RIAA, the Prohibitionist.

In Computerworld today is an article, Analysis: $1.92M fine in music piracy case could hurt RIAA, relating to a music file sharing suit by the Recording Industry Association of America, (RIAA), which has has produced an award which may or may not be overturned upon appeal as excessive, is noncollectable in any case due to the inability of the defendant to pay and may well cost the RIAA dearly in adverse publicity as well as trial expenses. Indeed, since this suit was originally filed, the RIAA has largely given up suing individual file sharers as expensive and ineffective at slowing the pace of file sharing.

What this reminds me of is Prohibition -- a well intentioned but unenforceable policy doomed by reality to create perverse results. Copyright goes against the nature of information and against human nature as well. It is an artificial device intended to encourage authorship much as Prohibition was an artificial device to encourage sobriety. Back in the Enlightenment, the period in which the US Constitution was initially framed, much attention was wisely given to the concept of "natural law". It was understood then, but largely forgotten by the time of the 18th Amendment and since, that opposition to nature in lawmaking is a major cause of unintended consequences. Thomas Jefferson wrote an especially clear natural law based critique of what today we call "intellectual property":

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. -- Letter to Isaac McPherson Monticello, August 13, 1813

Here is another perverse results example: There are actually two distinct groups of copyright violators troubling the music industry, the individual file sharers, mainly students, housewives and others of modest means, and criminal organizations with factories stamping out large volumes of counterfeit CDs and DVDs. Some of the latter are suspected of being financial supports for terrorist operations. File sharers displace counterfeiters sales as well as those of music companies so going after the file sharers indirectly supports terrorism!

It is useful to note that the US Constitution provides for copyrights "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", not to protect the profits of publishers. There is both theoretical and empirical evidence that file sharing does a better job of promoting music creation and distribution than enforcement of copyrights do. See File-Sharing and Copyright, a Harvard Business School working paper by Felix Oberholzer-Gee and Koleman Strumpf, (PDF), and the much earlier Perfectly Competitive Innovation by Federal Reserve economists Michele Boldrin and David K. Levine. What leading musicians lose from lost CD sales through the music companies they often gain back from increased income from concert tours as the shared music recordings have a promotional effect.

In time, the aims of the RIAA are doomed to failure since nature cannot be defied indefinitely. The cumulative costs of the perverse consequences, to the music companies and to society, will eventually become unbearable.