Recently, I have been having email conversations with an artist who I am a fan of: Sage Francis. I first emailed the artist several weeks ago merely to see if I could get a response at some point in the not too distant future. Instead, i got a response within the hour. We discussed mostly independent artists, but my last email to Sage seems to have rubbed him the wrong way, because I have yet to receive a response.
I told him that some artists are lacking in distribution to the point that downloads are the only way to acquire the music. Furthermore, I told Sage that the people downloading esoteric music will usually do so on an illegal P2P program if the rest of their music is legitimate and they do not already have an iTunes account. Often this will be because the user is not willing to take the time to sign up for an iTunes account or because if he did, iTunes controls the use of the music with DRM and its Terms of Service. iTunes is just an example of one of the providers of music, but all of these providers have Terms of Service and most have DRM protection on their music.
An illustration for the technologically literate: Picture yourself at the dawn of Napster. I know that in 1999, when Napster was going strong, I had an impressive CD collection. Most of these CDs were ripped to my computer so that I could listen to my music without switching disks (for those of you who are thinking “infringement,” which is arguable, please note that section 507(b) of the Copyright Act allows for a three-year statute of limitations for civil penalties which has passed). So, picture yourself with this impressive collection of music now on your computer. But your library is still incomplete, you have just heard the album COMBAT ROCK, by THE CLASH.
You want the album and you are willing to pay for a legal copy, but it is hard to find in stores. The copies that may be in stores present the problem of DRM, and they may even install a trojan on your computer. Such trojans became infamous after Sony BMG had to recall a music CD because its “RootKit” would be installed silently on any computer in which the CD was placed. The reality is that Sony BMG wanted such a RootKit on users’ computers because it could control use of the music, but this particular RootKit also installed a backdoor on computers which was easily accessible to hackers.
What do you do? You download it. Not because you want to steal the album, but because there is no option for the user who wants a DRM and trojan free copy of an album that’s use is not contractually outlined by the Terms of Service of iTunes. At the point that you have downloaded your first album, you likely have several other albums on your computer which have legitimately been ripped from CDs. Or maybe all of your music is legitimate, but this doesn’t mean you have the intent to steal from the artists.
There is no recourse for you if you download an album illegally and want to legitimize it. Instead, if you want to totally avoid any more liability, you will need to erase the illegal copy and purchase a legitimate copy. But if you are anything like me, you arrange the music in folders on your computer or create playlists. Erasing your newest album means that you must rearrange the music or recreate the playlists. There are only two options once you have illegally downloaded an album: erase and start over, or deal with having an illegal music collection.
I would propose a third option: a website that you can visit to legitimize illegally downloaded music. Imagine a site that would let you select songs on your computer and let you pay for a license to these songs after they have been downloaded. People who I have talked to about this idea have told me that they don’t think anyone who illegally downloads would then pay for music after the fact. But, currently this is an untapped market, and anyone who did legitimize their music would be someone who currently does not because legitimization is not now possible. Providing the option will certainly entice users, users that currently do not pay money to the music industry.
So, the music industry wins because they would be compensated for licenses which would not otherwise exist. The creators of the legitimization site win because they have a viable business model that wouldn’t be labor intensive. The user of the site wins because, assuming he hasn’t already received a nasty-gram from the music industry notifying him of an upcoming lawsuit, he avoids future liability based upon the no-longer illegal music.
For those readers who are still unconvinced, you are probably thinking that such a scenario as described above is unlikely, and that you have never had a problem finding music legitimately. But what about music which only exists in a form that is not “legitimate,” such as The Grey Album or Dark Night of the Soul? The website which I propose would allow you to legitimize The Grey Album after you have downloaded it, because there is no way to receive a legitimate copy unless you buy it second hand. Of course, the user is always taking a risk when he or she downloads music, but that risk is cut much shorter if the user can legitimize the music rather than having to wait for the statute of limitations to run.
If downloading isn’t going to stop anytime soon, why not provide such a website? People become invested in their music collections, whether or not the collection is completely legitimate. Asking these people not only to pay for music but also to follow the DRM or Terms of Service which control use of the music, is too much. There should still be the “freely alienable” option where space-shifting is still possible without limit. Anyone who is interested in this proposition should fee free to comment or contact me, I would love to see this come to fruition.