Why the digital-download divide is only going to widen

Even on a run-of-the-mill day, a debate over the perceived rights and wrongs surrounding digital file swapping gets readers worked up. And I mean really worked up.

But ever since the Recording Industry Association of America prevailed late Thursday in its copyright lawsuit against a 30-year-old single mom with a couple of kids, all hell has broken loose.

I'll leave it to you to debate the relative merits of the case, but there's no denying that the recording industry sometimes can be its own worst enemy. It's almost as if the industry's hired guns were on a mission to justify everything critics say is wrong about the copyright system.

Check out the comments responding to the blog authored by my News.com colleague Declan McCullagh, reporting why the jury decided Jammie Thomas of Minnesota must pay $220,000 to six of the top music labels. Here's a sampling:

"These big record companies are pure evil, with a history of doing everything they can to screw the consumer and squeeze every penny out of them, just to buy Edgar Bronfman Jr. and his pals more yachts and limos."

Or:

"I don't think P2P networks, and uploading or downloading, is stealing but (rather) more of an alternative method to acquire art for your own listening pleasure. If someone is "profiting" from downloading/uploading art, then that is stealing. How is today's digital format different from recording a vinyl record onto a cassette? For yourself or for a friend? However, back in the '70s, the RIAA didn't sue people for doing this, and EVERYBODY did it!"

That was predictable. The recording industry argues that the law is on its side. But then it's goes out and backs up its claim by suing individual music listeners. Hello? Did anyone at the RIAA consider that this may not be the best strategy to win hearts and minds? Slash and burn, yes--but this isn't the Mekong Delta, folks. I found myself closest to this poster, who argued:

Back in the '70s, everybody did it--it was no less stealing, but it was also much more difficult, and the quality typically wasn't nearly as good...If I wanted to make 50 copies for my friends, it would take hours and hours. If I want to give 50 copies to my friends now, the e-mail group takes seconds...It's a different environment, and RIAA had to evolve in strength and ability to meet that environment...Sharing only goes so far--and it's much easier to share the property of others...Were someone to move into my garage or living room, and start taking my leftover pizza from my fridge, "share and share alike" ain't gonna be the first thing on my mind.

The last time I looked, these folks were still debating the finer points of this dispute. I don't want to get stuck in the legal weeds, but my immediate problem with the verdict is that the punishment is disproportionate to the crime. If my math is correct, we're talking up to $150,000 per willful act of infringement when the purchase price of a music download is 99 cents.

The bigger question is the absence of any consensus in this country about the proper rules of behavior governing digital downloads. When it comes to digital music, what constitutes fair use, and what constitutes theft? I know what the law says, but most people don't bother consulting the U.S. Code.

The recording industry won a controversial copyright conviction, but this is a brief chapter in a endless saga. The only safe bet to make for now is that the divide about what we ought to do will only widen.