What Is the RIAA Thinking?

A fantasy: Cmdr. Bainwol snakes through the maze of agents poring over the shabby apartment that, until a few hours ago, had served as a terrorist safe house. Ducking into a hallway closet, he whips off his gas mask, finally away from the smoke. His satellite phone vibrates.

"They started firing as soon we hit the buzzer," he says. "We lost three guys: two FBI, one RIAA. They got away. But our intelligence was dead on. We nabbed a couple dozen mix CDs and some mash-ups. It looks as though a lot of stuff on the discs was illegally downloaded. We slipped the bodies out well before the fire engines got here. First responders don't move all that fast in Sioux Falls."

Sound far-fetched? Of course it is. No one has equated casual violation of intellectual property laws with terrorism since former Attorney General John Ashcroft stepped down. Nor has Mitch Bainwol, the chairman and CEO of the Recording Industry Association of America—a trade organization representing the nation's major recording labels and their subsidiaries—ever participated in an armed raid. But ever since Bainwol replaced Hilary Rosen, in 2002, the RIAA has been awfully cozy with the feds, and far more active in attempting to plug the myriad ruptures plaguing the music industry's revenue pipeline.

Certainly, some of the association's beefs are valid, particularly where "piracy"—the out-and-out counterfeiting of copyrighted discs—is concerned. But while its reach is long and its arms muscular, the organization often displays the reasoning powers of a 4-year-old. An RIAA-prompted NYPD raid on Manhattan retail outlet Mondo Kim's—a well-known spot for hip-hop DJ mixtapes—this past June yielded hundreds of allegedly illegal discs (many featuring exclusive tracks by the artists whose rights were being "protected" by the RIAA and the feds), five arrests (all record-store clerks, two recording artists in their own right), and loads of bad publicity, largely thanks to flagrant industry ambivalence toward a vector that often serves as a potent promotional tool. (Kelefa Sanneh's "Mixtape Crackdown Sends a Mixed Message," in the June 16 New York Times, contains a dead-on analysis.)

Recent association efforts seem even less well-advised. Last month, under RIAA pressure, Mashuptown.com took all its files offline. Sillier still, a Dec. 1 entry in his online journal found David Byrne reporting that he'd received a warning from the association after featuring an all–Missy Elliot segment on his streaming radio station, prompting recording artist, music writer, and blogger (lastplanetojakarta.com) John Darnielle of the Mountain Goats to ask the industry, "Didn't it occur to you . . . that streaming audio is the cuddly fuzzy harmless grey-and-white kitten of online music distribution? Didn't anybody ask whether wagging the finger at a well-loved singer and songwriter, one whose longtime boosterism of music he loves has done our industry much good over the years, might not be, how to put this gently, totally moronic? What, exactly, is your overall goal?"

The RIAA isn't alone in its quixotic quest. Mash-up artist Dean Gray received a cease and desist order from Green Day's label, Warner Bros., on Nov. 20, two days after the Internet-only release of American Edit, a collection of mash-ups utilizing songs from American Idiot. Taking a more direct route, the Grateful Dead—longtime advocates of "unauthorized" live recordings of the band and their noncommercial distribution— recently asked fans to pull concert files from Archive.com, citing their own newly launched download-for-pay service.

After a storm of protest, the Dead relented in part, allowing some files to go back up—not a bad compromise, given that fans still have the option of exchanging CDs minus interference, just as they traded tapes during the band's heyday. The RIAA should be so judicious. As matters stand, the organization seems to be looking back fondly on the days when home taping was supposed to have been killing music.

Goodness knows the industry's situation isn't getting any better as its business model threatens to fall over the edge of the future, legitimacy notwithstanding. According to a Nov. 24 Guardian article, iTunes has already overtaken Tower and Borders in sales. What's to prevent the Britneys and P. Diddys of 2020 from eliminating the middleperson altogether, dealing directly with digital distributors and contracting with boutique outfits to manufacture deluxe, limited-edition CDs and vinyl for the inevitable hard copy diehard market?

Even more pressing problems loom for the RIAA, especially regarding the 14,800 lawsuits filed by the organization against alleged illegal downloaders. After successfully settling out of court with hundreds of victims, er, defendants—many of whom protested their innocence while balking at potentially astronomical court costs—the association is finally getting its day in court, thanks to Patricia Santangelo, a divorced mother of five living in Wappingers Falls, N.Y., accused of downloading six songs. Given that the presiding judge has already rebuked the RIAA's attorney for attempting a final round of flagrant, last-minute intimidation, Santangelo's prospects are good, thanks to her all-too-believable contention that a friend of one of her children downloaded the offending tracks. Hello, PR disaster.

On top of that, the association's clout in scandal-ridden Washington might very well wane, as Mr. Bainwol's Republican-insider status turns from asset to liability. It's conceivable that he might end up on the witness stand at some point, given widespread allegations of illegal activity on the part of the National Republican Senatorial Committee prior to the 2002 elections. Just before joining the RIAA, he served as executive director of the NRSC, directly below Sen. Bill Frist, R-Tenn. Sen. Frist, needless to say, currently has problems of his own.


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