Downloading Some Bullshit

INTERVIEW BY ROCCO CASTORO

PHOTOS BY BRAYDEN OLSON AND COURTESY OF THE RIAA

SPECIAL THANKS TO BEETHOVEN PIANOS

Many, many people believe that the Recording Industry Association of America is a giant hairy tumor on the neck of the music business. Many people further feel that this disgusting malignancy has slowly spread its cancerous wrath across the public domain in recent years. Over the past decade, the RIAA has sued the following individuals for allegedly using illegal means to download music: a 66-year-old grandmother from Boston who was accused of nabbing thousands of rap songs even though her computer wasn’t capable of running the software she was supposedly using, a 12-year-old honors student in NYC who lived with her family in public housing, a 79-year-old man who did not own a computer or know how to use one and was charged with sharing more than 700 tracks from bands like Linkin Park and Creed, an 83-year-old

dead

great-grandmother, and a homeless man living in a shelter. There have been many other unlikely defendants, but those are some of our favorites.

The RIAA’s early history, however, contradicts its current reputation. In 1952, the organization was founded with the primary mission of setting an equalization-curve standard for gramophone records. Prior to the RIAA’s formation, each record company used its own equalization. Many labels used different frequencies for playback, resulting in records that would only work on certain players. The RIAA fixed all of that and effectively increased record sales by unifying the recording process. It was a great thing.

In 1958, the RIAA did musicians another appreciable service by establishing a certification-and-rewards program that kept track of how many copies of an album were sold. This process evolved into today’s silver, gold, platinum, and diamond designations, which are awarded to albums that sell anywhere from 100,000 to 10 million copies. It has helped popularize classic, timeless records that every generation should hear and spawned numerous other systems that allow artists to track their sales.

It wasn’t until about a decade ago that music technology, the very thing the RIAA was created to standardize, became too powerful for them to control. Two landmark court cases—

A&M Records, Inc. v. Napster, Inc.

and

MGM Studios, Inc. v. Grokster, Ltd

.—sparked a series of events that changed the music industry forever. The Grokster trial reached the Supreme Court, where 28 of the world’s largest entertainment entities (unified by the RIAA and its motion-picture-industry counterpart, the MPAA) tried to end the file-sharing debate forever. In the end, the courts ruled that Grokster and its contemporaries could be sued for illegal file trading that took place on their networks, but this left the RIAA holding a flaming bag of dog shit. Forcing peer-to-peer software companies to police their own user base simply wasn’t going to happen, so they began an aggressive prosecution spree that resulted in possibly the worst self-inflicted public-relations disaster in the US up until a few months back, when BP single-handedly (OK, maybe with a little help from the government) turned the Gulf of Mexico into the world’s largest mud-wrestling pit.

Cary Sherman is the president of the RIAA’s board of directors and has worked there for 13 years. He went to Harvard Law School, plays the piano, and, most important, claims to be a true music lover. Due to the RIAA’s less-than-popular method of protecting their coffers (i.e., lots of lawsuits), Mr. Sherman is often seen as the face man for an oppressive totalitarian behemoth that can potentially throw you in the slammer and/or fine you into a horrid existence for illegally downloading shining examples of popular culture like “California Gurls” by Katy Perry featuring Snoop Dogg (#1 on the Billboard Hot 100 at press time). Thankfully, however, the lawsuits are not happening anymore.

In late 2008, the RIAA switched tactics (some might say as a result of public pressure). Instead of pursuing individuals who illegally download music, they charged internet service providers with the responsibility of monitoring and warning their customers about pirating music and other content via a three-strikes-and-you’re-out system. Less than a month after the RIAA claimed to have implemented the new arrangement, several prominent ISPs balked and said they would follow their own internal policies for monitoring. It’s no wonder that the RIAA seems to have been keeping a low profile as of late, so it was a very pleasant surprise when Mr. Sherman agreed to this interview. He even answered all of my questions without hesitation, which I have to admit was extremely unexpected. Is he a horrible monster who wants to sue teenagers for downloading albums with explicit lyrics that their parents won’t let them buy in stores? Nah. Is he simply a functionary who is far out of touch with the way music (especially the independent variety) is listened to, recommended, distributed, and created in the 21st century? Or is he just doing his job, acting on what he truly believes is right for musicians? We’ll let you make the call.

Vice: Let’s begin with something semi-current that I can’t quite wrap my head around: HR 848, the Performance Rights Act that was introduced in February 2009 and is still before Congress. I understand that its goal is to eliminate the disparity between royalty payments across formats, but does FM radio really pay less for broadcasting music than the internet and satellite varieties? That seems backward.

Cary Sherman:

It aims to get terrestrial radio stations to pay royalties. Right now they have an exemption. We get paid royalties by satellite, cable news services, and webcasters. We even get paid when radio stations simulcast on the web, but we don’t get paid when they simply broadcast over the air. Since they’re the most well-established business, it’s certainly an anomaly that all the start-ups are paying while the big gorilla pays nothing at all.

What I found really interesting about the bill was that people like Jesse Jackson were in opposition to it, claiming that it would hurt minority radio stations. What do you think about that?

That was a very clever tactic used by the broadcasters to basically say that this was a minority-radio issue. It sort of went away when the NAACP started calling this the Civil Rights for Musicians Act. They thought that slavery had been outlawed, but somehow musicians still had to work without pay when it came to radio. If they’re big enough and have enough revenues to pay the full scale of royalties, they ought to pay like anybody else.

The alternative to all of this radio nonsense is consumer media devices and storage. It’s ironic because while I’m sure that the iPod and iTunes have made the RIAA lots of money, they are also the preferred method to listen to pirated music. Would you say these inventions have made your life easier or more difficult?

It’s certainly made it more interesting, but what has always been so amazing about this job is that you never know how the marketplace is going to evolve and throw new, unanticipated angles into the issues. It’s the terabyte storage devices that I really have to worry about. At the same time as these developments in mass storage technology, the marketplace is shifting to streaming and cloud computing. Everybody wants to have access wherever and whenever they want on whatever device they happen to be using.

I assume you have an iPod.

Many.

What’s your preferred method for listening to music?

At home I have a Sonos system, which has been phenomenal because I have all my music on one device that I can play in each room of the house or

every

room of the house at the same time. Whatever you’re in the mood for, it’s there, and that’s even before you’re on Pandora or an internet station. When I travel I tend to take an iPod with me but I also listen to music on my iPhone, which has phenomenal fidelity. You put on a pair of Bose noise-canceling headphones and it’s a great way to travel.

Do you recall the first moment you heard about peer-to-peer software or saw one of these programs in action? Did your heart sink?

I can’t say I remember the specific moment. The truth is that you have to put this in context: This was 1999, and I was meeting with digital music startups on a regular basis. Companies were coming in from all around just to introduce themselves and tell us the solutions they had for the music industry in terms of dealing with piracy, new business models, new technologies that were going to make it really wonderful to listen to music, interoperability, and DRMs.

DRM meaning “digital rights management.”

We had a lot of DRM stuff. When Napster came along, it was just one more interesting thing. I remember I created a subfolder—I didn’t even bother with a complete folder—for emails regarding Napster because I just thought it deserved a subfolder. It was only afterward that I realized how this thing was going to grow. It just wasn’t as obvious because there were so many things going on, and then everything suddenly became Napster.

How does the RIAA calculate potential profit loss from illegal downloads?

We don’t.

You don’t at all?

We never do. The problem with doing that is we have no ability to measure what’s going on with the internet; we have to rely on third parties. It’s very difficult to do it under any circumstances. We don’t have the expertise—we don’t surf the web ourselves for that kind of stuff. The other thing is that it’s very difficult to calculate the displacing effect of illegal downloading.

Oh, I would imagine.

We basically decided early on that everybody knew that illegal downloading was having an extraordinarily negative impact on the industry, on the ability of musicians to sell their products and therefore make money from their recordings as opposed to touring, etc. We’d let third parties speak to the scope of the damage, but it didn’t matter whether they were debating if it was $5 billion or $20 billion. Either way, it was going to be a massive number and we had to deal with it. We haven’t really gotten hung up on trying to quantify the impact.

Do you think the court cases may have brought even more attention to file-sharing software and widened its user base? Is that a crazy notion?

No, it’s not crazy, and we think about that all the time. When something new comes along that could be an issue, we often think about whether we’re going to give them more attention than the marketplace would. With Napster it was not even close—the speed with which it grew and the viral nature of its influence—we didn’t need to sue them in order to give them prominence. They were making it all on their own, so that was never an issue.

It was the first of its kind, but things have evolved. Does the decentralized nature of something like BitTorrent worry you?

Well, it’s different, but no less susceptible to tracking people. The motion-picture studios are mainly dealing with BitTorrent. Just like we do, they are able to identify infringements online relatively easily in a very public kind of way and arrange for notices to be sent.

Some might say that the difference is that a site like OiNK [a legendary BitTorrent site shut down in 2007 by the UK’s equivalent of the RIAA] was a much better source for music than iTunes or similar services. Many so-called illegal BitTorrent music-trading sites contain things that will never, ever be available for sale to the casual listener. They primarily cater to completists who previously had to spend years hunting for obscure records. Of course, you’ve got a bunch of people downloading the album of the minute too, but the development of MP3s and peer-to-peer software has perpetually increased the amount of people who listen to music and how much time they spend listening to it. Do you think there will ever be a “legal” program where a user can download every single bootleg from a band of their choosing? I know a lot of people who would pay for that.

I don’t know how much you know about the industry, but it’s very complicated. It’s got a lot of different rights-holders. You have songwriters and publishers, who have a completely different set of rights than the record company and the artists, and everyone would have to agree on a new business model. It took some time to get to the point we’re at now, where 8 million tracks are available individually for download in extraordinarily high quality and in a variety of bitrates and so on. People really can get almost anything they want legally. Are there going to be exceptions like bootlegs and so forth? Yeah, but my job is to worry about the big picture—if the industry is moving in the direction of satisfying the consumer demand for music. There’s no question that the demand for music is bigger than it ever has been before. I just looked at some data the other day, and in the US something like 43 percent of our revenues are digital. Forty-three percent!

A few years ago the RIAA switched tactics. Instead of high-profile prosecutions of people who pirated music, you decided to put the onus on the ISPs. How successful was that transition?

The time had come to shift over to a strategy that would be more effective. The lawsuits were obviously controversial in the media, but the reality was that most people had no idea that what they were doing was illegal at the time of those lawsuits. We did all sorts of surveys. We tried PR firms. We did everything to look at how to begin to change the culture of using illegal P2P. We realized that 1) none of the messages resonated, and 2) most people had no idea that what they were doing was illegal, let alone thought it was wrong. That completely flipped overnight when we started the lawsuits. It made an enormous impression and we were constantly generating dinner conversations about what you may or may not do with your computer. We think it would be very good if there were more such conversations about all the other things that can be done inappropriately with a computer. So we think it had a tremendous impact by very clearly searing in the minds of the public that maybe getting all of this stuff for free isn’t legal after all.

But mainstream public opinion quickly shifted against the record labels and high-profile artists themselves, correct? You had people like Lars Ulrich acting like he wouldn’t be able to afford Zildjians anymore.

After a while, people began to think that the individuals being sued were X and the free music was Y. We needed to move to a strategy that would have greater breadth and that would give people an opportunity to be educated and warned, one where there would be consequences only if they persisted in their illegal behavior. And for that we needed to enlist the ISPs who had previously looked at themselves like, “Hey, we’re just pipes. We have nothing to do with the conflict exploding. That’s your problem.” Then peer-to-peer began to occupy a tremendous percentage of their bandwidth, interfering with their own customers’ ability to get reliable internet service. One big downloader could interfere with email for all the suburban moms in the same neighborhood. We’ve been in talks with ISPs for a while, trying to develop a program that everybody’s comfortable with—one that is very fair and balanced and that is clearly educational. The ISPs are sending notices to their subscribers telling them that what they’re doing is illegal, that they’re not anonymous when they do it, and that they run a risk when they do it. That has been very successful in terms of expanding the reach of the program, and we hope that it will continue to produce a cultural shift in attitudes of illegal file sharing.

Would it be fair to say that the RIAA’s actions of the past ten years resulted in a PR nightmare of truly immense proportions?

When we went into this thing, we knew that it was not going to be popular. We were looking for it to be dramatic. We didn’t want to seem vindictive. We wanted to look reasonable. We also wanted to be strong and determined to protect the property rights of creators. As unpopular as that was going to be, we were prepared to take it on.

I’ve heard that people working for the RIAA have received death threats. Is that true?

We were astounded at the entitlement that people felt to get their music for free. People really were crazy in terms of “You want to interfere with my ability to get whatever I want on the internet? If it’s on the internet, it’s free. You have no right to be interfering.” And yeah, there were death threats. There were cyber-attacks and so on, but the truth is all of that is in the distant past. Now the internet has become a little more civilized. I think that people gradually became more aware that maybe there is no such thing as a free lunch. People really do want artists to get paid; they’re just hoping someone else will pay them. It wasn’t just music anymore that was being affected—newspapers were beginning to go out of business, movies studios were suffering from sales of DVDs, books were getting pirated. Suddenly it wasn’t just this one industry that didn’t know how to adjust. It was a sea change in terms of distribution for creative industries, and everyone wanted to survive it.

OK, I have just a few short, more personal questions I wanted to ask. I’ve read that you are a musician yourself. Is that true?

Yes, amateur. I play piano.

When you were younger did you ever have dreams of becoming a professional musician?

Yeah, but I realized quickly that I would be a bar mitzvah performer—that was the highest level that I could reasonably expect to aspire to. I figured I better become a lawyer.

I bet your parents were happy about that. Who are some of your favorite musicians and bands?

I have a pretty wide variety of tastes because I have a big iPod. I like Howie Day, Jack Johnson, Melissa Manchester, U2. I just heard Billy Joel the other night and remembered how much I love him and Elton John. I was also listening to Owl City; you’re not going to be able to pigeonhole me with anything.

One final question: Do you currently or have you ever received free music while an employee of the RIAA?

I used to get free CDs, but no longer. I buy all my music now. I do.