Consumers frustrated by online music catalogues

Now that the RIAA has been suing people for almost two years for sharing music over peer-to-peer (P2P) networks, consumers seem to have gotten the message: if you distribute hundreds of songs to other users over Kazaa, LimeWire, BearShare, or any of the other networks, the RIAA might subpoena your ISP for your name and set its lawyers on you. Like every other person targeted so far, you'll probably settle out of court for about $3000. (None of these cases have gone to court yet, and none of them have targeted downloaders. The RIAA is still interested in only those who are uploading.)

Considering also the increasing availability of music online through legitimate avenues such as Yahoo Music Unlimited, labels seem to be sending a message to consumers: pay a subscription fee in return for music files that only work with certain software and hardware, and you can have all the music you want.

The surprisingly murky definition of all
There's just one problem. They don't have all the music you want, unless your taste happens to line up exactly with the arbitrary availability of certain songs and artists on the services. Even when a label or an artist decides to release an album digitally, it often includes only a few songs, so that real fans will still have to buy the CD.

The most famous example of this is The Beatles. Although tiny shards of the early Beatles catalogue have leaked onto online music stores, buying CDs is still the only way to get the vast majority of the band's tunes. The same goes for the labels' massive out-of-print back catalogues, as well as thousands of current artists and bands who are underrepresented on digital music services. Even if you pay monthly subscription fees to every online music service that offers a subscription, you'll still be missing out on a massive percentage of the world's officially released music -- possibly more than 50 per cent of what could be available.

Yahoo undermines RIAA calculations
On his blog, Mark Cuban (the Broadcast.com billionaire and owner of the Dallas Mavericks basketball team) has echoed Barry Ritholtz's speculation that Yahoo's new subscription service created a new standard for what the RIAA should be asking from consumers who download music illegally from the Internet: $60 per year, rather than the current penalty of up to $150,000 for each song shared. (Yes, all of those zeroes are supposed to be there.)

For consumers, the big difference between a P2P network and an online music service is that the P2P networks have far more music. Their selection is not determined by labels and artists who refuse to release certain music digitally for whatever reason, but rather by unfettered supply and demand. This is not necessarily the labels' fault, as much as online fans like to demonise them; often, the artist or band in question bars the label from releasing their tracks digitally, either because they don't want their albums broken up into tracks or because they just don't care about digital distribution.

The $150,000 question
Let's suppose you were to subscribe to four music 'to go' services -- eMusic, Napster, Rhapsody, and Yahoo -- for a combined total of $46.92 per month, or $563.04 per year, which, to my eyes, looks to be approximately what an enthusiastic music fan has probably paid for CDs or records in the past.

While subscribed to these services, suppose you wanted to hear a song, an album, or an artist that none of them offer. Would you then be morally, if not legally, justified in downloading the missing file(s) from a P2P network?

To tell you the truth, I'm not sure. I can see good points on both sides. The consumer is trying to pay the labels. If the labels don't want the money, why is that the consumer's fault? On the other hand, labels and artists ultimately have control over most copyrighted music, and they should not be compelled against their will to enter the third millennium and offer their stuff digitally (maybe they've attained enlightenment and no longer want to make money from their music -- who knows?).

I know one thing for sure: I'd love to see someone who subscribes to all of the services get sued for downloading music and actually take the case to court. Such a case might finally move things forward both for labels looking to the future and law-abiding consumers whose tastes do not exactly mirror the slice of music that's available online legitimately. Otherwise, music fans will have to keep downloading music illegally and ripping CDs to MP3s in order to fill the holes in online music service catalogues.

Eliot Van Buskirk is the technology editor of MP3.com
Additional editing by Nick Hide