MP3 and Me

Lately, however, I’ve succumbed to temptation. My descent into the world of downloading MP3s began innocently enough. Last spring, I saw the talented young singer Norah Jones perform on television. Bewitched by the fetching and honey-voiced Miss Jones, I bought her album, and also saw her play a concert here in June. (She sounds as good live as she does on the CD.) Jones ended her set with a heartbreaking encore rendition of “The Tennessee Waltz.” So a few days later I visited her website and found an MP3 file, available for free, of Jones’s performance of “Tennessee Waltz” recorded at an April concert in Chicago. I downloaded it, and got the free iTunes program for my Mac so I could play the song on my computer.

I felt no guilt about this–I’d bought the woman’s album and paid to see her perform live, and she was offering the song on her website for free. But then I started to wonder what this MP3 file-sharing stuff was all about, so I downloaded LimeWire, one of the many successors (along with Kazaa and Morpheus) to Napster. Unlike Napster, these new “peer-to-peer” file-sharing programs are decentralized or operate overseas, making them less susceptible to legal challenges from the recording industry (for now, anyway).

My online music experience so far has been a mixed bag. I’ve acquired about 30 files via LimeWire from something called the Gnutella Network–everything from Mozart to the Beatles, Etta James to George Strait. The MP3 technology itself is unquestionably wonderful, and peer-to-peer file-sharing does offer some real perks: For example, I was able to get the few Stevie Wonder songs I wanted without having to drop $40 on a two-disc set of “greatest hits.”

But there are also drawbacks. The availability of songs is dependent upon whether other people simultaneously on the network are sharing the types of music I want. Also, since I haven’t yet bothered to get a broadband line, it can take a good 25 minutes to download a three-minute song over my slow-as-molasses modem connection. But even more nagging than these practical obstacles is my old-fogy notion that if I’m going to acquire someone’s music, I should be willing to pay them for it. If I want to download “My Cherie Amour,” Stevie Wonder should get a cut of whatever price a true market–not a market massively distorted by illegal sharing of copyrighted material–determines the song is worth. (Jonathan Last disagrees with me about the morality of market distortions here.)

FIGURING OUT the rights and wrongs of music file-sharing isn’t easy. I’ve spent the last few weeks trying to decipher things like the Digital Millennium Copyright Act of 1998, the international Berne Convention for the Protection of Literary and Artistic Works, and the concept of “fair use” in copyright law. I hesitate to opine on all this for two reasons: one, I’m not a lawyer (praise God); and two, whatever I write is likely to be ground into hamburger by sharp lawyer-bloggers like Glenn Reynolds.

But my bosses at The Weekly Standard don’t pay me the big bucks to equivocate, so let me try to draw some tentative conclusions. Frankly, I find something to dislike about everyone involved in the debate over online music. Certainly, it is deeply amusing to see ads from the Recording Industry Association of America (RIAA) featuring “artists” like Britney Spears braying about protecting the value of their “intellectual property.” I hold no brief for the record companies, either, most of whom produce an incredible amount of pure garbage with practically no redeeming social value. What’s worse, the RIAA is now seeking powers to thwart file-sharing that are charitably described as distasteful. As Katherine Mangu-Ward noted a few weeks ago, the record companies are pushing legislation in Congress that would limit their liability when using software to flood peer-to-peer networks with dummy files, search public files on consumers’ computers for illegally copied music, and block users from downloading files through “interdiction,” which closes off a user’s hard drive from others on the network. Finally, there’s ample evidence that the recording industry has engaged in massive price-fixing over the years.

So it’s tough to sympathize with pampered artists and greedy record companies in this fight. And yet, based on my layman’s reading of the law, it’s still clear to me that those who download and share copyrighted music online are doing something illegal. Unlike the old practice of copying analog tapes of music for friends (to which it is often compared), MP3 file-sharing among millions of people on peer-to-peer networks stretches the already nebulous concept of “fair use” to the point of absurdity. And while there’s no direct evidence that file-sharing hurts CD sales, sales of pre-recorded CDs dropped 10 percent in 2001, and another 7 percent in the first half of 2002. That file-sharing diminishes the value of a certain type of intellectual property also seems to be at least a plausible argument.

In attempting to defend the illegal behavior of those who believe they never should have to pay for anything if it can be digitally transmitted and copied, some tech geeks have lauded file-sharing networks as a praiseworthy black market that’s arisen to overcome the corrupt practices of the record companies. In the case of my Stevie Wonder example, for instance, they would argue that my acquisition of illegal copies of these songs via LimeWire is justified by the record companies’ stubborn refusal to embrace technology that would allow me to acquire those songs “a la carte.” Here, as always, two wrongs don’t make a right.

But the specific “a la carte” argument has some merit: The desire of listeners to choose individual songs rather than entire albums is understandable, and nearly universal, since most albums have only one or two good songs and are padded with worthless dross. But even here, file-sharing has an unintended consequence: As Terry Teachout predicts, the elevation of such “choice” is certain to lead to the eventual demise of the “album” as a unified artistic concept–you will no longer see such creations as Sinatra’s “Only the Lonely” or the Beatles’ “Sgt. Pepper’s Lonely Hearts Club Band.” (Teachout is quick to point out that this is not intrinsically a bad thing.)

My primary concern is whether file-sharing technology has permanently warped the moral sense of music consumers who’ve come of age using it, in two ways: by convincing them that acquiring illegal copies of music is the normal way to build one’s music collection, and that “intellectual property” is merely a fig leaf used by Evil Record Companies to cover up their own greed. Unfortunately, as we try to determine how to protect the viability of the concept of intellectual property in the digital age, the issue is being seen primarily through the prism of the music industry, where the side defending intellectual property happens to be a bunch of slimeballs.

The great unanswered question is whether the incredible popularity of sharing MP3s is due mostly to music lovers’ desire for more choice in compiling their collections, or whether they simply prefer (rationally, if immorally and illegally) not to pay for something they can get just as easily for free. Based on my own limited experience with file-sharing, and my (perhaps naive) belief that most people want to do the right thing, I think the former is the case. That’s why I hope the record companies will make a sincere effort to provide viable subscription sites, and that music consumers will give them a chance.

According to a recent article in the New York Times, it looks like this might finally be happening now with the growth of pay sites such as EMusic. For myself, I can only say that if the record companies allow me to subscribe monthly at a reasonable rate and download my half-dozen favorite Stevie Wonder songs, I wouldn’t miss LimeWire at all. My conscience would certainly rest easier knowing that Stevie was getting a piece of the action.

Lee Bockhorn is associate editor at The Weekly Standard.