Free? Illegal? ... What's the difference?

RIAA logo

Peter Jenner

Attorney Lory Lybeck

Mitch Bainwol, chairman and CEO of the Recording Industry Association of America.

Fred Von Lohmann of the Electronic Frontier Foundation.

Attorney Ray Beckerman

TEXT OF STORY

KAI RYSSDAL: There's yet another downloading option for music fans this week. Spiral Frog is an ad-supported site. If you can deal with the ads you get the music free. It's limited to just one recording company, though -- Universal. And the music comes with lots of restrictions on how it can be played or copied. Free doesn't always mean legal when you're downloading music. And critics say the recording industry's muddying the waters its spent years in court trying to clear up. In the second part of our special series on the music business, Marketplace's Bob Moon looks into the strategies and casualties of the legal blitz that began four years ago this month..


Bob Moon: Right from the start, the big music labels have had it in for file-sharing fans. This nasty scolding that Madonna unleashed in a decoy download didn't seem to work:

MADONNA: "What the (bleep) do you think you're doing?

And the industry quickly escalated to a full-scale legal assault that now exceeds 20,000 lawsuits. Mitch Bainwol heads the Recording Industry Association of America:

BAINWOL: I often run into musicians and artists who say, "Thank you for what you're doing. We know you take hits for this, but it's about my future, it's about my dream. And I know that our property has to be respected."

Critics counter that the big four music labels have grown into an overzealous international cartel.

PETER JENNER: As someone in the industry, it's alarming.

Former Pink Floyd manager Peter Jenner currently represents an artists' coalition in London. He fears the industry is indiscriminately attacking some of its biggest fans:

JENNER: It's the same way that when you see lots of civilians being killed in a war, you know that's bad for your war. And I think it's the same if you're harming individuals randomly.

No one disputes that millions around the world continue to engage in unauthorized sharing of music. But critics complain the industry is using desperation tactics that haven't solved the problem and, they charge, are both legally and morally dubious.

Those who find themselves in the legal cross-hairs are considered by the industry guilty until they prove themselves innocent. Attorney Ray Beckerman says that doesn't allow for the real possibility that, say, parents or grandparents aren't aware of what their kids have been up to online, or that someone might be sneaking onto an unsuspecting neighbor's wireless connection:

RAY BECKERMAN: The RIAA doesn't conduct an investigation to find out whether someone committed a copyright infringement. It conducts an investigation to find out who paid the bill for an Internet-access account. And that's where their investigation should begin, but in their weak minds that's where it ends.

Attorney Lory Lybeck contends that many lawsuit targets end up handing over $4,000 or $5,000 just to escape even more ruinous court battles. That includes many parents, who he says aren't really guilty of anything:

LORY LYBECK: Parents are falsely accused of downloading music and are sued inappropriately for downloading music every day.

MOON: Aren't they responsible for what their kids do?

LYBECK: No, the law certainly doesn't support that, unless they're benefitting from it in some way.

When parents do decide to fight, he says, lawyers show no shame training their legal guns on the children. Lybeck points out the industry has sued kids as young as 12 -- nevermind something the head of Warner Music, Edgar Bronfman, told an interviewer.

LYBECK: He was being questioned as to whether his children had downloaded music, and he frankly admitted they had. "But don't worry, I've had some very stern conversations with them, and they're not going to do it anymore." Which, out of fairness, a lot of parents would like to have that opportunity, rather than being pestered and abused and threatened with financial ruin with a federal lawsuit.

The industry might actually be tempting youngsters, and even adult fans, to try out the very file-sharing sites it's battled for years to shut down.

You can hear this confusion as the head of the RIAA lays out his case for us. Initially, he argues flatly that "free" means "illegal."

BAINWOL: The reality is, almost everybody understands that the practice of taking copyrighted works for free is illegal.

But what about when the industry is giving away its own free songs? . . . This summer, a deal was announced to flood file-sharing sites with 16 million free downloads, reportedly from the popular rapper Plies.

Trouble is, fans were left guessing exactly which track would be legally free. And until the file is actually downloaded, there's no way to be sure that it's the "authorized" version that includes an embedded ad. Sprint pays for its logo to appear whenever the song is played.

The label that's reportedly offering these free songs is one of the same companies that's been suing to discourage file sharing. Question the head of the RIAA on this haziness and -- listen closely -- Mitch Bainwol starts making subtle exceptions.

BAINWOL: Teenagers today understand that if you get something for free, in all probability, unless it's explicitly legal, it's not.

FRED VON LOHMANN: How's the fan supposed to know?

That's Fred Von Lohmann of the Electronic Frontier Foundation. He complains the moving lines could lure unsuspecting fans into being sued. And it's not just the file-sharing sites that leave him confused. Some online bulletin boards also offer free MP3 music files, seemingly with the industry's blessing:

VON LOHMANN: Promotional CDs get sent to these MP3 bloggers all the time, really encouraging people to post some stuff on the Internet, get some buzz going. There are some independent artists who take a much more open-minded view to file sharing. Many fans have no idea whether their favorite artist is on an independent label or on a major label. This is just an area of continuing confusion.

We tried asking the industry's top representative how the average law-abiding teenager -- or even his own organization -- might tell the difference between what's legal and what's not. But even Mitch Bainwol didn't seem to know clearly:

BAINWOL: There are tools, in terms of, uh, uh, authentication here, and, uh, uh, I'm not a technician so I'm, I'm, I really can't go into that in great detail. I'd be happy to get you somebody who can.

Check the press release announcing those free ad-supported downloads we mentioned and it simply says, "The tracks are indistinguishable from illegal, pirated content."

Despite this left-hand, right-hand confusion, and questions about his industry's tactics, Bainwol told us he's convinced the ongoing lawsuit campaign against music fans continues to be a valuable educational tool.

In Los Angeles, I'm Bob Moon for Marketplace.

RYSSDAL: Tomorrow, to wrap up the series, Bob explores some of the ideas being proposed to end the file-sharing standoff.

About the author

Bob Moon is Marketplace’s senior business correspondent, based in Los Angeles.

Peter Jenner

Attorney Lory Lybeck

Mitch Bainwol, chairman and CEO of the Recording Industry Association of America.

Fred Von Lohmann of the Electronic Frontier Foundation.

Attorney Ray Beckerman

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