Collective mens rea? Or a lack of musical supply…

Ben Jones of TorrentFreak published an article a couple of weeks ago discussing the 2008 Digital Entertainment Survey in the U.K., in which it was revealed not only that so-called “piracy” is rampant, even among the generally non-criminal element. What’s a little more interesting than this, though only newsworthy because of its having been documented, is a major reason for the pervasiveness of unlicensed downloads, as I would prefer to call it. From the article:

In total, 70% of those who admitted to piracy agreed that “legal sites just don’t have the range of illegal ones” (try looking for Beatles tracks) whilst almost as many said they would pay for downloads, if what they wanted was available. This is probably also one of the main reasons why half of the BitTorrent downloads are TV-shows.

The fact that one third of the UK citizens can be labeled as a pirate is thus a signal that these customers want something that is not available through other channels. It’s more about availability than the fact that it’s free.

Once again we see that the pop-culture industry refuses to address the demands of the consumer, instead relying on extending the reach of the law to criminalize behaviour that is more indicative of a poor market supply of quality product than of a collective mens rea.

The industry should be adapting, recognizing that their content – the product actually being hawked within the glittery packaging – is poor quality. Ah, yes, but that is often what the public wants! One-hit ringtone-du-jour pop. Then give it to them as such. What am I getting at here?

The market has bifurcated.

There are now two distinct products in the pop-music / pop-culture marketplace: For every Kanye West, U2, and Sheryl Crow album there are a dozen cheap sampled riffs that have a shelf-life of this morning and a production value that maxes out through the ringer of a Motorola Razr.

The first market only listens to mp3 tracks for convenience, and laments not being able to find the back-catalogue of Louis Armstrong either on the record store shelves or the listings of an mp3 store. When they finally find those tracks somewhere – anywhere – they find them often as 128 kbps mp3 files for download from someone who ripped their CDs, not for profit, but just to make Pops’ music available. This market has a hi-fi system somewhere, be it at home or in the car, and loves music of all stripes, as long as they can behold it as art.

The second group has no dreams of Bang & Olufsen at home, but instead insists on the world knowing that whatever mp3 is in their iPod has been popular for ten minutes and they are cool enough to have been listening to it for twenty. The production values are irrelevant; the packaging is all that matters. Why try to sell this person a 20-bit compact disc? He or she will only use it to create mp3 files to carry around, compressed to 128 kbps or worse, as there is no dynamic range to lose.

Two markets, but the RIAA and its global equivalents see only one.

The first is the collector, the music lover, who sees downloading as a last resort to obtain what cannot otherwise be obtained since the record companies have cut loose the long tails of their catalogues. Personally, I have procured a mid-seventies record player, thanks to some very dear family friends, and have taken to buying old records whenever I can. I have records ranging from the nostalgic schlock I listened to growing up to Benny Goodman in Brussels to The London Symphony Orchestra performing The Who’s Tommy.

The second market is the lo-fi market, the pop-culture consumers who are not looking for Jimmy Page’s fingering differences between the studio and live versions of “Over the Hills and Far Away”. This market is wants to hear the irrepressible chorus of Nickelback’s “Rockstar” over and over, or the latest sampling and redub of the synth from Soft Cell’s “Tainted Love”, or, talented though she may be, Amy Winehouse’s “Rehab”.

Nickelback and Winehouse may cater to both markets, so why not have two products? We have DVD and Blu-Ray both available, and the latter is not replacing the former any time soon. In fact, we even have UMD for the kids to watch movies on the 4.3″ screens of their PlayStation Portables.

We do have two audio formats: CD and mp3. But this is not widespread, nor does it seem to be targeted in a way that properly addresses the market bifurcation. Mp3 sales are designed to curb downloads, not to offer different audio bandwidths to different markets at different price points. Why not offer both128 and 256/320 bandwidths? Offer 128 kbps downloads of stuff likely to be downloaded for momentary consumption – even use DRM to create a short-term rental for the likely length of the track’s popularity! Offer lifetime licenses – formerly known in the real world as sales – at high fidelity (256/320 kbps) at higher prices of music targeted to the music lover group; but – and this is an absolute necessity – show them you love them by pouring millions in resources into converting those back-catalogues.

Win them back with supply; don’t try to bully them with the blunt instrument of lawsuit fear.

What we see from this U.K. study is this: Market economics have spoken, but the industry refuses to face their own inconvenient truth; instead of looking for clean air, which would require movement, they maintain momentum and gasp for what little poisoned air remains where they are, continuing in the process to further poison that air.