Tuesday, September 07, 2004

Is Your School Paying Protection Money?

College and university administrators have been approached by the commercial digital music services seeking campus-wide contracts. Hey, you can’t blame a corporation for trying to make a buck. The part that makes me uneasy is the subsequent contact from the RIAA (soon to be mimicked, no doubt, by the MPAA), politely suggesting that we should consider buying into one of these services. They have some suggestions.

The RIAA would claim that they’re just promoting their interests, but we all get the subtext. "Pay up, and we’ll stop harassing you. Pay up, and we promise not to sue you. Pay up, and nothing happens to your students." As far as I’m concerned, the DMCA, adhered to in good faith, should provide our institutions with the liability shield we need. (Caveat emptor: I am not a lawyer!) Beyond that, both intellectual property owners and colleges should have their own methods for dealing with those who are caught breaking the law.

Let's be clear—I obtain my music legally. (Several commercial services could back me up on this claim.) I’m basically your average, law-abiding square. Now I like open source and free software as much as the next copyleftist. This article is governed by a Digital Commons license. I feel, as many do, that copyright law has been progressively tilting toward commercial interests at the expense of public ones; I’d rather not expand those rights any further. But I honor lawful intellectual property rights. I don’t get to choose who owns the assets that are not mine. When recording artists figure out how to cut the venture capital provided by the record companies out of the equation, which some are doing, I’ll be thrilled to pay artists directly. Until such a day, I don’t have respect for those who cry, "Stick it to the man! Steal this record." I’m personally disappointed by the rationalizations for theft that I have heard from so many of the college-aged people I’ve known in the last few years. (I remember it like yesterday, when all we had to worry about was underage drinking and vandalism.)

That doesn’t mean that I personally care to collaborate with corporate meanies either. If a digital music service is a good value proposition to the customer, if the service is marketed well, and is backed with good service, it will sell itself. Apple didn’t need exclusive college and university deals to sell 125 million iTunes tracks.

If you’re a commercial digital music or video vendor, and you want a college or university to broker or endorse your service, these should be the ground rules:
  1. Subscription to the service shouldn’t cost the college or university anything. In fact, if you want us to market your product for you, you should be paying us in cash or kind. The commodities in this transaction are not music files. They are students.

  2. At the very least, your software should work on Windows and Macs. Students can’t buy your music or sync with their MP3 players from a Mac? You haven’t fully addressed the problem.

  3. Students need to clearly get something out of the deal that isn’t available to them as normal retail consumers. I think it safe to assume that every computer-owning, English-speaking, warm-blooded American college student is vaguely aware that she can get a digital song on demand for $.99. This is a good enough price point that it has already turned a lot of former peer-to-peer shoplifters into paying customers. To bring the rest into the fold, you’re just going to have to go one better. (This is where Napster and the rest of the gang do have an advantage. They’re fortunate, though, that Apple hasn’t stepped up to deal a deathblow. Apple’s university program so far is strictly marketing, with no extra bonuses to students who use their services.)
Offer these things, and the gates of the mighty ivory tower will be lowered to receive you willingly.

Of course, if you don’t want to offer students a carrot, you can just keep on banging away at them with your big stick. To a certain extent, vigorous enforcement through legal intimidation may be a deterrent for some would-be pirates. A certain capability to threaten major rights violators is necessary, because some people are going to steal no matter how good a deal they’re offered. Of course, there’s another school of thought that says if you’ve criminalized the behavior of the majority, you’re probably going about solving the problem in the wrong way.

Unfortunately, by publicly rubbing in the 800 settlements reached and the 4000 lawsuits they've brought forward, the RIAA has presented itself like a modern Sheriff of Nottingham, allowing the Peer-to-Peer bandits to play at being Robin Hood. The under-30 demographic doesn't feel sorry for the big bad corporate interests. (They don't have corporate jobs yet.) The recording industry has made it clear that it isn’t pro-consumer, striving aggressively to meet the demands of music fans. They've been recalcitrant luddites, dragged kicking and screaming through every minor change in the marketplace. Using the long 2x4 of the law is their prerogative, but each battle won against young consumers is a pyrrhic victory. They think they’re fighting theft, but all they’re doing is driving the self-perceived Merry Men to hide deeper in Sherwood Forest, where they gleefully dance to looted copies of Modest Mouse.

For the pro-RIAA view of the Napster & higher education story, see "Colleges Rally Against Music Piracy" in the eCommerce Times.

For the vehement opposition, see "More universities agree to RIAA/Napster 'protection'" at The Register.

If you were interested enough to read this article, I assume you're already familiar with Lawrence Lessig. But just in case you aren't, see lessig.org

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