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By Eric de Fontenay, Editor
Mi2N's B2N, Business Net News
July 9, 2003

Who could have predicted it? Wasn't it common knowledge that file sharing would recede to the farthest edges of the Net in reaction to the RIAA's legal threats. The time-tested rule of extreme punishment as the best form of crime prevention is the cornerstone of more totalitarian regimes such as Saudi Arabia as well as the primary justification for capital punishment in the US. Seems someone forgot to explain the rules to file sharers though as p2p systems reported a surge in new users and volumes of traded files. And I'm not talking about the newer 'anonymous' systems either, but the old-guard 'monitorable' Kazaa & Morpheus.

There are only two possible explanations for this blatant inconsistency. The first is that file sharers are irrational decision makers, willing to face the risk of costly litigation rather than give up or miss out on the chance for free music. While such a degenerative effect of file sharing might appeal to industry PR types ("Warning: File sharing can make you dumb!"), a more plausible alternative explanation is that file sharers are acting in the interest of the file sharing community/movement as a whole versus as isolated & disconnected individuals. In other words, existing/prospective file sharers are tacitly colluding their actions to ensure the survival and long term prosperity of the whole.

This hypothesis assumes a few things: (i) that file sharers are conscience that the actual risk of a lawsuit is small in the sea of file sharers; (ii) that the RIAA will focus/restrict their efforts on the worst offenders; (iii) that the RIAA is not targeting downloaders which constitute the major portion of the file sharing community.

If these assumptions reveal themselves to be accurate, the most appropriate action for file sharers would be to add to their ranks and crank up the sharing. This is because that set of assumptions provides a major loophole in the RIAA's strategy that actually reduces the average file sharer's risk to nearly zero. The more members join the community and the more trading each engages in, the perceived risk is reduced further, leaving the industry with a grave credibility problem. It's akin to everyone on a 55 MPH highway going 65 MPH: they are all breaking the law, but by doing it collectively, they minimize the risk any actual enforcement. Law enforcemet eventually accepts that when the traffic as a whole goes at 65 MPH, it becomes the defacto speed limit.

The problem with the alternative - the RIAA straying from that set of assumptions - are the political ramifications that would likely result. For if the RIAA were to start suing downloaders or randomly suing individuals irrespective of the volume of files they trade, the true risk to the average trader would increase significantly as well as their incentive to exert their extensive political voice. That's why p2p companies recently formed a lobby group to help direct that political voice to the appropriate channels of government. Just imagine on the one hand say 25,000 youngsters suddenly left destitute due to copyright infringement lawsuits, and on the other, the ensuing political uproar from parents, extended family, friends, a sympathetic file sharing community led by their new lobby group, the media,... all the way up to the halls of Congress. And 25,000 is barely a dimple in the global file sharing community, leaving you with better odds of winning the lottery than getting sued.

It's a scary thought: an ever-growing community of like-minded individuals sharing a collective conscienceness - call it a hive-mind - sweeping all opposition aside in its pursuit of a single goal: to trade more & more music.


July 10, 2003


I admire your work but must disagree on this piece.

You ask "Who could have predicted it?" [that direct consumer litigation would INCREASE file sharing]. Most anyone.

You accurately describe this consumer treatment "as a time-tested rule of extreme punishment ... the cornerstone of more totalitarian regimes."

Totalitarian: Of, relating to, being, or imposing a form of government in which the political authority exercises absolute and centralized control over all aspects of life, the individual is subordinated to the state, and opposing political and cultural expression is suppressed.

Here's an industry that demands total control over its product and how its used, denies civil liberties to consumers, cloaks itself in its "moral imperative", threatens all businesses that oppose it, is convicted of price fixing and cheating artists, blatantly lies, and uses its massive power to pass one-sided legislation like the DMCA (all documented at the DiaRIAA.com). In fact RIAA is better than a government. No one can vote RIAA off the island. In this drama it is RIAA which pays the part of the relentless totalitarian Borg.

Do you truly expect Americans to drop the soap and submit to such an organization?

We forget recent history all too quickly. The explosive rise of Napster and P2P was a form of civil unrest by consumers against an oppressive industry that had abused its customers (such as charging MORE for CD's that cost LESS to produce) and refused to adapt to a digital realm that its customers already embraced.

This isn't about college kids, foreign CD pirates, or some fringe group. P2P users are not some irrational mob or collusive hive mind. There are 60 million US P2P users. It's my daughter and her grandfather. This is the American public.

The market rules in our economy. And this market, the American public, was rebelling against the Borgian RIAA to fight for fairness, choice, and freedom. A rational reaction.

In response RIAA proclaimed resistance was futile and brutally tried to maintain the status quo. It is RIAA that is acting irrationally, even silly at times, ignoring the public demands of the very market it needs to survive.

Over the past few years RIAA's behavior and the industry's lame online efforts have only continued to fuel public outrage and P2P popularity. Now RIAA's direct lawsuits scream into this same raw nerve. It's not difficult to predict that the public response will be the same as it's been the past 5 years. To vote with their time, software, bandwidth, and MP3 players on the side of P2P until the industry adapts. My money's on the Federation rebels.

Copyright 2003, Marc Freedman



Copyright 2003-4 Marc Freedman. All Rights Reserved.

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