Jesse Jordan, a freshman at Rensselaer Polytechnic Institute in Troy, N.Y., got the idea for his new search engine in 2003. It would be a useful and harmless way for his fellow students to search each others' files in the “public file” section of the school's internal computer system.
But after some searches turned up copyrighted music files that students had stowed on the system, the Recording Industry Association of America (RIAA) — the music-industry trade group — sued Jordan for music piracy, demanding millions of dollars in damages. Ultimately, Jordan — who said his program wasn't intended for sharing music — paid $12,000 to settle the suit, without admitting wrongdoing.
Jordan wasn't alone. In the early 2000s, RIAA filed or threatened dozens of lawsuits against college students around the country. The campaign was needed, said RIAA General Counsel Steven Marks, because “the enormous damage compounded with every illegal download is alarming — thousands of regular, working class musicians … out of work, stores shuttered, new bands never signed.”
But there was more to the lawsuit blitz than simply an effort to scare pirating students straight, says Kevin J. Greene, a professor at Thomas Jefferson School of Law, in San Diego. Among the schools where lawsuits were threatened were many that produce highly skilled technology majors, including Rensselaer, the Massachusetts Institute of Technology (MIT) and Carnegie Mellon University, in Pittsburgh. “That was not by chance,” says Greene. RIAA officials “were trying to send a message to these high-tech kids” to back off from inventing new technology that would make it easier to copy and share music.
Attempts to slow the commercial impact of new communications technology have a long history.
In the 1930s, AT&T banned one of its engineers, Clarence Hickman of the telephone giant's famous research facility, Bell Labs, from continuing to work on an answering machine he'd invented that used magnetic tape to record messages. Worried that having conversations recorded would “lead the public to abandon the telephone,” AT&T shut down Bell research on magnetic tape — the eventual source of audiocassettes, videocassettes and the first computer-storage systems. Eventually, “magnetic tape would come to America via imports of foreign technology, mainly German,” wrote Tim Wu, a professor at Columbia Law School who specializes in technology issues.
Also in the 1930s, the young broadcast industry — at the time limited to AM radio — stymied the emergence of FM radio. David Sarnoff, president of RCA, a radio manufacturer and broadcast company, assigned noted inventor Edwin Armstrong of Columbia University to devise a way to eliminate the static that plagued AM broadcasts. Armstrong went one better, inventing an entirely new form of transmission that reduced broadcast noise and made high-fidelity music broadcasts possible. It did so by modulating radio waves' frequency, rather than their amplitude. It was called FM (frequency modulation) radio.
Because FM radio also operates at a much lower power, Armstrong's invention opened the way for more small broadcasters to get into the game. “You might think that the possibility of more radio stations with less interference would be generally recognized as an unalloyed good,” wrote Wu. But, he added, “by this point the radio industry … had invested heavily in the status quo of fewer stations,” which pleased advertisers by reaching many listeners with one ad buy.
To preserve their business model, industry leaders convinced federal regulators that FM transmission was not ready for prime time, and for six years the government banned its commercial use and limited its experimental use to one narrow band of frequencies. “There was no way for an FM station even to get started without breaking the law,” Wu wrote.
In the 21st century, the RIAA successfully fought for new music-licensing rules to hamper expansion of so-called “Internet radio,” wrote Harvard Law School Professor Lawrence Lessig. Internet technology allows a virtually unlimited number of “Internet radio stations” to “broadcast,” potentially allowing a much wider range of musicians to find a worldwide audience.
But what technology does not limit, laws can, according to Lessig. The RIAA fought to expand copyright law to require Internet stations to pay licensing fees to both composers and the recording artists who perform their songs. Ordinary broadcast-radio stations pay composers only. (In an earlier amendment to the law, Congress had reasoned that radio play acts as advertising for singers and bands, so payment isn't needed.)
The financial burden Internet stations face from the rule “is not slight,” Lessig wrote. By one estimate, an Internet station delivering “ad-free popular music to ten thousand listeners, twenty-four hours a day,” would owe $1 million a year in recording-artists' fees, while a traditional station doing the same thing would not, he argued.
It's not surprising that existing businesses fight technological change, Lessig wrote. But, he added, the resistance comes with a cost: “It gives dinosaurs a veto over the future.”
— Marcia Clemmitt