Piracy: Scapegoat for an Entire Industry

Back in October, I posted, in excited anticipation, about Radiohead's newest release In Rainbows. You may recall that the band opted not to sign to a record label. Instead, they made the album available for download and allowed users to pay whatever they wanted.

Radiohead has not released their sales figures, but surveys indicate that most users paid very little for the album. However, whatever Radiohead did receive in payment likely exceeded their share of sales royalties under a conventional recording contract.

Now the physical version of the album is in stores, and (Guess What!) it went straight to #1 in sales for the week. Granted, January is a slow month for music sales, and the total US sales in the first week were about half of Radiohead's highly anticipated previous release. However, this supports the case (however strongly) that piracy is not the primary issue facing the ailing record business. Even here, where listeners were encouraged to download the album for free before it was available in stores, they are able to demonstrate sales most other artists would be jealous of, not to mention that every physical album sold is just gravy at this point.

Instead, the problem with the record industry is stubborn insistence on an outdated business model. They market one catchy song and sell it as a pricey album with 12 crappy songs. Yes, consumers are pirating the catchy songs, but they wouldn't if they were given an alternative with value, like a reasonably priced single (consider the success of iTunes) or an album of genuine quality (think Radiohead).

Don't get me wrong. As a budding Intellectual Property attorney, I firmly support the right of record labels to control the terms of distribution of their copyrighted works. But at some point, they have to consider the practical aspects of enforcement. If their marketing strategy encourages more piracy than they could possibly hope to control, it is bad business not to adapt. Examples like Radiohead's new album illustrate that record labels may be a hindrance to artists rather than an aid, and more artists may choose to exploit their copyrights on their own.