Ilana Mercer, July 23, 2003

Like any good trade union, the Recording Industry Association of America is wielding its government-granted powers to terrorize. The RIAA has so far secured 871 subpoenas against individual computer users suspected of sharing music files on the Internet, with roughly 75 new subpoenas being approved daily. Sixty million people are estimated to use online file-sharing services and, presumably, to be at risk of violating copyright. By the looks of it, the RIAA wants to put more people through the courts than the failed and immoral Drug War has.


Rising fascism and the ease with which the courts are willing to compel business to suspend privacy commitments to clients is working in the RIAA’s favor. The group is seeking to subpoena Internet service providers like Verizon for the names of their alleged copyright-infringing clients. A federal judge in Washington, D.C., has approved the sweep, and has instructed service providers to hand over client lists.


Targeting individual computer users is a departure from the RIAA’s previous tactic, which was to hold providers of the file-swapping service responsible for alleged copyright violation. The change flows from recent legal rulings. These are making it hard for the organization to target the software makers.


Peer-to-peer swapping is now facilitated with the aid of software that allows individual users to connect to each other directly, without the need for “a central point of management.” A court in the Netherlands, followed by a U.S. District Court, thus found that makers of the software such as Morpheus, Kazaa and Grokster weren’t in violation of the law because they don’t host any lists or files of copyrighted material on their sites and thus have no control over how the software is used.


In this, Kazaa and its peers depart from Napster, their predecessor, which did store lists of copyrighted items on the site. Kazaa succinctly explains the works:


Peter downloads Kazaa Media Desktop and installs it onto his computer. Mary also has KMD installed on her computer. Peter uses KMD to search for a file he is looking for. KMD finds the file on Mary’s computer. Peter can now download the file directly from Mary.


Peter and Mary, however, have caused the protection racket that is the RIAA to rise up on its hind legs. The kids are said to be cutting into profits the industry believes it is owed. Never mind that the market for multimedia such as music videos and DVDs is growing in value, “global sales of recorded music fell 7 percent in 2002,” reports the Wall Street Journal. For this, the RIAA blames Peter and Mary and wants them to pay for the “losses.”


The socialistic calculation the RIAA has in mind bears no resemblance to the profits earned in a free market. To illustrate this, as well as the egregious infringement of real rights that arises when legal force is used in the protection of ideas, imagine you are a garment designer. You hope to sell 100 original shirts. A client buys a shirt, and, being a skilled seamstress, she knocks off 99 shirts for her friends. Since you believe you have a property right in the design or the configuration of the garment, you sue her for infringing those ‘rights,’ and depriving you of your alleged profit on 99 unsold shirts. Your notion that you have a property right in this intangible thing has caused you to seek to violate the very real liberty and property of the seamstress, whose only “crime” is to use your idea to fashion her own fabric /property in a similar shape.


The logic at work in the RIAA’s claim against individual swappers is not much different. What is being traded online is the legitimate CD property of the traders. I buy a CD. If our legal system honored property rights, then this purchase would entitle me to use the CD, my tangible possession, in any way I wish. If I want to use my CD burner, which I have not swiped, to burn a copy for a friend, the CD is mine to so do. If I want to make my CD available to a larger group of Kazaa-mediated recipients in exchange for their offerings, it’s my right and theirs to so do, except that the RIAA and the people it represents imagine they have a property right in every tune. It ought not to, but this state-granted monopoly gives the artist a right to dictate to me how I am to use my corporeal CD property.


The same central-planner’s understanding of profit that made you think the enterprising seamstress owes you for the 99 shirts you didn’t sell is at play here. Just as there is no way of knowing that, had they not received 99 shirts gratis, the seamstress’ friends would have purchased an original blouse from you, there is no way of knowing if, deprived of their right to transact online, and at roughly $18.00 a pop for a new release, online music swappers would be purchasing the industry’s overpriced CDs.


The billions of exchanges facilitated online originate with the property of the participants. Someone bought a CD, was given a CD, or burned a CD, and began the ball rolling on Kazaa, right? Had the people exchanging files online broken into a store and stolen the items they trade online, then there would be reason to apprehend them for theft.


To paraphrase libertarian writer James Ostrowski, the law, once again, has criminalized naturally lawful behavior by citizens while legalizing naturally criminal behavior by the state and its beneficiaries, to wit, the RIAA.



July 23, 2003

CATEGORIES: Capitalism, Free Markets, Intellectual Property Rights, Music, Socialism

Leave a Reply