The RIAA versus us: a file-sharing standoff

After reading through hundreds of comments to last week's digital media ethics poll, I've come to the realization that my readers are much more rational and reasonable than the entertainment industry. Overall, I see plenty of common sense in those responses, including a clear respect for property rights and an insistence on a reasonable approach to personal use, one that's consistent with centuries of historical precedent.

Earlier this week, I looked at the enormous disconnect between what consumers see as their personal right to use purchased digital media and what the industry thinks those rights should be. To see another gaping chasm in attitudes, look at these answers from the same poll. More than 8,000 votes were cast on each of these two questions, which address the question of music sharing:

Is it OK to borrow a CD from a friend and rip it to your hard drive?

• Yes: 34%
• Sometimes/Depends: 13%
• No: 53%

Is it proper to buy a CD and make a copy for a friend?

• Yes: 27%
• Sometimes/Depends: 8%
• No: 65%

I find those results remarkable. At a bare minimum, 27% of you think that friends should feel free to copy commercial music CDs. The music industry says that's outright theft. No exceptions:

If you make unauthorized copies of copyrighted music recordings, you're stealing. You're breaking the law, and you could be held legally liable for thousands of dollars in damages. ... Criminal penalties can run up to 5 years in prison and/or $250,000 in fines, even if you didn't do it for monetary or financial or commercial gain.

So, are music consumers just greedy or ethically challenged? I don't think so. A lot of the confusion is over the expanding meaning of words like "personal" and "friend," which meant something different in the 1970s when the entertainment industry as we know it today rose into being. Sharing music or movies with friends in the 1970s meant sharing a physical space - a dorm room, a living room, a concert hall, a movie theater. Today, people who've never met manage to make casual acquaintances and build friendships; their shared presence includes online communities and more private spaces that are strikingly similar to their physical counterparts. The desire to share remains the same; the tools to share are easier and not limited by physical objects (records and CDs) or even physical spaces.

For music fans, then and now, sharing has been about the music. As one commenter perceptively noted, if no one hears, no one buys:

I think it's okay to share music among friends and family. I would only share out if I thought that the friend was unlikely to buy it but would enjoy the artist or should be introduced to the artist. I wouldn't rip a borrowed disk that I would have bought. I have bought quite a few disks because I was introduced by friends.

The comments on the poll also emphasized the importance of "mix" CDs among music fans. This commenter argues that reasonable sharing benefits everyone, including the artists and the industry:

Personally I feel it's fine to share media among friends and family because it's a form of discovery and promotion. I've had quite a few mix CDs made for me which is obviously "illegal" yet I've discovered some great bands that way, bands that I've in turn bought their next albums, gone to their concerts or in turn promoted them to other friends. I've also discovered that some much hyped bands were horrible and I would have wasted $10 on a CD I'd never listen to, which is what I'm sure the RIAA is counting on as well.

I struggled to reconcile the differences in the response to two questions covering apparently similar activities. Nearly half of the respondents (47%) think it's always or sometimes OK to borrow a friend's CD and rip it; a smaller group (35%) think it's always or sometimes OK to copy a CD for a friend.

So what's the distinction? The comments offer some clues:

• It's OK if you're replacing a damaged copy that you already paid for once:

In most of the music copying questions, "it depends" on whether or not I've already bought a previous copy (and subsequently lost or destroyed it).

This comment takes the same argument even farther:

I think you should be able to copy a CD from a friend if you've purchased a copy of that same material previously, such as a cassette tape, album, or even 8 track.

• It's OK if the original CD is no longer available:

Is it OK to borrow a CD from a friend and rip it to your hard drive? While I would normally consider this unacceptable, I might make an exception for a CD which was out-of-print and unavailable used at a reasonable price, or for a CD which I own if my copy has been damaged or proven to be defective. For example, I have at least two or three CDs that played OK when I purchased them, but at least some tracks no longer play correctly and the discs have long been out of print. If I could borrow a CD to make copies of the tracks that no longer play, I would probably do it.

• It's OK because the price is too high and the industry is ripping its customers off:

My issues with DRM and digital media ethics have to do with the record companies, not the artists. I have yet to see a convincing argument that the artificially high prices charged by record companies for CDs does anything for the music business in general or the average artist. I rarely buy new CDs, because of the price. I rarely download from torrents, etc., because of the file quality and legal issues. But when faced with the opportunity to purchase music of high quality at a reasonable price -- say $5 - $8 for a complete CD -- I will spend a good amount of money. In any given year, I will spend $300 to $500 on affordable music. That is money that the music companies will never see. I imagine that there are thousands of listeners out there like me.

Some of the arguments in those comments are pure rationalization, of course, a way to provide moral cover for the act of getting something for nothing. But that's the minority, in my opinion. Most casual sharing between friends is about the desire to share experiences, the same "Hey, you have to hear this" impulse that a previous generation felt in pre-digital days.

I'm highly skeptical that the mainstream entertainment industry will ever find a way to reach common ground with its customers on this issue. The RIAA, after all, is run by lobbyists and lawyers. For them, it's not about the music, it's about the product. They're highly motivated to create a rigid definition without exceptions, one that will stand up in court even if it's an abject failure in the court of public opinion. As their customers have already discovered, new technology makes it possible to share tunes in all sorts of ways. Ratcheting down the rhetoric and recognizing that some sharing and trading among music-loving friends is reasonable would be good for artists, labels, and consumers alike. Unfortunately, crafting such a policy would require that the industry trust its customers and be willing to accept a certain amount of abuse as inevitable.

The chances that that will happen are, sadly, about the same as the chances that the Beatles will reunite.

Up next: DRM and other stupid business models.