Don't worry. There is no crisis. According to Frank Creighton, senior vice president and director of antipiracy of the Recording Industry Association of America (the legal and lobbying arm of the recording industry, whose members produce 90 percent of the sound recordings sold in the U.S.), the specter of Web-savvy, music-hungry adolescents taking down the majors has been met and, if not completely defeated, forced to retreat into the deep recesses of the cyber-underworld. "I think we are very comfortable. I think we have the sense that we know what we are doing," says the recording industry's top enforcer.
It wasn't that way half a year ago, when Creighton complained to me that the threat from conventional hard-copy pirates was far outweighed by the menace of a new generation "who, with the energy it takes to click a mouse, can send thousands of illegal MP3 music files around the world." Fortunately for his employers, Creighton's fears that their bottom line would sink beneath a virtual sea of liberated product have proven overblown. He states in the R.I.A.A's midyear antipiracy report, released on Aug. 17: "We're finding sites with fewer songs available for download, which means illegal sound recordings are becoming harder to find."
So what happened in the last six months? How has law and order asserted itself on the Web?
Sounding a lot more sanguine than he did last spring, Creighton makes the R.I.A.A.'s success in the fight against Internet piracy seem almost preordained, saying, "We saw it coming down the road and were fairly quick to make sure we had resources in place to address the situation." Six months ago these assurances rang hollow, when R.I.A.A.'s best strategy against MP3 bandits was educating the consumer about the legal rights of copyright and content owners (record companies) to their royalties. That 60 percent of what the association labels "music archive sites with unauthorized content" were on university ISPs (Internet service providers) made an "educational" approach particularly hard to sell.
Creighton says, "A year and a half ago, we started by finding a pilot group of about 10 universities, most of which were high-technology-based institutions. We said, 'We want to work with you, and we don't want to be heavy-handed. We don't want to make a business out of bringing criminal cases against college students. We need to educate them, and we need your help in figuring out the best way of going about that.' They helped us put together a plan, a curriculum and posters that they thought would be in a form that students would spend their time looking at."
The antipiracy division has both human employees (Creighton refuses to divulge the exact size of his "army") and software that allow it to surf the Net 24 hours a day in an endless search for sites offering downloadable?unauthorized?music content. When an offending site is located, the R.I.A.A. issues a cease-and-desist order demanding that the material be immediately removed while reminding guilty parties that they are involved in a criminal activity that can result in severe legal remedies. (The NET?No Electronic Theft?Act, which was signed into law by President Clinton in December 1997, makes it illegal to reproduce or distribute copyrighted works, even if the defendant is acting without a commercial purpose. Distributing 10 or more copyrighted works on the Web that have a total value of more than $2500 is a felony that can earn you up to three years in prison and a fine of up to $250,000.)
In essence, the R.I.A.A. made clear to the universities that some of their students were criminals and that by hosting their sites they were condoning criminal behavior. It was here that Creighton's "educational" efforts really paid off. "We applaud the universities for participating with us and educating their faculty as to what is an allowable usage and what is not," is how he puts it. The R.I.A.A. has dubbed the effort "soundbyting," and as an ancillary part of the program, the universities themselves agreed to serve as the association's cops at no cost, taking upon themselves the job of disciplining students who're in violation of the new laws governing cyberspace.
How much trouble are the kids in when they get busted by the dean? "It's out of our hands generally," says Creighton. "We just ask that the site be removed. We have heard of all different levels of punishment, from computer privileges being taken away to some cases where they have actually been expelled."
Creighton agrees that having to explain to Mom and Dad why you blew a college education over some Nine Inch Nails tracks should be sufficient deterrent?and apparently, for most of the fledgling felons, it is. "The percentages have been the real indicator," he notes. "A year and a half ago 60 percent of the problem with Internet piracy existed at the university level, 40 percent at the commercial ISP level. The number now is about 30 percent at the university level and 70 percent on the commercial level."
On the university level at least, the R.I.A.A. seems to have dealt with virtual lawlessness at the cost of only a few slightly disrupted lives. That was before last week, when Jeffrey Levy entered a guilty plea in what is the first conviction under the NET Act. A senior at the University of Oregon, Levy was turned in by school authorities to the Oregon state police and the FBI after they noticed a large volume of bandwidth traffic being generated from a website on the university's server. Levy has copped to making thousands of pirated software programs, movies and music recordings available for downloading from his site, and will be sentenced in November.
They may throw the book at him. The feds know that even the most recalcitrant pirates will be watching to see if Levy gets hard time. The Justice Dept.'s press release announcing the guilty plea quotes James K. Robinson, assistant attorney general for the Criminal Division, saying, "Mr. Levy's case should serve as a notice that the Justice Department has made prosecution of Internet piracy one of its priorities. Those who engage in this activity, whether or not for profit, should take heed that we will bring federal resources to bear to prosecute these cases. This is theft, pure and simple."
Meanwhile, the R.I.A.A. has expanded its soundbyting program to every university it has sent a cease-and-desist order to, and proudly reports that 300 colleges and universities are currently policing the record companies' copyrights.
Soundbyting has also served as model for the R.I.A.A.'s ongoing efforts to purge commercial ISPs of sites containing unauthorized music files. "We are running an educational program in that sector as well," says Creighton. "We want them to inform their customers that they are working with private industry to deal with these legal infringements and in many cases they have an obligation to do so." What he's specifically talking about is the Digital Millennium Copyright Act (which Congress passed in 1998), which provides the R.I.A.A. with another tool for protecting its members' property from unauthorized Web distribution. Called the "expedited subpoena process," it gives the R.I.A.A. access to an ISP's account information that had previously been off-limits.
"One of the problems of the Internet was that there was so much anonymity out there that we would send cease-and-desist orders and the site would be taken down and go up the next day on a different ISP," Creighton complains. "It became a badge of honor in some of these Internet communities to say that the R.I.A.A. has taken my site down 10 times and it's still running."
The coercive power of the R.I.A.A. to protect its members' property rights has never been underestimated by anybody with even a smattering of knowledge about the industry. It's a testament to this power that not a single ISP that's been sent a cease-and-desist order has refused to comply. "We have brought five pieces of litigation over the past two years against music archive sites," Creighton notes, "and none in the last six months."
It should be noted that MP3's backers have been asserting for years that threat of wide-scale piracy on the Web was overblown, and the hysterical rush of the majors to find ways to encrypt their product was unnecessary. Given Creighton's success rate, it seems that 1998's Internet piracy hysteria was about as prescient as the claim two decades earlier that the recordable cassette would beggar the recording industry. He concedes what the R.I.A.A.'s critics have always claimed: that while it is easy for Net pirates to put up a site and distribute illegal product around the world, it is just as easy to find them and take them down.
"Enforcement is a global issue," Creighton warns all would-be scofflaws, "and I am coordinating on a weekly basis with all our international counterparts. If you want to put up a server in the Netherlands thinking that you can get around the reach of U.S. law, trust me?we are working with the Dutch. They will find you, and the material will come down."