It was 22 years ago this week, on Semptember 8, 2003, that the Recording Industry Association of America started suing individuals for pirating MP3 files. One of the people caught up in a lawsuit was a 12-year-old honors student who lived in public housing.
Nice MP3 collection ya got there, be a shame if something happened to it
Initially the lawsuit targeted 216 individuals. But that was just the beginning. Before it was over, the RIAA filed lawsuits against about 30,000 people. Their tactics looked like a mafia shakedown. The RIAA would offer to settle for $2,000 to $5,000. Then, if the person refused, then they would bring about a lawsuit. In the case of 12-year-old Brianna LaHara, they settled for $2,000.
In another notorious case, in August 2005, the RIAA sued Jammie Thomas. After she refused their initial offer to settle for $5,000, it went to court, and at one point, in June 2009, the damages reached $1.9 million. On its last appeal, the verdict ended up being $220,000, still a ruinous amount of money for a typical working class citizen. Thomas announced she would file bankruptcy in order to avoid making the payment.
To put put that money in perspective, the median household income in 2003 was $43,000 a year, making that verdict almost five and a half years’ salary. Adjusting for inflation, $220,000 in 2003 is equivalent to $384,000 today.
For what heinous crime did Jammie Thomas owe five and a half years’ salary? Sharing 24 MP3 songs on Kazaa, a mix of pop songs released between 1981 and 2001.
What the RIAA was thinking
The RIAA was scared. The recording industry made a lot of money for the previous three decades or so, partly on selling the same recordings over and over. You would buy a recording on vinyl or cassette, and if you really liked it, you could end up buying it multiple times. Records and tapes can last a long time if you’re careful, but records were notoriously prone to scratching. And once your record was scratched, it would skip, rendering that part of the record unlistenable. Similarly, a tape could get stuck in your tape player and break.
When these things happened, if you liked the recording, you would buy another one.
And then along came the CD. When you bought a CD player, of course you would buy new music on CD, but one by one, you would go through your old vinyl and cassettes, and buy those recordings on CD.
Pink Floyd’s The Dark Side of the Moon was on the Billboard 200 charts for more than 18 years, from 1973 to 1991. Part of that was driven by repeat sales, either replacing a damaged recording with a new record or tape, or buying it on CD. Between that and being buoyed by subsequent recordings from the bank, the record stayed on the charts for the equivalent of a generation.
Opposition to the MP3 format in general
The RIAA was opposed to people copying MP3s. But they were opposed to the very concept of MP3s. They didn’t want to sell you MP3s. And they didn’t want you converting CDs that you legitimately owned to MP3s either. In 2005, Sony BMG even got caught planting malware on about 22 million CDs to try to keep you from converting those CDs to MP3 format, resulting in lawsuits. In a show of blatant hypocrisy, the malware on those CDs violated the copyrights of the original authors.
The RIAA sued the first popular file sharing service, Napster, out of business. They even sued mp3.com, a company trying to provide legal access to CDs you already owned out of business. But that didn’t stop piracy, as other file sharing services soon sprung up. The RIAA thought that they could stomp out MP3 piracy, and possibly even the MP3 itself, by suing the people who used those services for exorbitant amounts of money. They wanted six- and seven-figure judgments to make examples of people.
Did the RIAA’s MP3 lawsuits work?
To some degree, I do think the RIAA’s MP3 lawsuit campaign worked. When I was fixing computers during this time frame, when I found file sharing software on the computer, I had a conversation with them. I told them that first of all, the spyware I found on their computer probably came with that file sharing software, and if they reinstalled and reactivated it, the problem I fixed would come back. Kazaa was one example of file sharing software that notoriously included spyware.
But secondly, there was a small, but not zero chance of getting caught and getting sued, with the cheapest option being to settle for a couple thousand dollars.
About half of the people I had this conversation with told me I was full of it, but the other half pulled their teenage son or daughter into the room and asked me to repeat what I had just said.
But the backlash from the RIAA’s MP3 lawsuits proved damaging. Suing your fans for five and a half years’ salary tends to encourage some of them to pursue other forms of entertainment. And it had long term effects the industry is still feeling. My kids are significantly less interested in music than I was at their age, even though they both can play instruments much better than I ever could.
Why people pirated MP3s
Some people pirated MP3s because they wanted music and didn’t want to pay for it. There will always be some amount of that. But while the RIAA wanted you to think that was everyone, it was sometimes more nuanced than that.
Some people thought downloading MP3s was OK
Some people honestly thought that they were paying for the right to download whatever music they wanted. They may have purchased a piece of software that led them to believe the purchase price included the right to download music. Or they may have believed the subscription they were paying for Internet access included music. Even slow dialup Internet was usually at least $20 a month, and that wasn’t necessarily a trivial amount of money for everyone.
The cost of music
The cost of music also wasn’t trivial. A CD generally retailed for around $15 in 2003, which is $26 adjusted for inflation. There were times when you could get a CD for less, such as when a store would put a popular recording on sale for under $10 to get people to come in and hopefully buy some other things while they were there. But that practice was less common in 2003 than it had been 10 years earlier. It turned out that was price fixing.
The other problem was how frequently you would spend $15 on a CD because you heard a good song on the radio, but then you got the CD home, and didn’t like any of the other songs on it. There are times when the best songs on an album aren’t the singles, and there was an entire category of radio, Album-Oriented Rock, dedicated to that. But having only one good song on an album happened pretty frequently, especially with younger and less established artists.
I can remember hearing commercials where someone asked if you never bought a CD for one song, realized there was only one good song on it, and figured you might as well have just set $15 on fire. It was a common sentiment.
You could buy a CD single. Those usually cost around $5. But it was better to pay $5 for one good song than $15. The problem was, CD singles were usually available for a limited time.
Downloading music you already owned
I still maintain that at least some percentage of downloads were people downloading music they had already bought in the past. Sometimes they didn’t know how to rip a CD. Sometimes their CD was too scratched up to be able to rip. In still other cases, they downloaded songs they owned on vinyl or tape but never bought on CD.
Downloading music you couldn’t buy anymore
In other cases, people were downloading music that they just couldn’t buy anymore. The Traveling Wilburys was an example of a well-known CD by a well-known band that was out of print in 2003. Physical distribution made keeping everything in print forever impractical. In the age of digital distribution, there are still things that aren’t available to purchase, but it’s much less common today than it was in 2003. Yet I still occasionally find titles I can’t buy anymore, whether it’s obscure synthpop from the early 1980s or early music from the Seattle grunge scene.
Ceasefire and truce
Ultimately, it was a computer company that solved the issue. Of course, I’m talking about Apple Computer. The Apple iPod was not the first MP3 player, and arguably it wasn’t the best MP3 player.
But it was the first one that just about anyone could use. I owned an early MP3 player, a Diamond Rio PMP300, and very little about it was easy. I couldn’t imagine giving one of those to my mom, but she could figure out an iPod.
The theory at the time was that once enough senators’ families gave them iPods, and then they realized it was illegal for them to use them, that the laws would change. It made the MP3 into something everyone was interested in, not just a niche thing 200,000 people owned like my Diamond Rio.
Apple normalized the concept of fair use with its Rip, Mix, Burn campaign
I have to give Apple credit for normalizing the concept of fair use by encouraging people in their commercials to rip, mix, and burn CDs of music they had legitimately purchased. Or, for that matter, load the music on an iPod and take it with them.
Then Apple took it a step further and secured the rights to sell music in MP3 format. And in most cases, they had the rights to sell a full album or a single song, solving the problem of spending $15 to get one song.
Inexpensive digital distribution ended MP3 piracy
Once it was possible to buy as much music as you could typically find in your average record store online for around a dollar a song, piracy of MP3s plummeted. It took away the moral argument for pirating the song, and it was more convenient than pirating the song. You paid a dollar, you knew what song you were getting, and it would download quickly.
Before long, other online music stores followed suit, including Amazon and Google.
Not the outcome the RIAA wanted, but a fair outcome
It wasn’t the outcome the RIAA wanted, but it was a fair outcome for consumers. Certainly much more fair than the RIAA’s MP3 lawsuits that made their fans pay thousands of dollars for pirating a couple hundred dollars worth of music.
And now they make money off streaming, which in some cases allows them to double dip again, both selling you the MP3 and making money when you stream it. Not to mention they are making money selling vinyl again.
So I don’t feel bad at all for saying the RIAA was wrong to sue a 12-year-old. It was heavy-handed, the punishment didn’t fit the crime, and that’s assuming they were actually guilty. Things ended up working out OK for the recording industry. And if it hadn’t been for the backlash, they would be doing even better today.
David Farquhar is a computer security professional, entrepreneur, and author. He has written professionally about computers since 1991, so he was writing about retro computers when they were still new. He has been working in IT professionally since 1994 and has specialized in vulnerability management since 2013. He holds Security+ and CISSP certifications. Today he blogs five times a week, mostly about retro computers and retro gaming covering the time period from 1975 to 2000.
And they should, or ought to, team up with the MPAA to create the Music and Film Industry Association of America (MAFIAA).