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Big Music's Climate of Terror and the Media Response

By Jon Newton
May 12, 2004 6:00 AM PT

The CRIA, Canada's version of the RIAA, recently suffered an ignominious and embarrassing defeat when it failed to convince a Canadian federal court that online file-sharing is illegal and is "devastating" the multibillion-dollar music industry.

Big Music's Climate of Terror and the Media Response

Having fallen flat on its face, the Canadian Recording Industry Association now is trying to pull itself up by its bootlaces by claiming "a significant majority of Canadians disagreed with the recent Federal Court decision which suggested that it is not illegal to upload music files on the Internet." The emphasis is mine.

However, when he ruled against the CRIA, Justice Konrad von Finckenstein didn't "suggest" anything. He stated, clearly and unequivocally, that putting digital music files into a computer directory that might be shared remotely by someone else isn't copyright infringement under Canadian law.

Considering that, unlike people in the United States, Canadians can share music freely online without fear of being savaged by the Big Five record labels, the CRIA finding is hard to fathom, even bearing in mind that it comes from a study commissioned by the CRIA itself.

Stacking the Reports

It's particularly puzzling stacked against another report from America's Pew Internet & American Life Project, which found that the number of people who share music through P2P networks actually has increased from an estimated 18 million to 23 million since its November-December 2003 survey.

It becomes even more confusing when you take into account a different Pew report that states the following:

In terms of their careers, more artists say free music downloading online has helped them than hurt them. Fully 83% of those in the survey say they provide free samples or previews of their music online. And strong pluralities say free downloading has a payoff for them. For instance, 35% of them say free downloading has helped their careers and only 5% say it has hurt.

Some 30% say free downloading has helped increase attendance at their concerts, 21% say it has helped them sell CDs or other merchandise; and 19% say it has helped them gain radio playing time for their music. Only fractions of them cite any negative impact of downloading on those aspects of their work.

What Do You Believe?

"Our focus is on the world's most popular 'download' communities, file-sharing networks," said Eric Garland of Big Champagne, a company that tracks and reports on P2P downloads in an anonymous fashion. "These are the download 'sites' (actually networks) first made famous by Napster and now including clients like LimeWire, BearShare, Kazaa, Morpheus and hundreds of others."

While the music industry is reporting that its sue-'em-all campaign is dramatically reducing the number of file sharers, and while Apple is boasting people downloaded 50 million files from its iTunes Music Store in its first year, Big Champagne is reporting that, at a conservative estimate, 4 million people are online at any given moment happily swapping 1 billion files every month, at the very least.

"We want to be the 'just the facts, ma'am' company," said Garland. "It's an increasingly critical component. You can't begin to sort out the business and address the problems until you understand the state of things. Behind closed doors, when the focus is on strategy, it's imperative that you have good data, even if it's not what you want to hear. We're often told by pros from all sides of the music industry that we deliver a lot of bad news. But we take it as a compliment, because that means we're telling the whole story."

Wayne Rosso, Blubster's CEO and the man who used to run Grokster, makes no secret of it. "I always look to Big Champagne's figures," he said, as do significant numbers of people on the other side of the fence -- those who run the Big Five record labels.

So, how reliable are the reports and surveys, especially if their focus is online file sharing?

Whether the reports appear to be for or against a particular issue, if there's an apparent slant in a given direction, it's almost certainly down to the media reporting it, said Garland, guaranteeing there's no bias on the part of the researchers and collators who put the reports together.

Where Does That Leave Us?

Despite the fact that the odds of being sued by the RIAA for sharing music online are similar to those of winning the lottery, Big Music has succeeded admirably in creating an aura of distinct terror around uploading, downloading and sharing digital music files. And it's this aura that means you can't believe surveys or reports centering on the way music is distributed online -- unless they're based on straight data analysis derived from data taken directly from a physical source.

Surveyors investigating, for example, alcohol abuse or recreational drugs expect the people they're surveying to be somewhat less than forthright. Now add P2P file-swapping to the list of dodgy subjects.

"It's very difficult to get reliable information on topics like music file-sharing," Garland told me. "And it's particularly challenging in a climate of aggressive litigation, proposed legislation and what the RIAA calls 'education.' It's difficult to extract good data from respondents on these things."

Every time we turn on the TV or open a newspaper, we're reading about ISPs being compelled to identify their clients in connection with copyright infringement prosecutions. "It doesn't take a great stretch of the imagination to think: 'Here I am in my home, and these researchers have called me on my home phone, so they know who I am and where I live,'" Garland continued.

"And even assuming researchers' best efforts to maintain my privacy, and given that they have no interest in identifying me, nonetheless, I may well imagine they could be compelled -- just like an ISP -- to identify me in conjunction with a civil litigation or, real horror of horrors, a criminal one," he said.

A Climate of Terror

The recording industry has worked hard to create this climate of terror, and it's the industry's explicit agenda to want people to be dissuaded from sharing files out of fear of the consequences that will result if they're discovered.

"But respondents are in no danger from researchers," said Garland. "The critical difference between an ISP and a market research firm is: We researchers take great care to make sure we're not in possession of anything that could identify someone. So when a market researcher calls you when you're in the middle of dinner, that typically is the result of random digit dialing, which actually ensures that although this company has phoned you at home, they're not actually in possession of your home number or of other identifying marks."

However, even given that someone answering questions for a market researcher isn't afraid of suddenly ending up on the RIAA's sue-'em-all list, the majority will still be less than truthful in their responses, said Garland. That's because, in addition to creating the climate of fear, the music industry also has given file-sharing an aspect of being somehow unwholesome -- of being tainted.

Predictable Media Response

"It's not unlike getting someone to disclose information about behaviors that are considered offensive or about recreational drug abuse," he stated. "People are uncomfortable discussing these kinds of things, and they're just as uncomfortable talking about file-sharing with a stranger."

There's no such thing as bad PR for file-sharing, and the music industry knows this, Garland added. But against that, he also points out that every time it comes up, it simply introduces the concept to more and more casual users.

In the meantime, the surveys are "of tremendous importance to the handful of people who can really be unduly influenced by the information in the surveys -- I'm talking about legislators and executives in the industry."

Nonetheless, everyone -- legislators included -- should "employ a healthy dose of skepticism to any reporting of any kind -- the media included. Satisfy yourself with the methodology and the agenda of whoever's reporting the information," said Garland. "We're all pressed for time, but it never hurts to have that little voice of doubt in the back of your mind."

Given that respondents -- for file-sharing, at least -- seem to be so unreliable, what's the point of doing a survey in the first place? Could it be that the companies that commission them are well aware that although, at the end of the day, the studies have no real value, they'll generate very predictable media responses and that's what they're really after?


Jon Newton, a TechNewsWorld columnist, founded and runs p2pnet.net, a daily peer-to-peer and digital media news site focused on issues surrounding file-sharing, the entertainment industry and distributed computing. p2pnet is based in Canada where sharing music online is legal.


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