An Interesting Read

The explosion of digital media is creating a bunch of interesting debates, but they all boil down to one thing eventually – content versus access. Now the Recording Industry (content) is suing XM satellite radio (access) over their new Inno device.

Despite the fact that recording from the radio has always been considered fair use, the music industry believes that the quality of satellite radio makes it a “free iTunes” of sorts.

It really is an interesting debate. The fact that the device records at a higher quality than cassette tapes ever did, and in a format that can be transported easier than cassette to cassette recording makes the difference to the recording industry.

In the age of digital media, it creates a battle between those who feel they have a right to make money for delivering content and helping the artists reach more people, and those who feel the delivery should be automatic and free. It’s at the heart of this debate and the crux of the whole net neutrality issue.

The XM/RIAA suit also raises an issue I’m fascinated by. For some reason, when elements of the real world become digital (music, movies, trespassing, etc) we consider them to somehow be fundamentally different (and often much more sinister).

I’ve railed for years against laws that treat defacement of a building with spray paint on a completely different (and much lower) plane than defacement of a web site. Both are simple acts of vandalism (and perhaps simple B&E) but the web crime is prosecuted more forcefully, with longer sentences and harsher fines. Spray paint an overpass and you’re a nuisance. Replace the Seti At Home web page with a picture of Alf and you’re prosecuted to the fullest extent of the law.

When was the last time a kid with a spray can was jailed for over a year, on probation for three and charged $88,000 for damages?

Similarly, we look the other way if a kid takes a cassette tape and records a song off the radio. We know that kid has the ability to make tape-to-tape copies and redistribute them, but that’s fine. Make the copying and redistribution a bit easier, and even though it’s the exact same thing, suddenly it needs to be enforced with the iron hand of the law.

Mitch Bainwol of the RIAA and I are close to the same age. I’ve bumped into him a few times during my years in politics and he’s a nice guy. Given we both grew up in the age of the cassette tape, and probably recorded more than a few tunes off the radio, I wonder how he can make the arguments he does with a straight face.

There is no difference between recording a song off the satellite radio with a digital device and recording a song off the radio with a cassette tape. Only the technology has changed, and that should not fundamentally alter the way we view the law.

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