Until recently, every frustrated fan who turned to unauthorized sources to acquire and share music faced the prospect of a lawsuit from the Recording Industry Association of America (RIAA). The industry’s legal battle against individual file sharers spanned roughly five years, targeting more than 35,000 alleged file sharers in the U.S. However, at the end of that costly campaign, the challenge of plugging the P2P hole proved to be insurmountable, and critics largely viewed the litigation as ineffective. In the latest issue of the New York Law Journal, intellectual property expert Alan J. Hartnick offers one such negative assessment of the legal campaign, stating: “The lawsuits had little effect, as unlawful downloading continues.” Also lost down the P2P hole was the reputation of the industry, now widely seen as one that sues its own customers and is out of step with current technology. “The record companies have created this situation themselves," said Simon Wright, CEO of Virgin Entertainment Group in a 2007 Rolling Stone article. More recently, a Boston Globe editorial echoed the popular sentiment that the industry missed their chance to harness the internet for music distribution with Napster:
Sharing music without permission is a violation of copyright, as the industry contends, but digital technology makes downloading music off the Internet inevitable. The industry missed an opportunity to turn informal file-sharing into a profit center when it failed to buy Napster, the first of the popular downloading services, when it had a chance in 2000.
But for all of Napster’s influence, it’s easy to forget that the demographics of music buyers actually started to shift before Napster’s launch. An eerily prescient article that ran in Billboard in April of 1999 reported that the record industry had seen a puzzling drop in music-buying by young listeners during the previous year. The biggest decrease was noted among the college-aged set (20- to 24-year-olds), who bought only about half as many recordings as their older brothers and sisters did in the decade prior. Hillary Rosen, head of the RIAA at the time, described the changes they had observed in the market:
Rosen says that the industry is facing an aging record-buying audience and must further stimulate younger listeners to own prerecorded music. “All of the surveys show that across the demographic, music is incredibly important,” she says. “What we're finding is that the disconnect occurs between the importance of music in people's lives and their need to own it. We clearly have a task as an industry to re-energize the desire to own music among young people.”
That the labels would eventually attempt to re-energize young people’s desire to own music through lawsuits was predicted and warned against nearly three years before the campaign began. In May of 2000, Steve Sutherland, editor of nme.com and moderator at the NetSounds conference, predicted that high profile legal cases against individuals were inevitable, but foolhardy: "Let them sue an individual, I'm sure they will. It will backfire though. There will be such an outcry if an individual were prosecuted...."
The industry met the outcries from music-sharing fans by arguing the morality of its case: Taking CDs from a record store was wrong, why should taking digital music online be any different? However, when artists spoke on the industry’s behalf, they didn’t always present a unified message that sharing music in any context without permission was wrong. While Metallica became the iconic anti-file-sharing band, there were many other artists who weren’t so quick to decry the networks and the openness of the MP3 format.
As early as January 19, 1999, musical icons like David Bowie were singing the praises of the MP3 and the potential for fans to remix his music easily:
A few days ago a kid downloaded one of my songs from my Web site. He re-recorded it at home, changing the bits that he didn't like and then put up his version on his own site. The new version is written his way, with changes to the melodies and some of the lyrics and it is available as an MP3. It is unbelievable. If he can do that, imagine what can happen in the future.
Of course, many music downloaders were more interested in simply acquiring music for free than they were remixing and sharing what might be considered transformative creations with the world. But even the “freeloaders” were not always shunned by the artists whose work was being shared. The rock band Wilco famously was one of the first acts to benefit tremendously from the promotional power of peer-to-peer. After being dropped by their label in 2001, the band decided to release their album, “Yankee Hotel Foxtrot,” for free online. The resulting swarm of listening and sharing by fans ultimately convinced the label to offer the CD version of the album for sale in 2002. And while the band’s previous recording, “Summerteeth” had sold just 20,000 copies, “Yankee Hotel Foxtrot” quickly surpassed the 500,000 mark. Shortly after, Jeff Tweedy, the lead singer of Wilco, began speaking out in support of file-sharing, expressing little patience for the Metallicas of the world: In a 2005 New York Times article, he suggested that downloading was an act of rightful ''civil disobedience” and was quoted as saying, ''To me, the only people who are complaining are people who are so rich they never deserve to be paid again.''
Artists’ varied views on the impact of file sharing were also documented in Pew Internet’s “Artists, Musicians and the Internet” report from 2004. While most artists we interviewed believed that unauthorized online file sharing was wrong, few felt the industry was in peril because of the networks. When asked about the threat peer-to-peer file-sharing posed to creative industries at the time, two-thirds of artists said the activity posed only a minor threat or no threat at all to them. Further, there were some major divisions among them about what constituted appropriate copying and sharing of digital files. Yet, among those who were both successful and struggling, the artists and musicians we surveyed were more likely to say that the internet had made it possible for them to make more money from their art than they were to say it had made it harder to protect their work from piracy or unlawful use.
And now, while it’s hard to argue at present that the industry as a whole didn’t suffer some serious losses due to Napster and its progeny, it’s also hard to ignore those artists who have benefited from the shift in distribution and promotion that has emerged post-Napster. Megaband Radiohead launched one of the bolder experiments to date, self-releasing its “In Rainbows” album on October 10, 2007 for download from their website under a “pay what you can” model. So far, the album has sold over three million digital and physical copies—more than each of their previous two albums. Similarly, the band, Nine Inch Nails, self-released their, “Ghosts I-IV” album in March of 2008 in a variety of formats online. In addition to free files which the artists directly uploaded to file-sharing networks themselves, the band offered a $5 digital version and premium packages (including various limited-edition physical merchandise) that generated $1.6 million in just over a week’s time. And although the entire album was available for free through a Creative Commons license, it eventually became the bestselling MP3 album at Amazon for all of 2008.