The Digital Music Wars: How Fans, Not Pirates, Shape the Future

In 2003, the US recording industry launched an unprecedented legal offensive against its own customers. The Recording Industry Association of America (RIAA) sued people suspected of sharing copyrighted music online, hoping to stamp out what many called a “culture of piracy.” By March 2004, nearly two thousand lawsuits had been filed. Thousands of music fans now faced legal fees, potential court appearances, and settlements that could run into thousands of dollars.

The RIAA's strategy was simple: make the public see file-sharing as shoplifting. But is that fair? And what exactly is this “culture of piracy”? To understand the conflict, we need to look beyond legal threats and examine how fans actually use music.

Music sits at the center of a much larger struggle. The way we settle online sharing will affect not just the recording industry but also publishing, film, and television. We face a tug-of-war between free exchange of ideas (a core value of civil society) and the demands of an information economy, where creative works are valuable commodities. The recording industry is right to say the problem is cultural, and the consequences are economic. But surprisingly little analysis has gone into understanding what fans are actually doing and why.

Two main approaches guide the industry's thinking about the digital future. Digital rights management (DRM) aims to strengthen property protections—through teaching that downloading is stealing, developing new technologies to control access, and pursuing lawsuits. This is the dominant approach in the US. But it has significant downsides (Lessig, 2004), and may not work even if successful.

Alternative compensation systems (ACS) offer a different philosophy. Proponents accept that sharing is here to stay. They want to find new ways to support artists and labels—taxing hard drives, blank CDs, or broadband connections, for example. Distribution remains a challenge, but companies already track peer-to-peer traffic. ACS proposals seem more promising than DRM for sustaining a vibrant music culture (Lessig, 2004; Litman, 2001; Vaidhyanathan, 2001). Yet they could benefit from understanding the very people who might drive political change: the fans.

This article takes a close look at the “culture of piracy” by studying the practices and attitudes of file-sharers ethnographically. Note that I use “file-sharing” and “piracy” interchangeably—not to judge them as good or bad. The point is that value depends on perspective. I focus on non-commercial sharing: exchanging music without money changing hands. Bootleg street sales are a separate issue.

New rules for a digital world

Let's start with file-sharing in the US to unpack the idea that people just want something for free. A peer-to-peer view of popularity shows that the line between piracy, promotion, and legitimate sharing is very blurry. Pure technology won't solve this problem, either.

Then we look at Japan, the world's second-largest music market. What does a cross-national comparison tell us about culture, technology, law, and business? My interest in copyright grew from research on hip-hop in Japan (Condry, 2001), where sampling clearance has followed a different path than in the US. Six short research trips since 1999 let me talk with Japanese musicians, executives, and fans.

Japan demonstrates that the “culture of piracy” isn't limited to peer-to-peer software. In the US, the debate centers on programs like Napster, Kazaa, Bit Torrent, and Freenet. But as of early 2004, Japan had largely avoided an online file-sharing epidemic—yet sales fell even more steeply than in the US. Japan uses the law differently, too. By early 2004, while hundreds faced lawsuits in Europe (Lander, 2004), Japan had made only three prosecutions. Some business leaders there focus instead on how fan attitudes intersect with promotion strategies. Japanese manga (comics) and anime (animation) may have actually thrived because of tolerance toward copyright infringement.

I bring classroom experiences back into the picture. Since Napster started in 1999, I've taught courses on MP3, peer-to-peer networks, and the music industry in two US colleges. Students' essays survey attitudes, and classroom discussions serve as a kind of fieldwork.

One critical observation: the key cultural differences aren't about national character. American and Japanese fans share many attitudes, but the responses from the business worlds in each country are strikingly different. This aligns with an emerging approach in anthropology—moving away from fieldwork rooted in geographical places toward attention to “epistemological and political issues of location” (Gupta and Ferguson, 1997: 39).

“Ethnography's great strength has always been the explicit and well-developed sense of location, of being set here-and-not-elsewhere. This strength becomes a liability when notions of ‘here’ and ‘elsewhere’ are assumed to be features of geography, rather than sites constructed in fields of unequal power relations.” (Gupta and Ferguson, 1997: 35)

This focus on location, not locale, lets us examine how people are positioned across social, business, and technological networks—essential for understanding the file-sharing conflict.

When sharing creates value

The common narrative says digital technology will destroy record companies. Wired magazine's February 2003 cover shows a blimp going down in flames and reads “Rip. Mix. Burn: The Fall of the Music Industry.” Three years of declining US sales and five in Japan suggest big problems. Executives often blame piracy, but some admit other factors are at play. The logic seems unarguable: if music is free, nobody will pay. But is that really true?

First, few musicians create just to make money. China's six-millennium-old crane-bone flutes remind us that the drive to make music didn't start with business models. Music has been shared, commodified, and supported through many systems—patronage, live performance, folk transmission—and still developed remarkable traditions around the world. Artists should be paid for recorded music, but reducing support to “protect digital content” is misleading.

Even now, lots of music is free and people still buy it. Buying bottled water is a parallel: free alternatives exist, yet markets persist people want the convenience or value of buying. The idea that inconvenience or legal threats will drive consumers toward legitimate services ignores the more basic question: Why do people want music?

Let's imagine college life. In a dorm, sharing music isn't a matter of rule-breaking. Would anyone say “No, I think we need to protect copyrights”? The reply would be just one word: “Loser.” Music—unlike underwear or swimsuits—is something you're expected to share with friends and family.

There's also pleasure in turning someone on to new music. That social bond leads to conversation, discovery, and emotional connection. Wanting a recommended album is partly about exploring the relationship, not just the music itself.

Two objections arise. First, sharing a CD with a friend is one thing—why share with millions? Second, maybe we need a new digital ethics to prevent the destruction of the industry.

The answer to the first objection: file-sharers are acting like classic consumers—getting as much as possible for as little as possible. What looks like “dot-communism” (Sullivan, 2000) is actually pro-consumption. Peer-to-peer networks thrive on demand-side economies, not supply side; the more sharing grows, the more valuable the network becomes (Shapiro and Varian, 1998).

“Think locally, act globally” describes a shared music library more comprehensive and affordable than any legitimate service ever offered. This convergence, drawn from analyses of millennial capitalism (Comaroff and Comaroff, 2000; Miller, 1995) and fan culture studies, shows that we value media in ways not captured at the cash register. The official charts don't tell the whole story.

As for destroying the business, that might not happen. In an empirical study of peer-to-peer downloads and sales from 2002, Felix Oberholzer and Koleman Strumpf found a relationship that was “indistinguishable from zero” (2004: 3). Even pessimistic estimates showed it would take 5000 downloads to affect one sale. In 2002, CD sales fell 8.9% to 803 million units; revenues dropped 6.7%. But the number of new releases fell 20% (from 1999 to 2001), prices rose 7.2%, and an estimated 2.1 billion CDs were downloaded for free—compared to the 803 million sold (Lessig, 2004: 70-71). Someone can repeat today. Today shared copies are “non-rivalrous”—after downloading one album, the original still sits on someone's hard drive and remains available in record stores. The consequences are murkier than industry claims suggest.

What Japan teaches us about markets, lawsuits, and fans

Japan's experience offers a very different angle on these issues. Japanese record companies share American ones—large conglomerates own the rights to roughly 80% of the market by some measures. But the scale of online sharing in Japan is much lower for three key reasons: slow internet connections that make downloading impractical (<1% of users had broadband in 2001, although that changed quickly); aggressive lawsuit actions against file-sharing software operators if actual users typically aren't targeted in Japan the way Americans)

No one is certain, though trends to date make it seem unlikely. The U.S. recording industry spent years on the Secure Digital Music Initiative, hoping to find an effective way to lock up digital music, but when the format was released, fundamental weaknesses emerged within weeks. In a paper by Biddle et al. (2000), four Microsoft employees (not speaking for the company) explain why technology alone likely cannot provide a magic bullet against online file-sharing. They use the term “darknet” to describe a collection of networks and technologies for sharing digital content (Biddle et al., 2000: 1). They assume, rightly I believe, that “users will copy objects as long as it is possible and interesting to do so” (p. 2). Because the various elements of darknets (storage, search, transmission, input, and output) offer few points of attack, digital content will remain available in copyable form to a fraction of people. With broadband, only a few copies are needed for such reproducible digital content to become easily accessible worldwide. We can also expect new “digital containers” with keys and locks, alongside new software for converting file formats. What is striking about the internet is how quickly and widely information spreads (Richtel, 2002). The Digital Millennium Copyright Act technically makes it illegal to distribute information on circumventing copy controls, yet DVD decoding software for bypassing Macrovision, DVD region-encoding, and CSS encryption is so widespread that lawsuits against those who originally published the code were dropped in the U.S. before any rulings. Both technological limitations and historical trends in the U.S. suggest that record companies would benefit more from shifting focus away from digital rights management toward other approaches. Indeed, the RIAA’s desperation in suing its own consumers is at least partly an admission that technological solutions alone will not work.

Are the lawsuits changing file-sharers’ behavior? Reports are mixed.

The Pew Internet Project, extrapolating data from phone surveys in April 2004, estimated that the lawsuits convinced roughly 6 million former downloaders to stop, but also that 5 million new users started up in the same period (Rainie et al., 2004). Companies tracking traffic volume and download numbers report a slight dip after the summer 2003 publicity around the lawsuits, but numbers quickly returned to pre-lawsuit levels, still representing about 20 times the volume of legal downloads (Banerjee, 2004). It is no wonder the RIAA wants to change the culture. But to grasp this culture’s character and its relationship to the internet, a cross-national comparison offers some perspective.

What internet problem? Lessons from Japan

Japan, the world’s second-largest economy, is also number two in music sales. It is a mature national market where Japanese music (hôgaku) has outsold Western music (yôgaku) since 1967 and now accounts for three-quarters of the market. According to the Recording Industry Association of Japan (RIAJ), recorded music sales in 2002 were valued at US$4.6 billion ($36.09 per capita), compared to U.S. figures of $12.3 billion ($43.10 per capita) (RIAJ, 2003b: 21). Like the U.S., Japan has experienced declines, but surprisingly modest given that Japan entered a decade-long recession in 1992; yet audio sales value rose from 1993 to peak in 1998. Since then, audio sales value eroded steadily at 5–7% for three years, then dropped 13% in 2002, with early estimates for 2003 showing similar declines. What is striking, however, is that few business leaders cite the internet as the primary reason for the sales loss. An international comparison of file-sharing network users suggests why (Oberholzer and Strumpf, 2004: 35).

Based on late 2002 data, Japan had the second-highest share of world internet users, yet its download share ranks seventh—merely one-tenth of the U.S. download share and a fifth of Germany’s downloads.

How did Japan avoid an online file-sharing epidemic despite such a large internet user base? Is the law stricter or enforcement more aggressive? No. Japan’s copyright law is largely harmonized with the U.S., yet only three people have faced legal action for using P2P networks. Do Japanese music fans respect copyright law more or sympathize more with record companies? Doubtful. In fact, music fans in Japan seem at least as willing as Americans to copy and share music.

The difference lies in internet cell phones and legal, ubiquitous CD rental shops.

In Japan, broadband internet access for college students and households has lagged behind U.S. rates. Instead, Japanese are far more likely to access the internet via cell phone, and connection fees make the time spent downloading a song prohibitively expensive. Unauthorized copying, especially with CD burners, is instead blamed for the sales drop. Industry association research from summer 2003 surveys found that more people had recorded music (66%) than had bought music (53%) (RIAJ, 2003a: 4). But with CD rental shops, purchase prices double the U.S. norm, and the widespread use of mini-disk recorders, this is not surprising. In Japan, three weeks after a Japanese artist’s album is released at a purchase price of $25 or more, fans can rent the same CD for $3. Foreign music is not available for rental until one year after its Japanese release, and its sales have fallen less sharply (though sale prices are also about $5 cheaper) (McClure, 2003). Music industry consultant Masataka Yoshikawa says that CD-R copying is so rampant that teenagers no longer call a purchased CD a “CD” (shii dee) but instead use the term “master” (masutaa), as in the master copy best for dubbing (Interview, 8 July 2003). Copy-control CDs are widely used in Japan, with uncertain effects.

But why aren’t Japanese record companies crusading to shut down rental stores? Makiko Okada of Next Level Records (Tokyo) said, “The time for stopping rental companies is past. They are part of the business now” (Interview, 3 December 2003). An emcee from the Japanese hip-hop group Rhymester also noted a widespread feeling that ending CD rentals would lead to an even greater sales drop (ibid.).

Instead of attacking consumers with lawsuits, some in Japan’s recording industry are asking why fans see dubbing CDs as acceptable. In July 2003, I spoke with Katsuya Taruishi, head of the statistics division of Oricon, the company tracking album sales in Japan. He noted that Japanese fans voice the same complaints heard in the U.S., the foremost being that CD prices are too high for albums with only one or two good songs. However, Oricon’s research also showed that while music fans were buying fewer albums, they were listening to more CDs than ever—despite increased competition for young consumers’ disposable income from cell phones, video games, and DVDs.

Taruishi and others in the music business place at least some blame for consumer copying on the recording industry’s promotion styles, which encourage thinking of music primarily as a commercial item. In 1990s Japan, he explained, record companies relied heavily on promoting songs through tie-ups with television commercials and prime-time dramas. They focused on hit songs rather than developing fan relationships with artists and groups. Taruishi argues that such practices taught fans that music is simply a commodity, not a piece of an artist’s or group’s soul, so fans felt little compunction about copying music CDs, whether from friends or rental shops.

In situations where the connection between artists and fans is seen as more direct, people do buy. This was clearly illustrated by the astonishing success of a small indie-label punk band from Okinawa named Mongol 800, who had the best-selling album of 2002 without major label promotion. Hailing from Okinawa, the southernmost string of islands in Japan, far from the media center of Tokyo, Mongol 800 named their first album “Message,” a prophetic title. Its marketing began locally, with a strong push from Tower Records in Naha, the capital of Okinawa. Sales grew gradually until the album became a word-of-mouth phenomenon, spurred partly by email recommendations and friend-to-friend sharing over cell phones. Tourists visiting the tropical southern islands began bringing the album back as omiyage, a customary local gift Japanese bring after traveling.

The music sounds like positive-attitude punk, but the imagery symbolizes local pride, which is partly credited for the album’s success over nationally marketed acts. The CD cover shows residents in Okinawan outfits, and inside is an image of locals protesting the military presence. The “message” of Mongol 800’s first album, for some record company representatives in Japan, is that organic hits can emerge in an era when top-down, power-push strategies appear to be failing.

The absence of litigation toward individual CD-R copying brings to mind two other genres of Japanese popular culture that seem to have benefited from lax copyright enforcement: manga (comic books) and anime (Japanese animation). Manga are weekly comic books and collected-volume paperbacks that account for 20% of publishing sales value and 40% of volume (Schodt, 1996). An astounding variety of genres and styles cater to every segment of Japanese society, for men and women, young and old. There is also a widespread practice of making and selling fan-made comics (dôjinshi), which often use images from mainstream commercial manga. In Tokyo, the annual “Comic Market” (Komiketto) for buying and selling these fanzines draws about 300,000 visitors over three days. Most dôjinshi take characters from mainstream manga, clearly violating Japanese copyright law, and some fan artists support themselves on sales. Why don’t manga publishers sue?

Salil Mehra (2002), a professor at Temple University Law School, provides an excellent analysis of dôjinshi and Japanese copyright law, describing diverse theories on why publishers avoid lawsuits—though both fanzine artists and the publicly traded company organizing the convention could be held liable in Japanese courts. He notes that Japanese law requires copyright holders to file suits themselves, which could hurt mainstream artists’ reputations. Japanese courts tend to assess much smaller fines than American courts do. One law firm states the reason is a lack of enough lawyers and resources to prosecute such cases (Lessig, 2004: 27). Matt Thorn, a professor in the Manga Department at Kyoto Seika University, also argues that manga publishers realize dôjinshi markets do not substantially hurt sales; in fact, if a particularly racy fanzine stirs controversy, it can boost sales of mainstream manga (personal communication, February 2004). Toshio Okada, who works in anime, explained that some artists working for mainstream publishers also participate in dôjinshi markets, so publishers are loath to draw attention to their tacit acceptance of the practice (personal communication, October 2003). Possible reasons are many, but the conclusion is clear. Japan’s manga industry succeeds despite, and perhaps partly because of, widespread “copyright infringement.” Free file-sharing of digital music files is not the same as paid dôjinshi exchanges, but the point is that other nations’ industries are sometimes less draconian than the U.S. and still succeed.

The anime world may offer another example of the potential benefits of a lenient attitude toward copyright. Anime—Japanese animated films and TV shows—have become a global popular culture success story. A notable feature of transnational trade in anime is the widespread practice of “fansubbing,” where fans working in small groups for no pay add subtitles to Japanese animated films and TV shows. The groups are so efficient that the most popular anime in Japan, after first TV airing, are available online as fansubs within hours. There are good reasons to think that the dubbing and trading of anime among fan clubs in the U.S. strongly contributed to growing American interest in the films (Leonard, 2004). There is also evidence that anime fans police their collections, as when the MIT anime club removes fansubs and replaces them with boxed sets when available. Anime thus provides another example of how permitting some copyright infringement has not caused the “fall of the anime industry” but may well have contributed to its worldwide popularity. Similar cases can be made for how major media in the U.S.—including film, radio, recorded music, and cable TV—all depended heavily on “piracy” for their early success (Lessig, 2004: 53–61).

Japan offers several lessons. Eliminate P2P and you still won’t eliminate unauthorized copying. Marketing practices may partly blame fans’ willingness to copy music. Hits can be generated many ways, even without major label promotion. Businesses have other options besides fierce copyright enforcement. Manga and anime have flourished amid lax legal responses. Japan, with its rental CD shops, karaoke boxes, and a soon-to-boom market in “ring tunes” (CD-quality songs for ringing cell phones), shows that possible futures for media businesses are varied. U.S. record companies may be fighting the wrong battles.

American consumers vs. the industry: finding common ground

To find ways beyond the impasse between file-sharers and the recording industry, let’s examine the discourses around piracy in the U.S. more closely. A Foxtrot cartoon by Bill Amend from 22 November 2002 captures several key features of student attitudes.

Based on discussions with students and results from 70 essay-question surveys in 2003–4, a common theme emerges: students acknowledge that downloading music is illegal, but they justify it through antipathy toward the recording industry. One consequence of the industry’s strategy of using the language of stealing, piracy, and ethics is that students respond by questioning the industry’s own “stealing” and “ethics.” Complaints are numerous, and the quotations below come from surveys in October 2003.

- CDs are too expensive. Given that making a single CD costs record companies well under $1 (Vogel, 2001: 162), students feel CDs are overpriced, especially when only a couple of good songs are on the album. A student who reports never using P2P software for “ethical concerns” still thinks a fair price for music would be 50 cents per song or $3 per album. - Marketing is deceptive. Frustration was clear in one student’s response: “Preventing downloads is just trying to trick me into buying rubbish.” Another said downloading “makes up for all the music I got tricked into buying.” - Where is the money for the purchase price going? “I do not feel that I want to be supporting music/marketing label (i.e. mass media). I would rather see less money spent on videos and more on live shows.” Another student: “I am not stealing from artists but the greedy middleman.” Record companies might dispute “greedy,” but their accounting practices are circuitous. Courtney Love (2000) describes a hypothetical example from her experience of how a band that gets a $1 million advance and sells 2 million albums can still end up with no money, while the record company walks away with $11 million. - “Musicians make enough money already.” Superstar celebrities like Jay Z, Britney Spears, and Justin Timberlake dominate students’ thinking about music industry economics. “They should use recorded songs for promotion, and then make their money through performances.” Personally, I disagree because touring is grueling work and profitable only for top-tier musicians. - Downloaded music is free promotion for record companies. Some students had such a strong sense of themselves as part of the “target demographic” that it seemed natural for record companies to want to give music away to them. As corporations increasingly rely on viral marketing, street promotion, cool hunting, and peer-to-peer branding, students recognize they are integral to entertainment industry promotion networks (Lindstrom and Seybold, 2003; Quart, 2003). They have a subtle understanding of how value is added through a product’s movement through social groups. Giveaways and sponsorships are part of their lives, as at a live show in Boston in summer 2003 featuring Common and Bubba Sparxxx, where free sample CDs lay on tables and the bar. Each CD contained one full song and five song snippets, about a minute and a half each, from albums due out months later. The message seems to be that for the chosen few—the trendsetters—music is free, or rather, not free but compensation for the time and energy spent evaluating it.

Student attitudes accurately reflect some aspects of the recording industry but only tell part of the story. Consider, for example, artists’ share of sales from 99-cent songs on Apple’s online iTunes Store.

Perhaps the most dramatic point is that the label receives 47 cents, while the artist, producer, and songwriter/publisher together receive only 18 cents. The record company makes over two and a half times what the musicians earn. In the era of cassette tapes, the ratio was similar, with artists, songwriters, and producers combined receiving about 12–18% of an album’s sale price (Vogel, 2001: 168). From this perspective, the pirates seem to make a good case.

Record companies argue, however, that evaluating their share of the pie requires understanding the unusual features of the music market. The “disproportionate” amount going to record companies is necessary, they say, because so many albums fail to turn a profit. By some estimates, only 1 in 10 albums is profitable—a situation even worse than in the film industry where, on average, 3 in 10 films turn a profit (Vogel, 2001: 163). Record companies take the risk to support music that may or may not become a hit, so they deserve a larger share to keep that process going. Although pressing a single CD that sells in stores for $16 may cost record companies less than a dollar, studio production costs can easily run from hundreds of thousands to millions of dollars.

Consumer demand for the iPod surged quickly after Apple bundled iTunes with OS X and iPod firmware 1.0 in 2001.

A&R, marketing, and promotion costs for a major-label album range from $125,000 to well over $300,000 (Vogel, 2001: 162). Promotion costs can vary from nearly nothing to millions of dollars, excluding advances for artists and tour support, along with countless other business expenses. If record companies made their compensation structures transparent, their argument might carry more weight. One might also ask whether the 10 percent success rate reflects a natural property of the music market or if alternative models could achieve better results. People working on alternative compensation systems are often frustrated because their efforts are shut down before they can prove their potential.

One finding surprised me the most. When I play devil’s advocate in class, trying to make students feel guilty about file-sharing, I’ve been struck by how strongly they defend their actions by pointing to record company injustices, celebrity pay, deceptive marketing, and unfair pricing. In fall 2003, I began asking students a different question: Is there music you would always pay for? Most answered yes. They named indie artists or musicians from their hometowns, who they know “need the money.” Some students mentioned major groups “with a solid track record of good albums.” Others pointed to entire genres like jazz and classical, because “they stand the test of time” and lack adequate support from major labels.

The common ground for fans and artists, it seems to me, is the sense of participating in a shared community that supports music people care about. This pirate ethics overlaps with features of fansubbers and artists as well—namely, a belief that some commitment to popular culture transcends monetary value and instead draws on fan attachments in our shared investments in a participatory culture (Jenkins, 2003). A new generation of media consumers is increasingly aware of their own role as promoters and producers, and their media attachments are shaped partly by how they work and play with that media—building playlists, making mixes, trading favorites. Constructing a more promising future depends on building on their enthusiasm.

Conclusion

Napster showed that if enough people agree to share music—if a culture of piracy exists—then broadband access to an online network can approximate a “celestial jukebox.” From a music lover’s perspective, such a library is a gift. It removes the inconvenience of treating music as a commodity—Was it worth the price? Did I get ripped off?—and offers the chance to share music at the level of ideas, freely exchanged and competing with other music rather than other goods.

It foregrounds the value of music in terms of what it means to ourselves, our families, and our friends. Efforts to revive the recording industry by reinforcing the property relationship in music work against this social urge to share. Lawsuits against consumers, pending anti-piracy legislation in Congress, and school education campaigns all share a commitment to “protecting property” as the foundation for a healthy business. Yet I know many people who have used peer-to-peer downloads to develop new love affairs with music. Some rekindle old flames, some have flings with new acquaintances, others confirm in advance that a relationship will last. The RIAA wants to teach us that if you didn’t pay for it, it isn’t love.

Even if the RIAA manages to reduce US peer-to-peer file-sharing to Japan’s tiny level, Japan shows that preventing online sharing does not stop unauthorized copying. As storage and transfer technologies continue to expand—flash cards, standalone CD-R, iPods, terabyte hard drives, and so on—the “darknet” may eventually depend less on peer-to-peer networks anyway. Technological speed bumps may slow less tech-savvy consumers, but what counts as tech-savvy changes rapidly. Remember when email was once new and geeky? Finding some balance in copyright enforcement is crucial, but we need to balance more than just “property loss” and “penalties.” Digital rights management imposes costs that are too seldom acknowledged. Even if lawsuits “succeed” in reducing sharing, they are likely to fail in the larger goal of leading us to a healthy music future because the social dynamics that drive our interest in music depend on word-of-mouth discussions, friend-to-friend sharing, and convenient access.

Some people speak of the “corrosive effect on our legal system” when people flaunt copyright law, but there is a logic and a presumed ethics to sharing among fans (for instance, downloading is acceptable, but downloading and selling is not). This ethical logic is not fully consistent, nor does it fully represent the music business, but it does show that music fans still feel the need to justify their actions on moral grounds, even when using “free” networks. The more troubling “corrosive effect” on the recording industry is the ideology of commercialism that insists music be thought of primarily as “property.” This commercialism is a key pivot around which fan attitudes revolve. If music is just a commodity, consumers will get it as cheaply as they can. If music is the art and lifeblood of a group they care about, fans will support that group. This could be the foundation for building alternative compensation systems.

I would also point out some implications for international cultural studies. Initially, I assumed a cross-cultural study of music piracy would reveal differences between the US and Japan in how ideas of copyright, creativity, and music are treated. Instead, what I found was a convergence of attitudes among fans in the US and Japan, but a divergence in corporate

and legal responses to falling record sales. Using ethnography to study not geographic locales but locations constructed in fields of unequal power relations seems a very productive way of grappling with the troubling conflicts surrounding visions of culture in a civil society (free, shared) and culture in an information economy (commodified, privatized). Americans tend to assume the US is leading the world technologically, economically, and politically toward some kind of global convergence, but there is growing evidence that we are witnessing a proliferation of alternative national futures. If cultural creativity partly depends on allowing the free use of cultural heritage, as Lessig (2004) and others argue, then one potential danger of draconian copyright regimes is turning the US into a media backwater, while other nations with more liberal practices toward non-commercial use may find ways to compete more successfully in the global media market.

Finally, does all this mean copying and file-sharing are acceptable? The ethics of file-sharing depends not simply on whether we download music, but on what happens afterward. Lessig (2004: 68–69) identifies four purposes for downloading: (a) to replace purchasing, (b) to sample then purchase, (c) to access otherwise unavailable content, and (d) to access content that is not copyrighted. Only (a) can hurt the marketplace. I would encourage thinking of file-sharing as a new kind of commercial-free radio, where the consumer becomes the DJ. Downloading music is ethical provided we support artists who matter to us, and this includes paying for recordings. This would allow reaping the benefits of digital distribution while mitigating negative consequences. Some will say fans cannot be trusted to do this, but the evidence suggests that the alternative of drastic technological and legal approaches would constitute an even worse scenario. If fans use digital technologies conscientiously, and record companies withhold judgment on the dangers of non-commercial uses, we might be able to take music into a new era in which battles over music piracy will seem as quaint as worries about the destructive potential of player pianos or VCRs. Whatever happens, there will be no way to move ahead without paying close attention to the attitudes and practices of the upcoming generation of fans.

Acknowledgements

I would like to thank Jing Wang, Shigeru Miyagawa, Tommy DeFrantz, Henry Jenkins, Bill Kelly, John Treat, Ted Bestor, John Palfrey, William Fisher, Marc Perlman, Sean Leonard, my students, the Digital Media in Cyberspace project at the Harvard Law School, and two anonymous reviewers for their insights into the issues raised in this article. All errors and omissions are my own.

Notes

1 In December 2003, the Los Angeles Times reports out-of-court settlements with the RIAA ranging from $3,000 to $7,000 (Menn and Jones, 2003).

2 As an RIAA website puts it, “Within the internet culture of unlicensed use, theft of intellectual property is rampant. . . . Many individuals see nothing wrong with downloading an occasional song or even an entire CD off the internet, despite the fact it is illegal under recently enacted federal legislation. . . . RIAA is pursuing a multi-faceted approach, combining education, innovation, and enforcement.” This excerpt is from the RIAA website under “Issues” with the title “Online Piracy and Electronic Theft.” http://www.riaa.com/issues/piracy/online.asp (accessed 28 August 2003).

3 Ren Bucholz presents an easy-to-understand scheme for voluntary compulsory licensing which illustrates key elements of an alternative compensation system, online under “Visualizing VCL” at http://www.trubble.com/blog/archives/000169.html (accessed 20 April 2004).

4 To clarify, most of the Western music sold in Japan is pressed and distributed domestically, usually with a “bonus track” and the lyrics translated into Japanese. Some, but far fewer, imports sell for about half the price of Japan-made CDs.

References

Banerjee, S. (2004) “Illegal P2P Proves to Be Resilient,” Billboard, 1 May: 76.

Biddle, P., P. England, M. Peinado and B. Willman (2002) “The Darknet and the Future of Content Distribution,” in Proc. ACM Workshop on Digital Rights Management, Washington DC, November. http://crypto.stanford.edu/DRM2002/darknet5.doc (accessed 13 April 2004).

Comaroff, J. and J. Comaroff (2000) “Millennial Capitalism: First Thoughts on a Second Coming,” Public Culture 12: 291–343.

Condry, I. (2001) “Street, Club, Market: A History of Japanese Hip-Hop,” in T. Mitchell (ed.) Global Noise: Rap and Hip-Hop Outside the U.S., pp. 222–47. Middletown, CT: Wesleyan University Press.

Fisher, W. (2004) Promises to Keep: Technology, Law and the Future of Entertainment. Stanford, CA: Stanford University Press.

Gitelman, L. (2003) “How Users Define New Media: A History of the Amusement Phonograph,” in D. Thorburn and H. Jenkins (eds) Rethinking Media Change: The Aesthetics of Transition, pp. 61–79. Cambridge, MA: MIT Press.

Gupta, A. and J. Ferguson (1997) “Discipline and Practice: ‘The Field’ as Site, Method, and Location in Anthropology,” in A. Gupta and J. Ferguson (eds) Anthropological Locations: Boundaries and Grounds of a Field Science, pp. 1–46. Berkeley: University of California Press.

Jenkins, H. (1992) Textual Poachers: Television Fans and Participatory Culture. New York: Routledge.

Jenkins, H. (2003) “Quentin Tarantino’s Star Wars? Digital Cinema, Media Convergence, and Participatory Culture,” in D. Thorburn and H. Jenkins (eds) Rethinking Media Change: The Aesthetics of Transition, pp. 281–312. Cambridge, MA: MIT Press.

Kelly, W. W., ed. (2004) Fanning the Flames: Fandom and Consumer Culture in Japan. Albany, NY: State University of New York.

Landler, M. (2004) “Fight Against Illegal File-sharing Is Moving Overseas,” New York Times, 31 March: 1.

Leonard, S. (2004) “Progress Against the Law: Fan Distribution, Copyright, and the Explosive Growth of Japanese Animation (1.10 4/29/2004),” http://web.mit.edu/seantek/www/papers/ (accessed 20 May 2004).

Lessig, L. (2004) Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin Press.

Lindstrom, M. and P. Seybold (2003) Brandchild. London: Kogan Page.

Litman, J. (2001) Digital Copyright. New York: Prometheus.

Love, C. (2000) “Courtney Love Does the Math,” http://dir.salon.com/tech/feature/2000/06/14/love/index.html (accessed 6 August 2003).

McClure, S. (2003) “Production Data Down, but Foreign Albums Thrive,” Billboard, 9 August: 67.

Maxwell, I. (2002) “The Curse of Fandom: Insiders, Outsiders, and Ethnography,” in D. Hesmondhalgh and K. Negus (eds) Popular Music Studies, pp. 103–16. New York: Oxford University Press.

Mehra, S. (2002) “Copyright and Comics in Japan: Does Law Explain Why All the Cartoons My Kid Watches Are Japanese Imports?,” Rutgers Law Review, Fall.

Menn, J. and Jones, T.Y. (2003) “Refund Unlikely for Sued File Sharers,” Los Angeles Times, 20 December: 1.

Miller, D. (1995) “Introduction: Anthropology and Consumption,” in D. Miller (ed.) Acknowledging Consumption: A Review of New Studies, pp. 1–57. London: Routledge.

Negus, K. (1992) Producing Pop: Culture and Conflict in the Popular Music Industry. London: Edward Arnold.

Oberholzer, F. and K. Strumpf (2004) “The Effect of File-sharing on Record Sales: An Empirical Analysis (March),” http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf (accessed 20 May 2004).

Quart, A. (2003) Branded: The Buying and Selling of Teenagers. New York: Basic Books.

Rainie, L., M. Madden, D. Hess and G. Mudd (2004) “14% of Internet Users Say They No Longer Download Music Files: Data Memo from PIP and comScore Media Metrix” (25 April), http://www.pewinternet.org/reports/toc.asp?Report=122 (accessed 20 May 2004).

RIAJ (Recording Industry Association of Japan) (2003a) “Ongaku contentsu

kojin rokuon” [Individual recording of music content], http://www.riaj.com/release/2002/pdf/kojin_fukusei.pdf (accessed 20 May 2004).

RIAJ (Recording Industry Association of Japan) (2003b) “RIAJ Yearbook 2003: Statistics, Trends, Analysis,” http://www.riaj.or.jp/e/issue/pdf/RIAJ2003E.pdf (accessed 23 March 2004).

Richtel, M. (2002) “Ideas and Trends: Digital Lock? Try a Hairpin,” New York Times, 26 May: 12.

Schodt, F. (1996) Dreamland Japan: Writings on Modern Manga. Berkeley: Stone Bridge Press.

Shapiro, C. and H.R. Varian (1998) Information Rules: A Strategic Guide to the Network Economy. Cambridge, MA: Harvard Business School Press.

Sullivan, A. (2000) “Dot-Communist Manifesto,” New York Times Magazine, 11 June: 1.

Thornton, S. (1996) Club Cultures: Music, Media and Subcultural Capital. Hanover, NH: University Press of New England.

Vaidhyanathan, S. (2001) Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. New York: New York University Press.

Vogel, H.L. (2001) Entertainment Industry Economics: A Guide for Financial Analysis, 5th edn. New York: Cambridge University Press.

Wade, N. (2003) “We Got Rhythm; the Mystery is How and Why,” New York Times, 16 September: F1.

IAN CONDRY is Assistant Professor of Japanese Cultural Studies at Massachusetts Institute of Technology and is writing a book about hip-hop in Japan. His chapter on Japanese hip-hop fans is included in Fanning the Flames (2004, ed. W. Kelly). Research interests include Japanese music, transnationalism, comparative media studies, and the interplay between commerce and cultural creativity. Address: Foreign Languages and Literatures, MIT, Cambridge, MA 02139, USA. [email: condry@mit.edu; website: http://iancondry.com]