It's A Real Fight....more on Kazaa

So Jason and I seem to be at odds over this topic.

To bring you up to speed, J posted an article discussing an Australian court's ruling against Kazaa for copyright infringement. I, in turn, posted a comment on an artilce discussing the fact that the US Supreme Court's ruling in Grokster (and taking into account the Kazaa case) have made no difference. Then the accusations flew and I think it's time for a thorough comment.

Beginning with Napster, the major copyright infringement cases related to music piracy have not reduced piracy. All reports indicate that piracy has increased. Nevertheless, there have been a number of domestic and international court rulings that have hit a significant number of people and companies hard. The fact is that the cases have effected those defendants, not the millions of others.

Now J points out that these cases, "leave the door open for prosecution." The door has never been closed. Copyright law has mostly expanded over the years, increasing and expanding rights for authors/owners, not limiting them. This many years after the DMCA was implemented, only now are domestic courts finally rendering decisions that demonstrate that it was not intended to create "new" copyrights; only to clarify existing rights. Copyright owners have the same rights they have had for many years. That being said, it's a bit off topic.

My point in referencing the article stating that the cases have had no impact was to merely make a point, not to take a stance. But now that I've been pressed, here is my stance: the entertainment industry spends its money on prosecution over incentive. Prosecution hits defendants, not the public. Incentives hit the public, not defendants. So, if you can hit 20,000 people (defendants in entertainment industry lawsuits) or 200,000,000 people (masses involved in downloading [illegal or no]), which group would you choose? These numbers are, of course, made up, but the point is that the approach taken by the entertainment industry is backwards.

Let's take a lesson from Apple. The iPod changed the world. From boom boxes, to Walkmans, to portable CD players, to computers strapped in the back of cars for MP3 files, to...the iPod. Together with iTunes and the iTunes music store, Apple has changed the face of digital music. It has given incentive for consumers to buy, not steal. Sure, I'm certain there are a large number of people still illegally downloading music to their iPod, but my point is that Apple created an incentive to buy.

What has the music industry done to provide incentive? Nothing that I am aware of (other than licensing its content to Apple, but that doesn't count because it's not perceived as the music industry, and perception is everything).

To the public, the entertainment industry is a multi-billion dollar industry crying foul. It sues people, it attempts to manipulate (like those stupid DVD commercials that show a guy snatching a purse..."you wouldn't steal a purse? why music?"), and it experiments with useless technology, i.e., digital locks, which can be cracked the minute they are created. Everything it does is reactive, not proactive.

Where is the incentive to purchase music? This is my point.

So, I'm accused of being drunk, immoral, etc., etc., simply because I quote a fact. I'm accused of supporting the other side of the argument, because I quote the other side. I play the devil's advocate. Well, I'll play along...I'll question the entertainment industry's tactics. I think they suck. I'm not saying that it should stop suing. After all, I am a lawyer ;). I'm just making the point that suing doesn't stop the masses, it stops defendants. And, lawsuits tend to provide incentive for pirates to develop craftier methods of piracy (Napster was centralized and is shut down. Up pops Grokster. Decentralized, but it provides software that is used for piracy. It's shut down. Up pop so-called "Darknets" - private networks for sharing content. Decentralized. Not public. Up pop this, up pop that. Technology will get better and better as the cases shut down each predecessor.)

So, here's my challenge. Why doesn't the entertainment industry provide incentive to stop piracy?