News flash: Your mom may not be the ultimate authority on the virtues of sharing now that the Supreme Court has taken up the issue. Last week, the court heard arguments in the case of MGM v. Grokster, or the entertainment industry's latest attempt to put the file-sharing genie back into the bottle. Take your pick. We'll probably have to wait until summer for a ruling. Look for the loser in this round to take the issue to Congress next. In the meantime, there's plenty to discuss.
Talking about file sharing these days is somewhat like skipping blindfolded through a minefield. Now that the Recording Industry Association of America (RIAA) has sued something like 3,000 people—settling most cases for a fine and a promise not to engage in file-sharing again—one reasonably hesitates to publicly even hint that one might have engaged in the crime of (file) sharing, lest the RIAA come a-knocking. Sure, they can't catch everybody, but they might catch you. Right? So let's clarify a few things right now. Napster? Grokster? Morpheus? Kazaa? Gnutella? Nope, never used ‘em. Never even heard of ‘em until just now. OK?
Even if you've never heard of them, the concept is easy to understand, because file-sharing—in a sense—was happening even in the days before Napster and the rest (for those of us who remember that far back). Ever made a "mix tape" for a friend? Technically, you've broken the law. Ever made burned a CD of your favorite songs from various purchased CDs, or made a "mix CD" for a friend? Technically, you've broken the law. And if you've used the hack that allows iPod-to-iPod sharing…well, you get the idea.
The case itself took five years to wind its way to the Supreme Court, with lower courts finding in favor of the file-sharing companies, saying that the software should be compared with a VCR, in that it has enough legal uses to protect file-swapping companies. Attorneys for Grokster are citing a "Sony precedent," from a 1984 Supreme Court case involving the Sony Betamax video recorder—which, by the way, former MPPA president Jack Valenti declared would suck the life out of the movie industry.
Of course, Valenti's dire prediction didn't come true, and in 1984 the courts found that service/device providers can't be held responsible for the acts of users if there's the capability of substantial legal use, like recording a television show for later viewing. Maybe it's me, but that sounds vaguely like one of the ways people use file-sharing programs like BitTorrent every day. Users, for example, download television shows for later viewing.
Is this just a case of an industry not getting that, when it comes to technology, you can't "unring" a bell, and that maybe a new business model is in order? Fast-forward from Napster's debut to now. More than 22 million Americans own iPods or other MP3 players. Apple's iTunes music store sold 1 million songs in its first week, and has sold more than 300 million songs since its inception. We're talking legal download, folks, at about 99 cents per song. And it's not just iTunes. Napster resurfaced as an online music purveyor, and has sold over 5 million songs since its rebirth. Clearly there's money to be made by in a down-load-for-pay business structure. According to a survey from the folks at the Pew Internet & American Life project suggests that more people are using paid services like iTunes, and peer-to-peer network usage has slipped (or at least people are less willing to report it). The numbers suggest that significant numbers of people are willing to pay to download music, probably because pay services can ensure the quality and availability of content in a way that file-sharing networks just can't.
So why haven't the movie and television industries figured it out yet? The technology for downloading video files has existed for some time now. People are using BitTorrent and similar clients to download television shows to their laptops and desktops for later viewing. The success of Tivo, and the spread of digital video recorders (DRVs) shows a consumer willingness to pay for the ability to record television shows to view at their leisure. How hard would it be for, say, television studios to start making selected shows available online, for TV fans to download for a price?
It would mean a serious shift in television's business model, affecting everything from ratings to advertising, but the possibilities are worth considering. While real-time ratings for shows also available online might drop, the number of times a show is downloaded could be counted as evidence of its popularity. The industry could also get an unprecedented about of demographic information about its customers. Television fans may even be willing to "subscribe" for the right to download entire seasons of their favorite shows. Commercial free downloads might mean less revenue from advertisers, but could also be an incentive for users to pay for downloads or subscriptions to their favorite shows; alternately, advertisers could pay to place a commercial at the beginning of a video file that is otherwise commercial-free.
There's a way to do it, and there's a model that will work. Finding it just takes more imagination than it does to shut down file-sharing networks that are simply going to sprout back up the minute someone inevitably figures out a way around the latest roadblock. Rest assured, someone will. Attempts to quash technology that threatens industry control of entertainment, up to and including dragging Congress into the act, is a losing battle, and the legal means to go after illegal downloaders already exists (as RIAA has shown). Why not just find a way to make the technology, and those who want to use it, pay?
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