So the court came down hard on Tenenbaum. Fuck. I was hoping the trial would last at least a week.
There are so many things to say about this. There's the idea that the punishment is excessive (Steve Lawson was one of the first to point out that $22K per MP3 is a complete joke). There's the idea that the record industry continues to fight against inevitable change, instead of working hard and in good faith to develop a viable business model that takes into account new technology, the livelihood of musicians, and the needs of audiences. And there's the idea that none of this will do what the RIAA appears to believe it will do -- specifically, intimidate other music fans into giving up "filesharing" altogether.
That last bit is key. Let me say it again, in a slightly different way: this case is not going to have much (or any) effect on the day-to-day lives of music fans -- except perhaps to galvanize them against the industry a bit more. So it's basically a very damaging exercise in futility, a lashing-out, a naked and spiteful display of power by an already-doomed giant. If this is a "war," as Debbie Rosenbaum says, it looks to me like Vietnam. "Filesharers" (i.e., most of us) are the Viet Cong, and the record industry is the US military-industrial-congressional complex, throwing massive amounts of firepower at the enemy, and finding itself flummoxed when a whack-a-mole dynamic ensues.
The fate of the twentieth century version of the music industry, as represented by the RIAA, is sealed. No matter how anti-social human beings may get, you cannot prevent them from sharing stuff they like, especially when the technologies to facilitate sharing are so ubiquitous. And so this trial was an expression of a strategy that has already failed. Mr. Tenenbaum, unfortunately for him, is collateral damage.
Incidentally, I find myself wondering why no musicians were singled out by the RIAA Dragnet. Surely musicians steal music too? Don't we? (Yes, I'm talking to you, fellow jazzers. Don't tell me no one has ever burned you a copy of a CD.) What would a musician have done in the face of one of those pompous subpoenas? How would a musician have "fought back"?
Well, I can't speak for anyone else, but I think I know how I would have approached things. (Not that the trial would have had a different outcome.)
Mostly, I would have wanted to look the court in the eye, at some particularly dramatic moment, and ask: "Do you really love music?" Assuming the answer was "yes," I'd go on: "Do you want more of it in the world? Would more good music, on balance, be a good thing for the planet?" Assuming the answer was again "yes," I'd go on some more: "Where do you think good music comes from? A vacuum?"
And if the answer to that was also "yes," I'd know I was dealing with the assumption that musical brilliance springs full-blown from the mind of genius composers who lock themselves in musty attics for years on end, and whose output does not depend upon interaction with a vibrant, accessible musical culture. I'd have to go into a long rant about an opposing (and, in my opinion, more accurate) theory: that in order to make good new music, musicians have to be knowledgeable about already existing music, and being knowledgeable about already existing music (especially on a typical musician's income) sometimes means that it has to be passed around for free.
I'd point out that biographical data usually suggests that, at some point, developing musicians have access to a public and / or private social context in which they can hear a good deal of high-quality music. Everyone knows, for instance, about Louis Armstrong, and the public music making that occurred in the New Orleans of his youth (parades, funerals and other social events). I'd talk about Bach and Zappa, and any number of my other heroes and heroines, and how they depended upon the existence of a public sphere for music, and to the extent that they couldn't get music that way, and to the extent that they couldn't purchase it, they too had to "steal" it. Sheee-yit, there was filesharing way before Kazaa.
Oh, I'd school those highly-paid, tone-deaf lawyers. I'd argue that, yes, musicians need to be remunerated for their work (not that you were ever very good at making that happen, dear RIAA!), but if you try to make sharing impossible (and that's what's at the bottom of the industry's slippery slope, isn't it?) you're going to end up with a musical culture that is a whole lot less interesting and creative.
I'd talk about how it's not about not paying for music if you can (something no true fan would ever even consider), it's about not automatically being denied music just because you can't. It's about ensuring the existence of a "musical commons" (part of the "intangible commons of the mind"), which doesn't have to include all music, but which has to exist, and which, as a commons, should be accessible regardless of one’s economic resources.
(To clarify that "slippery slope" crack, I'd argue that the RIAA, with its infernal DMCAs, and its confounded Sonny Bono Copyright Acts, its craptacular DRM technologies, and so on, has, since this nonsense started 10 years ago, been pushing toward a totally proprietary listening environment -- the complete and precise opposite of a musical commons.)
What else? I'd talk about the generally lame state of music education in the US, and how that further depletes the musical commons.
And then, for good measure, I'd point out that the framers of the Constitution thought copyright should be used to attract people to a life in the arts and sciences by providing a material incentive -- which is different than saying that copyright should reward the hoarding of intellectual property as if it was a scarce good. Copyright was designed to promote creativity, not to divide musical culture up into little fiefdoms.
And finally, as they carried me out of the courtroom, kicking and screaming (I presume), I'd leave them with this bombastic recap: if you think music can optimally continue in an environment in which the act of sharing is technically, officially, and legally verboten, you're kidding yourselves!
[Photo credit: mercredis]