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The Borg v. the RIAA
By Eric de Fontenay (Founder & Publisher)
(more articles from this author)
2003-07-14
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Who could have predicted it? Wasn't it common knowledge that file sharing would recede to the farthest edges of the Net in reaction to the RIAA's legal threats. The time-tested rule of extreme punishment as the best form of crime prevention is the cornerstone of more totalitarian regimes such as Saudi Arabia as well as the primary justification for capital punishment in the US. Seems someone forgot to explain the rules to file sharers, though, as p2p systems reported a surge in new users and volumes of traded files. And I'm not talking about the newer 'anonymous' systems either, but the old-guard 'monitorable' Kazaa & Morpheus.

There are only two possible explanations for this blatant inconsistency. The first is that file sharers are irrational decision makers, willing to face the risk of costly litigation rather than give up or miss out on the chance for free music. While such a degenerative effect of file sharing might appeal to industry PR types ("Warning: File sharing can make you dumb!"), a more plausible alternative explanation is that file sharers are acting in the interest of the file sharing community/movement as a whole versus as isolated & disconnected individuals. In other words, existing/prospective file sharers are tacitly colluding their actions to ensure the survival and long term prosperity of the whole.

This hypothesis assumes a few things: (i) that file sharers are conscience that the actual risk of a lawsuit is small in the sea of file sharers; (ii) that the RIAA will focus/restrict their efforts on the worst offenders; (iii) that the RIAA is not targeting downloaders which constitute the major portion of the file sharing community.

If these assumptions reveal themselves to be accurate, the most appropriate action for file sharers would be to add to their ranks and crank up the sharing. This is because that set of assumptions provides a major loophole in the RIAA's strategy that actually reduces the average file sharer's risk to nearly zero. The more members join the community and the more trading each engages in, the perceived risk is reduced further, leaving the industry with a grave credibility problem. It's akin to everyone on a 55 MPH highway going 65 MPH: they are all breaking the law, but by doing it collectively, they minimize the risk any actual enforcement. Law enforcement eventually accepts that when the traffic as a whole goes at 65 MPH, it becomes the defacto speed limit.

The problem with the alternative - the RIAA straying from that set of assumptions - are the political ramifications that would likely result. For if the RIAA were to start suing downloaders or randomly suing individuals irrespective of the volume of files they trade, the true risk to the average trader would increase significantly as well as their incentive to exert their extensive political voice. That's why p2p companies recently formed a lobby group to help direct that political voice to the appropriate channels of government. Just imagine on the one hand say 25,000 youngsters suddenly left destitute due to copyright infringement lawsuits, and on the other, the ensuing political uproar from parents, extended family, friends, a sympathetic file sharing community led by their new lobby group, the media,... all the way up to the halls of Congress. And 25,000 is barely a dimple in the global file sharing community, leaving you with better odds of winning the lottery than getting sued.

It's a scarry thought: an ever-growing community of like-minded individuals sharing a collective conscienceless - call it a hive-mind - sweeping all opposition aside in its pursuit of a single goal: to trade more & more music.


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