The RIAA has framed the issue of music sharing as piracy. While that fits their interest in preserving a traditional business model, the indicators are increasing that the real issue is about a cultural change in how information is gained, used, and shared. While a result of technology, the effect is both a cultural change and a gap in generational viewpoints. I use “generation” loosely here as a marker for what Marc Prensky has called the differentiation between Digital Natives, Digital Emigrants. Other indicators for how information sharing as a life-process has become embedded in social culture are the advent of services such as myspace, flickr, youtube, facebook, and twitter. Twitter, in particular, embodies the social technology of sharing, briefly, “what I’m doing” and “what I’m listening to”. See also, The Social Life of Information by John Seeley Brown and Paul Duguid.
Another indicator of the shift from passive listening to music to co-living music with others shows up in From Major to Minor, a 10 January story on the music industry in the Economist.
In 2006 EMI, the world’s fourth-biggest recorded-music company, invited some teenagers into its headquarters in London to talk to its top managers about their listening habits. At the end of the session the EMI bosses thanked them for their comments and told them to help themselves to a big pile of CDs sitting on a table. But none of the teens took any of the CDs, even though they were free. “That was the moment we realised the game was completely up,” says a person who was there.
The article goes on to describe business uncertainty and the emerging use of of free music combined with indirect packaging (e.g. music distributed with cell-phones) as a means to create income. To be clear, there are indeed proposals and discussions about other means of creating income for performing artists. The Electronic Frontier Foundation (EFF), as well as funding legal counter efforts to the RIAA, has proposed using subscription services to generate income. In an 18 December article for Wired, David Byrne discusses both economic survival strategies for artists along with industry failings. The accompanying audio clips, such as “The people who know how to do this are the ones you fired” are well-worth a listen.
Still, the RIAA continues to use the heavy legal fire-power to resist changing social paradigms. While there’s been some recent controversy over whether statements made in the Jammie Thomas trial implying that ripping your own CDs is illegal were actual policy, copyright expert William Patry dug up a 1987 RIAA statement on home taping made during a joint legislative hearing.
Thus, there is no personal use exemption, nor any fair use immunity for home taping. Contrary to the premise of the question, there is no distinction between commercial and home personal taping.
This appears to remove a lot of the ambiguity about the level of control the RIAA wants. Still, all of this only sets the stage for the issues of social change and insurgency that more drive my own interest.
Technologically driven changes in social perceptions and attitudes are not new. They occurred both with labor rights stemming from the industrial revolution and with civil rights spotlighted by national television broadcasts. In both cases, some segment of the legal/justice system was initially used to attempt to suppress the civil unrest. The first state police emerged in the U.S. following the anthracite mine strike of 1902 in Pennsylvania. President Theodore Roosevelt noted that the Pennsylvania State Police were intended to replace the infamous Coal and Iron Police, the private company police used to counter unionism:
When the laboring masses locked in mortal combat with the vested interest, the State stepped in to prove her impartial justice by selling her authority into the vested interests’ hands! — whenever the miners elected to go out on strike — they invariably found the power of the State bought, paid for, and fighting as a partisan on their employers’ side. Nor was there any attempt made to do this monstrous thing under mask of decency.
Before the passage of the National Labor Relations Act in 1935 and it’s upholding by the U.S. Supreme Court in 1937, usage of the police power of the state to suppress labor organization was common, as exemplified by the 1934 West Coast Waterfront Strike. It was almost exactly thirty years later, that President Lyndon Baines Johnson maneuvered the passage of first the Civil Rights Act and then the Voting Rights Act. The story of this aspect of LBJs political savvy is told by Ronald A. Heifetz in his book Leadership without Easy Answers.
Johnson intended to mobilize the nation as a whole to work on issues that had been avoided for nearly two hundred years. Yet mobilizing the society to tackle hard problems and learn new ways required far more than fashioning deals in the legislature; it required public leadership. Johnson had to identify the adaptive challenges facing the nation, regulate the level of distress, counteract work-avoiding distractions, place responsibility where it belonged, and protect voices of leadership in the community. Nowhere did he illustrate this strategy of leadership better than during events in Selma, Alabama.
Heifetz continues on to describe how Johnson held off taking early action as tension built up around Selma. The dissonance between what people believed about values of fairness and justice in the U.S. and what they were viewing on television continued to ripen. When Johnson finally did act, at the explicit request of Alabama Governor George Wallace, the nation was ready to hear and respond to his televised speech, made before a joint session of Congress, advocating passage of a strong voting rights act. The dissonance between belief in human rights and values and the use of police forces to suppress them had become too strong and the nation was ready to act. At this point, it was not Johnson’s solution but the nation’s solution that resulted.
With these precedents, the question is likely not if but when a burgeoning national awareness of lack of fairness will result in a Post-Millennium Digital Usage Rights Act. Such an act would follow the precedence of the relief from legal suppression afforded by the National Labor Relations Act and the Voting Rights Act. Already, Ars Technica reports that EMI may cease funding of the RIAA. To understand the relevance of this announcement, I turn to a group of military strategists who consider U.S. involvement in what they term “Fourth Generation Warfare”. Growing from a seminar on Fourth Generation War at the U.S. Marine Corps’ Expeditionary Warfare School in Quantico, VA, these strategists have produced an unofficial draft update to FMFM-1, the Field Marine Force Manual originally issued by the U.S. Marine Corps in the early 1990’s. While the original manual dealt with maneuver warfare, the update deals with war in which all involved are not state entities. We thus come to situations in which superior firepower and the shock and awe strategies of intimidation are counterproductive.
The changes point to another of the dilemmas that typify Fourth Generation war: what succeeds on the tactical level can easily be counter productive at the operational and, especially, strategic levels. For example, by using their overwhelming firepower at the tactical level, Marines may in some cases intimidate the local population into fearing them and leaving them alone. But fear and hate are closely related, and if the local population ends up hating us, that works toward our strategic defeat. … This leads to the central dilemma of Fourth Generation war: what works for you on the physical (and sometimes mental) level often works against you at the moral level. It is therefore very easy in a Fourth Generation conflict to win all the tactical engagements yet lose the war. To the degree you win at the physical level by pouring on firepower that causes casualties and property damage to the local population, every physical victory may move you closer to moral defeat. And the moral level is decisive.
When the RIAA pursues a course of intimidating whom they wish; when they use overwhelming legal firepower to ensure that those who might oppose them in court face total financial ruin, they are engendering just the loss of moral authority discussed by this quote from FMFM-1A. When they saddle a parent with legal judgments of hundreds of thousands of dollars (c.f. legal history by the EFF), judgments that few parents have means to ever pay off, the RIAA impacts both the parent and the entire opportunities the parent can provide for their children. Most parents will find extreme dissonance with such actions. This is not a proportional penalty for unethical gains, but a recourse to heavy bombing. Intimidation, as the manual suggests, begets hatred, and hatred will never beget customers. Those who oppose such strategies don’t have to win all the court battles, they only have to use economic means to convince first the big four of labels, and then smaller labels that such tactics aren’t in their strategic interest. They only have to make it difficult and more expensive for the RIAA to pursue their tactics. Eventually, the RIAA will be Riding the Failure Cascade. Given their tactics, few will shed tears.