The Final Nail: Record Labels May Be Sealing Their Own Coffins

It has been almost ten years since the Recording Industry Association of America (RIAA) brought a lawsuit against Napster on the grounds of copyright infringement. At the time it was considered unjust to allow citizens to "steal" music that rightfully belonged to recording artists and record labels. Now, nearly a decade later, it is a citizen who is claiming that the RIAA is unjust, and that such lawsuits are unconstitutional. Joel Tenenbaum, a 24 year old graduate student at Boston University, was charged with downloading seven songs from a file-sharing network in 2005 and, as a result, may be facing over $1 million dollars in penalties. On his side, however, is Harvard Law School professor, Charles R. Nesson. Probably most famous for his defense of Daniel Ellsberg in the Pentagon Papers Case of 1971, Nesson is the co-founder of the Berkman Center for Internet and Society, a Harvard Law School research center that focuses on the legal study of cyberspace. So, could this be it? Could this be the final nail in the music industry's coffin, as far as their attempts to hold on to legal ownership of recorded material goes? If the counterclaim that Nesson filed less than three weeks ago is successful in overturning the case against Tenenbaum then it could be cited over and over again in other cases concerning illegal music downloading, or "copyright infringement." So, provided that the decision comes back in Nesson's favor, the RIAA will have to seriously reconsider the way in which they attempt to prevent the public from downloading music for free. In order to better assess this case, as well as the possible legal ramifications that it could lead to, I searched through the blogosphere for relevant and intelligent posts. The first one that caught my eye, entitled "Effort to Show RIAA Lawsuits are Unconstitutional" was written by Brian Lee Cober, attorney at law, and posted on his blog "Musiclawyer Musings." In his article, Cober, who has an emphasis in music business, discusses what Nesson's arguments will most likely be in the case, based on statements that he has already made, and explains what exactly makes the RIAA's lawsuits unconstitutional. The next piece that I decided to analyze came straight from the source, The Harvard Crimson Online Edition. In it, Crimson Staff Writer, Helen X. Yang, examines the case in a very unbiased manner, providing plenty of insight as to what is at stake in her article, "Nesson, Harvard Law Professor, Sues RIAA." After reading both of these articles, I decided to comment on them in hopes of gaining even more information on the subject, as well as to express my own questions and opinions. Both of these comments are shown below.

"Effort to Show RIAA Lawsuits are Unconstitutional"
Comment:
First of all, I would like to thank you for discussing the legal aspects of this counterclaim lawsuit by analyzing what Nesson himself has said on the matter. It is clear by your post that you have a clear and intelligent understanding of this case, and you make it much easier for the layman to understand. I find it humorous that you observe how "In the past, it's been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard." Also, as I am sure you will agree, I find it to be quite commendable that Nesson took the offensive in seeking out a student from Boston University to represent. Before reading your article, I had not considered the broader implications involved with this case, and simply looked at it in terms of whether or not the record labels had the legal right to claim ownership of digital music files. Now that I take a step back, however, I see how dangerous it can be for the Court to "put the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines." As we progress into the digital age it is important to recognize the "inherent dangers in allowing a single interest group, desperate in the face of technological change... to march defendants through the federal courts to make examples of them." I would like to ask you, however, what you think the RIAA should do about their current situation, given that they have lost billions thanks to the sharing of digital music files. Looking at the metaphor that Nesson gives about a ridiculous, and unjustly implemented speed limit, it is clear that the current system needs to change. Nevertheless, it is also apparent that some sort of regulations are necessary for speeding drivers, and the same may be true of file sharing, otherwise the music industry as we know it could fly off the road and burst into flames.

"Nesson, Harvard Law Professor, Sues RIAA"
Comment:
To start with, thank you for providing your readers with an extremely unbiased view of this case, which involves a professor from your own educational institution. From what I can see, the key concern in your article is not simply that the RIAA seems to be charging illegal music downloaders vast amounts of money, but WHY they are doing so. As you say, "According to RIAA spokesperson Cara Duckworth, the amount sought from Tenenbaum is undisclosed and left to the judge’s discretion, though Tenebaum may face over $1 million in penalties," and that is for downloading seven songs! The interesting part is that it seems fairly obvious to everyone involved that $1 million dollars is a completely unrealistic sum to charge considering the offense. Instead, the purpose of these outrageous numbers is to force those being prosecuted to settle out of court at a price which the RIAA can pretty much set at whatever they want. As you quote Nesson saying, "Often, the accused in copyright infringement cases do not understand the charges against them and cannot afford an attorney, so they pay the amount the RIAA demands without ever reaching court." Not only that, but they use these high numbers as a scare tactic, “The situation is absurd,” Tenenbaum said. “It was never about the money. It was about creating a scary situation to deter others." On the other hand, however, you point out that the music community has had to endure thousands of layoffs and billions of dollars in losses in just a few short years, primarily due to the exact kind of activity in which we found the defendant actively engaging. Given these facts, and that both sides seem to have legitimate arguments, do you think that this court case will result in any sort of a definite decision concerning the future of digital music downloading, and whether or not it is legal?

The Metamorphosis: A New Way to Consume Music

In these times, it would be impossible to examine the music industry in an intelligent way without looking extensively at how it is being affected by digitalization, an issue that I myself have brought up several times already within various blog postings. The way in which the music business works is shifting entirely to a different format and, whether we like it or not, the change is completely inevitable at this point. The good news is that finally, almost ten years after the Recording Industry Association of America (RIAA) brought a lawsuit against Napster for copyright infringement; it appears as though the major corporations are attempting to work with the transition rather than fighting against it. This does not mean, of course, that other forms of musical consumption will be disappearing anytime soon. In their article, "Pathways to Music Exploration in a Digital Age," Eszter Hargittai, associate professor in the department of communication studies at Northwestern University, and Steven Tepper, assistant professor in the department of sociology at Vanderbilt, make the point that "despite the increasing availability of digital media, people will be slow to take hold and cultural consumers will continue to rely on traditional mass media as important sources for the discovery of new music." The fact still remains, however, that the way in which we consume music is changing drastically, and I would like to explore how this may be occurring as we move further into the digital age.

First of all, one must consider the vast quantity of music that digitalization makes possible. Hargittai and Tepper write, "Digital storefronts like iTunes, Napster, Rhapsody, and MusicMatch offer upwards of three million tracks-the equivalent of about 300,000 CDs." Yet, even with this surplus of available songs, services such as these are not doing well. Paul Resnikoff, the founder and publisher of Digital Music News, reports in one of his posts, "The Power of Context: Can Music Stand On Its Own?" that "The iTunes Store has sold more than five billion downloads since 2003, but the real money for Apple has always been in hardware. Meanwhile, almost every other online store has been marginalized and punished with weak volume." The problem is, once again, illegal music downloading; not many people are actually using these service due to the ease in which they can acquire the same songs for free. Illegal or not, however, the general population is now consuming their music from sources in which there are a dizzying number of options to choose from, and in response bands must change the way in which they market themselves. For one thing, I believe that this new format could point in a positive direction as far as live shows and festivals are concerned. In an industry where record labels are becoming less important and there is such a massive amount of music readily available to choose from on the internet, it is increasingly necessary for a new band to "get their name out there" on their own since there is a greater chance that a corporation will not be able to do it for them. So, if bands want to stand out as acts that people want to download it would be in their best interest to perform whenever possible to create a fan-base.

One way that consumers may respond to the digitalization of music is by focusing more on the context through which the products are presented to them and less on the content of the songs themselves. A good example of what I mean by this is the way in which people pay for ringtones. As Resnikoff says, "A ringtone is worth money because it expresses who you are.... An MP3 is worth nothing because it's a static piece of content." In other words, the music industry needs to discover ways of presenting their products to online users in interesting ways that cause them to want to pay for their music as it helps them to form an identity. As more young people are spending vast amounts of time interacting with one another on the internet, people like Eric Wahlforss, co-founder of SoundCloud, a new music sharing and distributing platform, claim, "That social networks are turning into... modern radio channels... where young people tune into... the context that's in there. They are not just listening to the music isolated in itself." So, it becomes more about the presentation of the product that entices the buyer to spend their money. Although, so far, the digitalization of music has not even come close to repairing the enormous fiscal damage done by the ravaging of the CD's importance, it is interesting to see, first hand, a way that "new inventions in the way sounds, images and texts are produced and captured have changed the way that artists and writers work, leading to new styles... and forms... of expression" (Hargittai and Tepper). Not only has the new medium, through which musicians must work now, changed the way that they produce their material, it has affected the way in which listeners find, access, and relate to it as well.

Bear Market Blues: The Effect of an Economic Crisis on Music Festivals

As we are all aware, there is currently an economic crisis plaguing the United States as well as most of the world. Obviously, in times like this, many are forced to make certain financial sacrifices by spending what they have on necessities, and dismissing other, more pleasurable wants and desires. Unfortunately, this means that the time and money it takes to attend most music festivals is no longer affordable to numbers of potential patrons. While pondering how, and to what degree music festivals would be affected by the crisis, I decided to search through the blogosphere in an attempt to find some answers. What I found, however, was not a simple, cut and dry explanation. Using two excellent sources in particular, (both of which were published on October 24, 2008), I became aware of some very interesting, and very different theories as to what the outcome may be. The first post I looked at is entitled "Bands at New York's CMJ Music Festival Eye Economy" by Robert Gibbons, a reporter for the news service Reuters Group Limited. In his article, Gibbons focuses specifically on a particular festival put on in New York City by the College Music Journal and how the bands as well as the fans have been affected by the economy as far as attendance is concerned. Then, in addition to Gibbons' piece, I looked at an optimistic post by Dan Ruby, a writer for the Festival Preview website, entitled "Why Festivals Will Survive the Coming Recession." In it, Ruby discusses how, although some festival's sales fell during this last summer, the current economic difficulties may have done some good for the music community in the long run. Also, since both of these posts were written after the end of 2008's "festival season" (summertime), I compared both different outlooks on what's happening and what's to come with what was predicted by Steve Knopper, a writer for Rolling Stone, in his article "Gas Prices, Economy Shake Sales for Summer Tours" which was published in July, at the height of the time in which these events normally take place. After looking at the different aspects of each viewpoint I commented on both of these writer's posts, and have provided those comments below.

"Bands at New York's CMJ Music Festival Eye Economy"
Comment:
Thank you for forming an interesting and informative argument concerning the effects of our current economic struggle on the world of music festivals. I think that you make an excellent point on the matter pertaining to the "music industry's dramatic transformation." Given that artist's work is being so easily downloaded for free, whether illegally or not, they must make the majority of their profits some other way now, and it makes logical sense that ticket sales from live shows would be their next biggest means of earning. Plus, they always make quite a bit by selling merchandise at their events as well. The concern that arises from this new structure of the industry is, as you quote Matt McDonald, the vice president of CMJ Network as saying, "Are people still going to have the entertainment budget to go out, spend money for tickets and beer, merchandise from the band? That's certainly a big question." As the economy plummets, and the average citizen is forced to regulate their budget, will people still come out for shows and festivals like they did before? In July, Steve Knopper of Rolling Stone reported that "gas prices are eating away at the summer-concert business, with top festivals and tours taking unexpected box-office hits over the past few months." According to these findings it would appear as though festivals truly have gone into a slump along with the economy. On the other hand, however, many legitimate sources that I looked at concerning the subject reported that there were more music festivals in 2008 than ever before. So even though the numbers at some festivals are lower, they could be accounted for elsewhere. Looked at from this point of view it seems possible that the attendance of fans is not the biggest issue here, but rather the other problem that you bring up, the cost of traveling for the bands. As you say, "Higher costs, including gasoline, food, hotels and equipment, have cut into an already slim profit margin for up-and-coming acts." If this is the case, that crowds are spread so thin by the increased amount of festivals coupled with fans' lack of funds to afford the shows, that bands are not making enough of a profit to even play, then that could have a serious problem.

"Why Festivals Will Survive the Coming Recession"
Comment:
First, let me thank you for retaining such a positive attitude toward the future of music festivals. I have been researching what various bloggers think about the effects of the current economic crisis in relation to these events, and most of them have been very pessimistic. I must admit that I myself was rather skeptical when I started reading that 2008, in actuality, had more festivals than any year before given all the reports about how ticket sales have been down. As Steve Knopper of Rolling Stone reported all the way back in July, "In a year with more festivals than ever, the biggest have endured sales dips for the first time in years." Given the soaring gas prices, especially over Summer, it seems logical that festival organizers would want to put on more events so that they would be more easily accessible from further locations. As you say, "the dynamics in the music business motivated national promoters to aggressively move into new geographical markets with new festival brands." Also, you claim that "the next year or two will see retrenchment followed by continued growth in subsequent years." My question is whether or not you think that these new festivals which have sprung up will flourish as well, or will their respective audiences return to the larger, more well-established events once the recession has ended? In addition, do you believe that it might be possible for the festivals to be spread too thin? If there are so many that none make a large enough profit then a few years could be all that it takes to close a number of them down. In the end though, I completely agree with you that festivals will continue to thrive if for no other reason than the fact that they are relatively cheaper to attend than concerts, as well as the calling to "the continuing attraction of 'the festival lifestyle."