Bertis Downs to discuss challenges to the music industry

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Bertis Downs
Downs told students that the music industry is starting to combat illegal downloading of albums

Bertis Downs, general counsel for the band R.E.M. and adjunct professor at the University of Georgia School of Law, visited Duke Law on March 3, presenting a talk called, “May You Live in Interesting Times: Legal and Business Challenges to the Music Industry, Circa 2003.” The event was sponsored by the Intellectual Property and Cyberlaw Society.

Describing the Internet as “the world’s largest copying machine,” Downs discussed major challenges faced by the music industry at a time when millions of people are illegally copying and sharing albums through the Internet rather than buying them as they did in the past. “Now it doesn’t even occur to him to buy the record,” Downs said of a hypothetical music-copier. “He’s just going to burn it off the Internet.”

For years, the music industry did little to combat such activity, hoping to maintain its previous and profitable business model of selling CDs, Downs said. But the realities of file-sharing and illegal downloading have forced it to act, though sometimes ponderously.

Downs cited sales of blank compact discs — many of which are used to illegally copy music — as an example of the need for change. In 2001, he said, sales of blank CDs equaled those of CDs of recorded music for the first time. Now the ratio of blank CDs sold to those with music on them is 2-to-1, he said. The ratio is expected to be 5-to-1 within the next three years. “Now the industry is coming out of its flummoxed state of mind of the mid-1990s that this was just a fad and would pass,” Downs said.

Changes to the music industry have not yet been major or especially successful, Downs said, but a number of possibilities are emerging:

  • Companies could allow Internet users to download a single song at a relatively low price rather than forcing consumers to purchase entire albums they might not want.
  • Consumers who want a whole album but don’t want the packaging, liner notes and other trappings also could download music at bargain prices.
  • Rather than ignoring the illegal copying of music, the industry has stepped up efforts to pursue law-breakers in court.
  • The music labels also have launched public relations offensives, drafting performers to appear in advertisements and directly appeal to fans about the wrongs of illegally copying music.

But all of those solutions, along with other that have been tried, have inherent problems. For example, websites that allow users to legally download music often work poorly, and many people would rather download the music for free than pay anything for it. As for the PR campaign, the companies have had a hard time finding acts to go along with the idea. The bands that participate “lose their cool — their credibility,” he said.

Despite the problems with current solutions, the industry knows it cannot sit still and survive. “Now they’ve gotten the message,” Downs said. “They’re coming out of their shell.”

Downs graduated from Davidson College and the University of Georgia School of Law. A former law clerk for Senior Judge Wilson Cowen of the United States Court of Appeals for the Federal Circuit of Washington, D.C., Downs is past chair of the Music and Personal Appearance Division of the American Bar Association Forum Committee on the Entertainment and Sports Industries. He is active in many civic and political organizations, serving on the boards of People For the American Way, the Athens-Clarke Heritage Foundation and the Georgia Trust for Historic Preservation. He lives in Athens, GA with his wife, Katherine, and their daughter, Addie.