The “Stick” Approach

In 2003, a 12-year-old girl and a 71-year-old grandfather were among the 261 people served with lawsuits by the Recording Industry Association of America (RIAA).[i] They were presented with the option to either settle for $2000 or to face charges up to $150,000 per illegally downloaded song.[ii] These cases were ridiculed by the news media, while the RIAA defended its actions, stating, “Nobody likes playing the heavy and having to resort to litigation. But when your product is being regularly stolen, there comes a time when you have to take appropriate action.”[iii]

The RIAA’s 2003 campaign lasted five years and implicated nearly 30,000 individuals. Yet, despite such widespread litigation, music piracy was not curbed. Instead, studies demonstrate that Peer-to-Peer (P2P) activity increased over the lifespan of the RIAA lawsuits. Between 2003 and 2005, the traffic on P2P networks doubled.[iv] Moreover, P2P steadily increased in popularity through 2008, increasing in amount of illegally downloaded content and the number of simultaneous P2P users, at one point even reaching 10 million simultaneous users.[v]

The RIAA then turned its efforts towards lobbying Congress to pass legislation to curb piracy.[vi] The Stop Online Piracy Act (SOPA) was introduced in the House of Representatives, and contained provisions that would allow Internet Service Providers (ISPs) to independently block websites from being accessed so long as there is a “reasonable belief” that the websites are “dedicated to the theft of US property.”[vii] SOPA would also block search engines from providing links to websites that host illegally copied material, and force ad networks and payment providers to stop working with such websites.[viii] Given that the Digital Millennium Copyright Act (DMCA) already deals with online piracy by requiring websites to take down infringing content when the copyright holders complain, the SOPA provisions are unnecessarily broad and harsh.[ix] SOPA would create a heavily censored Internet, and potentially cause websites like YouTube to be shutdown.[x]

SOPA was ultimately withdrawn from the House after blackouts and demonstrations organized by anti-SOPA websites such as Google, Wikipedia and Facebook managed to rally mass opposition to the bill.[xi]

Now, the RIAA is now working with ISPs to carry out the Copyright Alert System (CAS), which allows copyright holders to monitor P2P networks and to share the Internet Protocol (IP) address with ISPs.[xii] The ISPs then issue a series of 6 escalating warnings to the user, before taking “mitigation measures.”[xiii] Examples of such measures range from forcing the user to watch an instructional video about copyright, to capping the user’s Internet speeds, to completely suspending that user’s Internet for a set period of time.[xiv] While the effects of CAS have yet to be seen, the RIAA’s previous attempts at threatening users and websites have repeatedly failed over the past 10 years to curb music piracy. Hence, we should be very skeptical of CAS.

The Carrot Approach

In stark contrast to the RIAA’s “stick” approach, certain content providers have found success in using a “carrot” approach to curb piracy. Spotify, a Swedish born product, is a music-streaming service that has been boasted by its creators as an “alternative to music piracy.”[xv] Spotify allows users to stream millions of popular music tracks off the internet for free, and generates revenue by playing occasional advertisements. The interface is simple and clean, in contrast to the cluttered and virus-ridden websites that allow users to pirate music. Thus, Spotify provides users with the “carrot” of convenient, free music access in the battle against online piracy.
Spotify was launched in 2008 and within 2 years hit 10 million users in Europe.[xvi] During that same time frame, Sweden witnessed a drop in piracy rates for music by 25%, leading many to speculate the positive effects of music streaming on piracy. [xvii]

Spotify has now gained traction in 55 different countries, and the positive effect of streaming services on music piracy has been further demonstrated.[xviii] According to the NPD Group’s Annual Music Study 2012, the worldwide number of illegally downloaded songs dropped by 26% between 2011 and 2012.[xix] Moreover, 40% of the surveyed people who admitted to illegally downloading music in 2011 stated that they did not illegally download in 2012.[xx] According to the NPD Group, nearly fifty percent of those who stopped illegally downloading music cited the use of music streaming services as the primary reason for stopping.[xxi] According to the NPD Group’s senior vice president, “the increased use of legal and licensed streaming services has proven to be an alternative for music fans who formerly used P2P (Peer to Peer) networks to obtain music.” In essence, companies such have Spotify have demonstrated that the “carrot” approach, in contrast to the RIAA’s “stick” approach, has been more successful in curbing piracy: the desire for free, pirated content can be overcome so long as legitimate content is distributed in a superior fashion.

Thus, while the RIAA continues in its failed approach of threatening and sanctioning users, we should instead be putting our efforts into finding innovative solutions to incentivize people to stop pirating music.

James Wong is a J.D. candidate, ’15, at the NYU School of Law.

[i] Music firms target 12-year-old, BBC, Sep. 10, 2003.

[ii] Id.

[iii] Ashlee Vance, The RIAA sees the face of evil, and it’s a 12-year-old-girl, The Register, Sep. 9, 2003.

[iv] RIAA v. The People: Five Years Later, Electronic Frontier Foundation, Sep. 30, 2008

[v] Id.

[vi] Behind the Scenes of SOPA and PIPA

[vii] Brian Barrett, What Is SOPA?, Gizmodo, Jan. 17, 2012; Nilay Patel, What is SOPA and how does it work? The Stop Online Piracy Act explained, The Verge, Dec. 22, 2011.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Sean Poulter, Wikipedia protest hits home: U.S. senators withdraw support for anti-piracy bills as 4.5 million sign petition, The Daily Mail, Jan. 19, 2012.

[xii] Alex Fitzpatrick, ISPs Finally Explain How ‘Six Strikes’ Anti-Piracy Program Will Work, Mashable, Feb. 27, 2013.

[xiii] Id.

[xiv] Id.

[xv] Ernesto, Spotify, An Alternative to Music Piracy, Jan. 2, 2009.

[xvi] Duncan Geere, Spotify hits 10 million users and 10 million tracks, Wired, Sep. 15, 2010.

[xvii] Ernesto, Music Piracy Continues to Decline Thanks to Spotify, TorrentFreak, Sep. 28, 2011.

[xviii] Sven Grundberg, Spotify Expands to 20 More Countries, Confirms Free Music Service, The Wall Street Journal (Dec. 11, 2013, 11:35 AM)

[xix] The NPD Group: Music File Sharing Declined Significantly in 2012, NPD Group, Feb. 26, 2012.

[xx] Id.

[xxi] Id.

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