As Taylor Swift has so famously asserted, “Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for.” That may be true, but unfortunately for Swift — and the music industry as a whole — the right to determine the commercial value of music no longer rests with creators, labels or publishers.

It rests with the anonymous pirates of the World Wide Web.

Though endemic for decades, music piracy exploded when digital and web-based technology rendered illegal music replication and dissemination cost-free, leaving the legal ramifications of copyright infringement the last remaining barrier to large-scale piracy. But, save for a cluster of lawsuits initiated by the Recording Industry Association of America, music pirates have faced few legal challenges to their thievery. Absent more rigorous enforcement of copyright laws, the music industry has little hope of recovering the profits lost from a decade replete with intellectual property theft.

Absent uniform, large-scale copyright enforcement, consumers can get pirated songs for free on file-sharing sites, often rendering them unwilling to pay for physical or digital copies of CDs in the future. This dealt a catastrophic blow to the music industry, which operated on a sales-driven business model. As industry profits plummeted from $45 billion in the early 2000s to roughly $7 billion today, entrepreneurs scrambled to develop distribution models that might entice listeners to actually pay for the music they consume.

These efforts produced Spotify and other streaming services, which allow listeners to play music on demand for free in exchange for listening to brief advertisements. Spotify has provided an accessible, no-cost way for 60 million consumers in 58 countries to legally listen to music, while still compensating songwriters and recording artists for their work. By providing its services to consumers for the price set by music pirates — absolutely free — Spotify has played a role in the industry’s anti-piracy fight. Upon initial introduction in Sweden, the service reduced music piracy by 80 percent. 

But the streaming model returns notoriously low profits to artists, who rely on publishers, labels and performing rights societies to quickly and accurately pay out royalties on billions of individual song plays valued at fractions of a penny each. High-profile artists like Swift have pulled their catalogue from the service in protest, despite the risk that doing so might drive consumers back to piracy sites.

Even if artists had vigorously supported the service, Spotify could not have solved the piracy problem. Allowing users to listen to music free of charge merely enables the service to compete with — but not defeat — the pirates. Today, more than 20 million Americans still consume pirated music, and it will take much more than a creative distribution model to reduce this number.

This is not a surprise. Intellectual property laws exist precisely because ideas like song lyrics and composition are infinitely replicable once they become public. Until the government enforces copyrights more effectively, pirates will continue to replicate and disseminate music unabated. Just as the government has a responsibility for enforcing traditional property rights through policing and standard deterrence, it too should direct resources to defending the rights it has guaranteed intellectual property owners.

Currently, copyright enforcement relies on entities like the RIAA to sue individual infringers. But in a digital era where pirates are often anonymous and host sites across international borders are outside of U.S. jurisdiction, relying on lawsuits is wholly inadequate. At the very least, it can only tackle the problem hosted in the United States, leaving cross-border theft unenforced in the vast majority of cases.

Music pirates exploit technology to carry out their crimes, and government agencies tasked with copyright enforcement should employ digital resources to detect and prevent infringement. The music industry itself has invested substantial capital to develop watermarking and fingerprinting technologies, both of which are designed to detect piracy by tracking where songs appear online. The technologies aren’t perfect. But the government — staffed with trained computer scientists — could conceivably improve these technologies and employ them to defend the rights that it has guaranteed to music creators.

Digital watermark and fingerprint codes could be synced with the metadata already on file for works registered with the U.S. Copyright Office, allowing enforcement teams to match pirated copies of works with copyright holders, empowering rights owners to pursue damages in civil court. Additionally, armed with more information about the nature and scale of piracy activities hosted by individual sites, the government could itself prosecute the pirates, or in the case of foreign-hosted websites, provide data to similar agencies in foreign states.

Granting federal bureaucracy the legal purview to police the Internet is not necessarily an attractive option. But after a decade of failed market solutions and piecemeal enforcement through the occasional private lawsuit, it’s certainly time to try something new. Empowering the government to enforce the laws it created is a good place to start.

Victoria Noble can be reached at vjnoble@umich.edu.

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