July 23, 2007

The Record Industry Is Watching You

By: Dorian Davis

“I have no privacy,” sang one-hit wonder Rockwell, as he crept around the long, shadowy hallways of his eerie, empty house, under the watchful eyes of intruders, both real and imagined, in his 1984 music video, “Somebody’s Watching Me.”

Now, the pale faces that stared out at Rockwell from behind his shower curtain have transformed, in the 21st century, into digital apparitions, waiting inside the computer instead of in the closet.

The most notorious voyeur has been the record business, which, since 2003, has watched users of file sharing (peer-to-peer) sites such as Kazaa to protect its music from pirates across the United States.

Its move has come on the heels of a perceived slump in sales, with only 614.9 million CDs shipped in 2006, down 26.7 percent from sales in 1996. Panicked, record companies have used the information obtained through their surveillance programs to sue repeat offenders, the latest of whom include students at 19 universities, who received warning letters in June.

Many politicians have come down on the side of the record business, advocating the pursuit and punishment of people who participate in illegal file sharing. Norm Coleman (R – MN) convened hearings on the matter in 2003, and politicians on both sides of the isle, including Joe Lieberman (I – CT) and Barbara Boxer (D – CA) have weighed in on the perils of music theft.

But, with a crime committed in the confines of our own homes, this pursuit and punishment involves surveillance, misrepresentation, and indiscriminate use of the courts, and it sets a precedent for the intrusion of business into private life.

Complaints that file sharing was eating into the music business began in the 1990s, when record companies saw a slump in CD sales. Fast to put the blame on sites such as Napster, where users could trade music for free without buying a whole CD, the music business scrambled to stop what amounted to 2 billion free trades per month in 1999, a black market in music that culture critic Andrew Keen has described as “one of the most brazen mass larcenies in history.”

In 2003, record companies, under the banner of their trade organization, the Recording Industry Association of America (RIAA), began their counterattack on music piracy, suing more than 21,000 people, including a dead man, a dead woman, and a 12-year-old girl, whom they had accused of illegally downloading music on peer-to-peer sites, particularly on Kazaa.com.

“The year the lawsuits happened, there was near-universal agreement that there had been a drop in the usage of peer-to-peer sites,” said Geoff Mayfield, Director of Charts at Billboard magazine, which compiles a weekly list of the top-selling records in the United States. “But not long afterward it became clear that analysts were not as unanimous in that opinion.”

The whole episode has raised some serious questions indeed. For one, can record companies sue without establishing damages? The suits, which have interrupted thousands of lives, are predicated on the argument that stolen music translates into lost revenue for the music business. To make the case, however, record companies have to prove that each user would have bought the music at retail had it not been available online. This, of course, is impossible.

For another, are the record companies micromanaging the behavior of their customers in a way that no other manufacturers have? The music business contends that service-providers, such as AT&T and Bank of America, monitor their customers’ transactions on a regular basis, and even contact customers when a transaction seems out of the ordinary. Of course, the problem with this argument is that music, in the form of a song, is not a service; it is a product.

There is no reasonable expectation of privacy with phone records, and banks statements, since AT&T and Bank of America are service-providers, which bill costumers on a monthly basis. There is a reasonable expectation of privacy with a one-time purchase because no one expects a Virgin Records salesman to follow him home and ask, “How is that Britney CD?”

So, while screen names and other information posted on peer-to-peer sites are public, there is some question as to the ethics of companies that wait in the shadows, behind misleading screen names, to keep tabs on their own customers, and even on people who have never bought their product.

Once record companies start tracking a particular screen name or IP address, they can monitor all downloads a user makes — even those irrelevant to the file sharing case. In the course of watching a user download one of their products, record companies could also watch as the same user downloads a porn film, note the title, and even have a window on his sexual preferences. Is that information the business of the RIAA?

The music business has a valid concern with the protection of its product, but its interests have to be balanced with the interests of the public, who have a valid claim to privacy. Otherwise, consumers end up peering, like Rockwell, over their shoulders, in the privacy of their own homes, a vision from a different, although equally disturbing, 1984.

Dorian Davis is a writer living in Washington, DC.

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