keep a savvy musician from harnessing a bank
of computers and downloading his own song a million times,
so that he’ll get a bigger cut?
Others hope for a technological solution. “Digital rights
management” is a phrase heard often in the industry. Basically,
it refers to any technique that encrypts a CD, or keeps
it from being ripped and shared. But Nick only laughs at
that. “Anything they build can be unbuilt,” he says.
Meanwhile, the Electronic Frontier Foundation and other
groups are fighting the RIAA’s efforts to demonize file
sharing. Its “Let the Music Play” campaign, as von Lohmann
explains, is intended to “get people to start talking about
you really think suing thousands of people and jailing hundreds
more is really the right course of action here?” he asks.
“We have to create a mechanism for paying artists, because
file sharing is here to stay.”
Fennessy is news editor for Atlanta’s Creative
Loafing,where this story first appeared.