Internet law professor Michael Geist examines how musicians are taking the issue of copy controls into their own hands.
Artists, including Avril Lavigne, have spoken out about suing fans
Music industry lobby groups have long been among the most vocal advocates of copyright reform, urging governments worldwide to prioritise intellectual property protection.
Led by the International Federation of the Phonographic Industry and its sister national organisations, these groups frequently blame government inaction for recent sales declines, arguing that legal reforms are needed to support music industry innovation.
While the data suggests that peer-to-peer file sharing is at best only a minor reason for the decline (more significant is competition from DVD and video game sales and the emergence of big box retailers such as Wal-Mart who have pushed down retail prices and decimated sales of older titles), events over the past month have provided the clearest indication yet that musicians and music sellers are charting a new course that is leaving the major record labels behind.
In the mid-1990s, the industry focused on retaining its core business model by relying on copy-control technologies, supported by additional legal measures, to curtail unauthorised copying.
Ten years later, that strategy is now in tatters.
The use of copy-controls have proven to be an abject failure - not only do they do little to stem the tide of unauthorised copying, but they ultimately punish the industry's best customers who face a barrage of interoperability problems, security threats, and limitations on their personal property.
In response, digital music sellers are now virtually unanimous in their rejection of these technologies. Leading online music retailers such as Apple, Amazon, Puretracks, eMusic, and Yahoo, have all rushed to assure consumers that a growing percentage of their offerings are free from copy-controls.
In fact, a Yahoo executive recently brashly proclaimed that his company will not "invest any more money in consumer inconvenience."
Some music labels, including EMI and Universal, appear to have got the message as they have joined most independent labels in dropping copy-controls for some of their releases.
As the industry dithers with its failed strategy, musicians have begun to take matters into their own hands.
Last year, the Canadian Music Creators Coalition, which includes some of Canada's most acclaimed musicians such as Avril Lavigne, Sarah McLachlan, Feist, Sam Roberts, Billy Talent, Sloan, Sum 41, and Barenaked Ladies, spoke out openly against suing fans and the use of copy-controls.
Radiohead has released a pay what you want album
A growing number of international stars are following suit.
Last week, Radiohead released its latest CD without copy-controls on its website under a pay-as-you like system (Canada's Issa - formerly known as Jane Siberry - has successfully employed a similar approach for many years).
The Radiohead announcement has unleashed a stunning series of follow-up moves - reports indicate that Nine Inch Nails, Oasis, Jamiroquai, the Charlatans, and Madonna have either left or are ready to leave their record labels in search of greater commercial success through live performances, merchandise sales, and other online innovation that may include free distribution of their music.
Other artists are exploring new distribution partnerships - the Eagles are selling their latest CD directly to Wal-Mart, Prince distributed millions of copies of his latest CD for free in the UK in a newspaper promotion, former Kinks lead singer Ray Davies plans to do the same, and Nettwerk Records, one of Canada's leading indie labels, combined with a newspaper to offer free downloads of some of its most popular artists.
The rapid pace of innovation highlights the fact that artists and consumers are responding to the new digital reality.
As the digital music market continues to grow, politicians and policy makers ought to remind lobby groups that it is the lack of innovation - not government intervention - that lies at the heart of their tales of woe.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at firstname.lastname@example.org or online at www.michaelgeist.ca.