A couple of recent developments indicated how copyright law – especially as it relates to recorded music – might evolve in coming years, and how artists might react to it.
Last week, a Brainerd woman was ordered by a federal jury in Duluth to pay the Record Industry Association of America more than $220,000 for violating copyright law by sharing 24 songs with peer-to-peer download services.
And today, the English band Radiohead, which has sold tens of millions of albums worldwide, made its new album available via its online store. Not much novelty there, except for the price: The album is available for download for any price the purchaser wishes to pay.
As of this morning, there was no word on how many “copies” had been sold, but a look at blogs and news articles about the release showed that people are tending to pay between $5 and $10 for it, with very few taking advantage of the honor system by leaving only pennies.
“Ten years ago, the major labels could actually tell retailers what price points to set within their own stores,” media professor Adam Sinnreich said in an MPR news story about the Radiohead idea. “Then the Department of Justice said that wasn't right, and you saw retailers begin to offer more flexible pricing in stores. This is a further extension of that process.”
In light of the Radiohead phenomenon, the events in Duluth seem as though they happened in a different universe. By reacting to random downloaders with litigation instead of embracing the technology that allows it the way Radiohead has, the record industry is only feeding its public image as an antiquated business model driven by greed and desperation.
Already, the Duluth decision is making copyright attorneys and other experts wonder out loud if applying the law can continue to stem the tide of downloading, and whether some copyright laws are outgrowing their effectiveness. Use of peer-to-peer software is growing by double-digit percentages each year, so the genie is long out of the bottle – and suing random downloaders in hopes of small settlements isn’t going to put it back. Maybe it will soon be time to adopt Radiohead's "tip jar" technique on a wider basis.
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Two interesting follow up items. First, the Radiohead experiment was not all about downloading music in lieu of purchasing the normally more expensive CD (and profitable?). In talking about the name your own price experiment, a recent issue of Digital Music News quotes Radiohead manager Bryce Edge as saying "If we didn't believe that when people hear the music they will want to buy the CD, then we wouldn't do what we are doing." And the really curious item reported at Forbes.com: Even though persons wishing to "purchase" the Radiohead album were given the opportunity to pay nothing for the download, over 500,000 illegal down loads from BitTorrent souces were reported for the same time period that the Radiohead website promotion was in effect. I guess it is just more fun to steal.
C. Stephen Weaver
http://musicrowlawyer.typepad.com
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