Why are music companies suing their customers?

Isn’t it bad business to sue the people you hope to sell a product too? Why is the music industry going down the path of litigation? Can they hope to succeed with this strategy?

I address these questions in my recent column for the Social Affairs Unit in the United Kingdom. You might know that an international music consortium has just started bringing lawsuits in the UK and on the continent as well, thus prompting the essay.

Here is the bottom line:

I see the music companies as trying to hold back a new commercial norm. Specifically, the music companies are trying to maintain the old norm that you should always pay for music.

Two years ago most [American] downloaders did not know that their activities were illegal. Few uploaders felt guilty about making large numbers of songs available for free on the Internet. It was viewed as akin to lending your CDs out to your friends, except that the “friends” here were both anonymous and large in number. “Art should be free,” right?

Since the United States lawsuits, there has been a subtle shift of opinion. Many people, especially those beyond their teenage years, are now proud of not being downloaders. They brandish their Apple iPods with pride. The cultural climate has shifted to the point where people, even if they download, are embarrassed to admit as such. Only in the under-twenty crowd is illegal downloading still a badge of honor. And many of these children now face (admittedly imperfect) regulation from their parents.

The music industry knows that the long run will bring a network of free music. It knows that free music may have illegal status, a “grey” status, white status (recorded from the radio), or perhaps be pirate (from abroad) but not illegal in the actionable sense. But there will be two networks, a pay network and a free network.

The pay network stands a good chance of competing against the free network. Perhaps the pay network can offer better sound quality, tie-ins (concert tickets, T-shirts, etc.), upgrades and maintenance service, better information such as album liner notes, song selection services, easier interface, and other benefits. The future course of technology is difficult to predict. Nonetheless it is easy to see why a pay network will have a greater ability to finance these goodies than will a free network.

The music companies – present and future suppliers of the pay network – do not wish to face a ten year period where everyone is used to getting music for free. They do not want an entire generation to grow up thinking of music as a free commodity. They do not want hackers and illegal downloaders to become established as folk heroes.

Once commercial norms become established, they are difficult to dislodge. We are all used to breathing air for free. Imagine the response if suddenly we had to pay for air as we now pay for ice cream cones. Maybe the air would have a better quality and the price would be very low. Still I predict there would be a public outcry. It would be very difficult, in the legal and public arenas, to set up a business to charge people for breathing clean air.

Similarly, bread riots were a common phenomenon of the twentieth century in the Third World. When bread subsidies were removed or cut, the price of bread would rise. The new price of bread still might be lower than would be found in many other poor countries. Still rioting might occur. People cared not only about the absolute level of the bread price, but the level of the price relative to what they had been expecting.

The music companies know they are in for a rough ride. They will never win the competition on the basis of price, but they hope to win on the basis of quality. They feel they need commercial norms on their side. And this means that downloading cannot be allowed to proceed unanswered and unhindered. They cannot live with a norm that music should be free.

Note that the music companies are demanding far smaller penalties than they might hope to win in a formal lawsuit. This is not out of benevolence to the illegal downloaders. The lawsuits are about spreading the idea that downloading is wrong and illegal, not about inflicting the maximum possible punitive damage. Think of the lawsuits as one way to buy space in the newspaper, but without paying advertising rates. And the company gets the journalists – a more credible outside source – to be the ones reporting that downloading is illegal. Too high a penalty would make the companies look mean.

I am not here to attack or defend the behavior of the music companies, but rather to explain it.