Category: Law

Yes it might stifle technological innovation, but it won’t stop or perhaps even diminish illegal file-sharing.  You might recall that the major file-sharing service KaZaA is missing from the suit, as it falls under Australian law.  Yes there is a suit in Australia but what matters in the longer run is the strength of the most permissive international ruling.  Our Supreme Court is unlikely to fit that bill.

Reason.com adds more.  David Post has a detailed analysis of the case.

…it is difficult to judge how a given level of illegal downloads will affect economic efficiency. First, the quantity of music sold in a given year is not a very accurate indicator of how much value consumers receive from music. Fans commonly experiment by buying a number of CDs, only a few of which pay off and become favorites. Many or most of the products bought are quickly regarded as disappointments and discarded; in this regard the market for CDs differs from the market for refrigerators. Whether consumers like what they bought is at least as important as the absolute size of the industry.

The Internet already helps music companies track fan demands. When fans sample on-line music, usually they can figure out whether or not they would like the entire CD. Many of these fans still buy the CD, to get better sound, to have the music in more convenient form, to receive the packaging, and so on, as discussed above. These fans usually will be happy with their purchases. As a result, it will be harder for the music companies to issue low quality CDs. Of course this tighter monitoring of quality may cause the number of new issues to decline. In nominal terms the industry will shrink, but at the same time it may produce more real value for consumers. For this reason, a shrinking music industry, as measured in terms of either dollars or new releases, can be desirable from an economic point of view.

Evaluating the efficiency consequences of illegal downloads is difficult for a more fundamental reason. Most generally, we do not understand the demand for music very well. We do not understand what most fans want from their music. Just as book buyers are not always readers, the music market is not always about the tunes. Sometimes it is about symbolic values.

It is a mystery why fans spend almost all of their music money on product of very recent vintage. Until we untangle this puzzle, and we have not yet, we will not understand how Internet music is likely to affect consumer welfare.

Most consumers are not interested in buying much music from 1950, regardless of its objective quality in the eyes of the critic. Music from 1650 is even less popular. Few people search the history of music for “the best recordings” and focus their buying on those. Rather, in any given year the most recent recordings dominate the charts. At a typical moment, all of the Billboard Top 40 singles, or albums, come from the last two years of recorded output. Every now and then there is a Beatles revival, but such events are the exception rather than the rule. Consumers evince an overwhelming preference for music produced in the very recent past.

Most likely the music market is about more than simply buying “good music,” as a critic might understand that term. People buy music to signal their hipness, to participate in current trends, or to distinguish themselves from previous generations. Buyers use music to signal their social standing, whether this consists of going to the opera or listening to heavy metal. Others value partaking in novelty per se. They find newness exciting, a way of following the course of fashion, and the music market offers one handy arena for this pursuit. For some people music is an excuse to go out and mix with others, a coordination point for dancing, staying up late, drinking, or a singles scene. Along these lines, many fans seem to enjoy musical promotions, hype, and advertising as ends in themselves, and not merely as means to hearing music. They like being part of the “next big thing.” The accompanying music cannot be so bad to their ears as to offend them, but the deftness of the harmonic triads is not their primary concern.

In other words, the features of the market that matter to the critic may not be very special to consumers at all. Most of all, consumers seem to care about some feature of newness and trendiness, more than they care about music per se. So how much does it matter, from a consumer’s point of view, if weaker copyright protection reshapes the world of music?

Under one hypothesis, the specific musics of our day are easily replaced, or in economic terminology, highly substitutable. All other things equal, people will buy the new, but they could get along with alternatives almost as well. For instance perhaps “ravers” could use Gregorian chants to define their cultural status. Indeed one chant CD (“Chant”) had a very long and successful chart run. Young rave and techno fans were among the largest buyers of this recording.

Or perhaps half the supply of music could do almost as good a job of supplying symbolic goods, especially if music companies can track fan demand with greater facility. Alternatively, individuals could rely more heavily on alternative means, such as fashion, to signal their social standing and participate in trends. These points are all speculations, but they show the difficult of pinning down what music fans really care about.

Consider two further examples. First, in the former Soviet Union, dissident rock and roll bands performed many popular culture functions and commanded a fervent following. These bands fell short of the objective critical quality of their Western counterparts. Still they provided consumers with many useful services, including a means to signal rebellion against the Soviet state. Second, in 1941, the major radio stations refused to carry the catalog of the music publisher ASCAP, in a dispute over fees. At that time ASCAP, the leading music publisher and clearinghouse in the United States, dominated the music market. The stations instead played BMI music, which was more oriented towards rhythm and blues and offered less Tin Pan Alley, crooning, and big band. Radio listeners seemed to take the sudden change in stride; there is little evidence of a serious problem. Music fans continued pretty much as before, except for the change in styles and associated music publishers.

For whatever reason, most consumers find it harder to reorient their attention towards older musics. Perhaps only new music allows for effective signaling and sorting. When music is new, individuals can show that they are connected to current modes of thinking and feeling. Not everyone can know “what is in,” because “what is in” is changing so frequently. That very fact makes it worthwhile for consumers to put effort into following the new. The music market might therefore churn product to help people communicate their identities to others, and to help people play an ongoing dynamic game of clues and cues. Furthermore previous generations already have claimed older musics, making them less well suited for social differentiation. Perhaps musical taste is a game of secession and repudiation more than anything else.

So the music of Chuck Berry “no longer fits” the world of 2005, and cannot be made to fit it. Critics still love the music, and some niche consumers will be drawn to its merits, but it can never hold the current place of Britney Spears. That is why hit reissues are rare. It is not because consumers still remember the older musics. Rather most consumers do not care about them very much. It thus appears that the value of popular music, to most consumers, consists of some temporally specific tracking quality. This may involve an ability to follow, correspond to, or perhaps even shape the spirit of the times. Rejection of the previous Zeitgeist may be part of this same process. For consumers, this tracking quality is a significant part of the value of music. The music industry is delivering the goods when its product performs this tracking function, and otherwise not. The Internet helps music perform tracking functions of this kind.

The bottom line: The welfare economics of music do not resemble those of bread or buttons.  Right now we do not even know whether music is being oversupplied or undersupplied, relative to an optimum.  Beware of any analysis of this case which does not consider these deeper underlying issues.