Billy Barnes is a JD candidate at the University of Toronto.

Joel Tenenbaum was the second person to go to trial after being accused of internet file-sharing. His struggle with the RIAA has won him plenty of supporters as “the average David fighting against the corporate Goliaths.” This is just part of a larger social movement that sees piracy not only as acceptable, but laudable. While it’s hard to defend the recent decisions of the RIAA and other big media companies, I think this is the wrong path to take.

Peter Menell, a law professor at Berkeley, recently wrote an interesting article on this subject. Apparently, someone commented on the startling coincidence that Joel—standing up for the oppressed—was being sued for downloading Outkast’s song Rosa Parks. This comment sets the stage for Menell’s piece. While I disagree with a few statements made in the article, I accept the main points: downloading music is not civil disobedience and Joel’s decision to reject the settlement was probably misguided.

Reading comments on popular blogs, you see a trend. One comment will explain that piracy is good for artists and labels because it exposes people to music they might not otherwise hear. Thus by sharing music with friends, one increases the likelihood that they will buy the album or attend the concert. Another comment will explain that most artists only get a tiny portion of the profits, so it’s not really stealing. Other comments will say that art is meant to be shared, the record companies deserve to lose money, they’re an evil monopoly, or that pirating music will force them to listen to their customers. All of these are offered to justify taking music without paying, but music is not a scarce resource subject to a monopoly. Further, while Rosa Parks had a right to sit wherever she wanted without discrimination, no individual has a right to a particular song.

This is not the proper way to protest the music industry’s practices or legal tactics. By pirating content, file-sharers demonstrate to the music industry that there is a demand for their product. The music industry then concludes that if there was no piracy they might sell some more music. Those who have determined not to purchase content from these companies must do two things: they should decline from pirating it, and they should buy music from the companies they do wish to support.

As for Joel’s decision to fight for justice, it’s tough to see it that way when you consider the facts. He did download and share the files, and he turned down a fairly reasonable settlement offer. He was originally accused with sharing 7 files and offered a $3,500 settlement when the statutory minimum would have been $5,250. Instead, he denied ever having used an online sharing tool on several occasions. It was then proved at trial that he had downloaded and shared hundreds of songs (though they only claimed damages for 31) on several networks from at least 2002 until 2008—more than a year after he filed his answer to the suit.

None of this means that the RIAA chose the right tactics. It was definitely bad for their public image, doesn’t appear to have had the desired effect, and had an extreme impact on those who were targeted. Of the nearly 18,000 others who settled, there were no doubt many more sympathetic potential defendants (we know the RIAA pursued at least one deceased grandmother and a family that didn’t own a computer). Joel simply wasn’t the right David.

Posted in Copyright, Digital Downloads, IP