September marks the 20th anniversary of the RIAA launching litigation against consumers in a bid to extinguish — or at least dampen — the flames of peer-to-peer (P2P) file sharing. The consumer litigation was part of a multi-pronged effort that targeted internet service providers, the P2P providers like Napster and Limewire and music fans. In early 2003, nearly 40% of internet users in the United States had used a P2P service to download music, or an estimated 54 million individuals. Upon the RIAA’s announcement of consumer suits, parents began asking their children what they were doing with those stacks of blank CDs; coverage of the pending litigation stifled file sharing before the first notice was filed.
Much has been written about the P2P era, but one thing is for sure: The vast majority of downloaders knew it was illegal. If there was any uncertainty in consumer’s minds, the RIAA litigation helped to clear it up. Perhaps that is the greatest legacy of the consumer litigation, which ended in 2008. The actual law was contested for some time, with arguments about technological innovation and the promotion of that technology for purposes of copyright infringement.
By the 10th anniversary of the consumer litigation in 2013, the record labels had largely won the battle against P2P file sharing. After settlement of the Limewire copyright infringement case in May 2011, the number of people using the remaining services rapidly fell in the United States, and by 2013 had dropped 60% from the peak in 2003. Litigation was one of many contributing factors. The P2P file sharing experience was awful for users, fraught with spoofed files, pop-ups, malware, incomplete and incorrect files, and other maladies. iTunes downloads revived the singles era by offering $.99 tracks. Pandora had been at the top of app store charts for several years, and Spotify was gaining momentum. By 2013, half the U.S. internet using population was streaming, and a handful were beginning to pay for subscriptions. The RIAA moved on to other battles, notably the YouTube “Value Gap.”
As the 20th anniversary of the consumer suits approaches, there has been a stunning reversal in progress in the war to limit consumer access to unlicensed music. An estimated 55 million people in the U.S. acquired or accessed “free” music files in the past year, according to MusicWatch research — the same amount as in 2003. What went wrong? There is an abundance of apps and sites that permit consumers to obtain unlicensed music. Apps that permit YouTube stream-ripping are widely available. Mobile apps available with “free downloads” frequently contain unlicensed content. The very social platforms that the industry relies on to promote artists also harbor unlicensed content. Unlike in the P2P era, the law is clear when it comes to these forms of copyright infringement and licensing requirements, though the DMCA still provides a shield to services that rely on content uploaded by fans.
The problem is the consumer. The teenager who knew that they were committing piracy while downloading In Utero from Limewire is now an adult. Today, they can be easily confused. Their Google music searches may include content that infringes on copyright. Same for the app store on their phone. The recent spate of Taylor Swift Eras tour livestreams on TikTok, while technically the same as a stream-rip of “Cruel Summer,” does not register the same in fans eyes. On top of the unlicensed content, MusicWatch studies indicate 20 million streamers are sharing logins to music streaming services.
The industry has not been silent. The RIAA has litigated against stream-rippers. Mixtape app Spinrilla was successfully sued for infringement and shut down in May. Sony and Universal just sued the Internet Archive for copyright infringement. And as an alternative, streaming companies offer family plans, which raise ARPU and blunt the impact of unauthorized account sharing.
Unlike 2003, however, the industry isn’t paying much attention to the infringing consumer. And why should it? There hasn’t been a collapse in revenues as was experienced during the aughts. Most infringing consumers are active streamers and many pay for a subscription — and a vinyl record or two. There’s not much reason to target music fans. But that doesn’t mean that more shouldn’t be done to educate consumers and further protect the rights of artists and copyright holders.
Russ Crupnick is the principal at market research firm MusicWatch.