Ernie Miller condemns the RIAA’s newest campaign — to stamp out “casual piracy” as the work of “short-sighted morons.” Ernie is too kind; short-sighted morons don’t understand the implications of what they’re doing. The RIAA certainly knows what it’s doing: It wants to put people in jail. The rhetoric of “casual piracy” is like the rhetoric of “casual sex.” The evocative language can’t be accidental; the former is like the latter. The rhetoric starts with: Don’t have fun without taking appropriate precautions. Pretty quickly, the rhetoric ends with: Sex = death. That conclusion is wrong on its own terms, and if you agree, and if you follow the analogy, then going after “casual piracy” doesn’t make the RIAA “short-sighted.” It makes the RIAA ignorant to the point of venality. It becomes the Copyright Inquisition.
Fortunately, few of us are Copyright Catholics, metaphorically speaking. Sure, one way to think through the implications of this news is to conclude that the RIAA’s tactics will be revealed to the masses as illegitimate: We Can’t All Be Criminals. But that hasn’t happened yet, and I don’t know that it will any time soon, if ever. In the info-sphere, most people have info-spiritual choices.
So here’s a different way to think about it: What’s the character of the demand curve for popular music in various forms and formats? Crudely speaking, the world breaks down into three groups: First, there is a population of consumers whose demand for music is inelastic as to format and content, and which will insist on unencumbered CDs and their equivalents. DRM formats will be hacked; new DRM formats will be introduced; those formats will be hacked, too. This is God’s work, metaphorically speaking, trying to save the Church of Copyright from the self-righteous humans who have a stranglehold on it. Second, there is a population of consumers who won’t notice DRM much, or who won’t care if they do notice, or are happy to accept DRM in some or all forms at an appropriate price. Their demand is highly elastic as to format and somewhat elastic as to price, but like the first group, inelastic as to content. The RIAA is counting on this population being the largest group of consumers: compliant, worshipful members of the copyright congregation. (If this does turn out to be the largest group, that doesn’t make DRM good or right in all cases, but it does suggest to me that in some dose, we can live with it.) There is a third group, for whom demand is very elastic, particularly as to content. Personally, I’m in this third group (call me a Copyright Unitarian): I’m not so angry at the RIAA, despite its witlessness. In a backhanded way, I’m grateful to it, because the RIAA makes me want to read. I buy fewer than a half-dozen CDs a year; I don’t own an mp3 player; I don’t subscribe to a satellite anything. But I’m reading far more books these days — dead tree books, old books and new books — than I have in years. A lot of people in this third group won’t turn to books, but they’ll turn to other things, and they’ll be neither copyright criminals nor music consumers.
We know, of course, that this is an oversimplification; among other things, the shape of the demand curve is affected by the character of legal entitlements themselves. But set at least part of that aside; there is a sizable demand for cultural products that is exogenous to copyright law. My metaphorical conclusion is that if the third group turns out to be larger than the second — if more people leave the Church of Copyright than try to live within it, or reform it — then someday, perhaps, the RIAA will change the sermon. The practical conclusion is that the success or failure of the RIAA’s tactics will depend on whether consumers care enough about the music to put up with them. I may be alone, but I don’t.