Illegal downloading on the rise

According to this article illegal music swapping is on the rise again (although is still lower than before the RIAA initiated law suits).

Why the uptick?

"For one, he said waning media coverage of lawsuits could have something to do with it. Even though the RIAA continues to file lawsuits, reporting of the issue by major consumer media has dropped dramatically from what it was in the months leading up to the September subpoenas.

"Another possibility is that this increase is simply a reflection of traditionally high interest in music during the fourth quarter. Approximately one-fifth of music sales generally occur in November and December, according to NPD.

"Crupnick also noted that in late October, several high-profile legal music downloading services were launched. Some people may have been checking out the illegal peer-to-peer sites again to compare music lists with what's now being offered on legal sites, he said."

I recently read a draft of an article by Mark Lemley who estimated that around 900 law suits would be sufficient to curb downloading. Doesn't look like it. Lemley's larger point is that we need to be careful in shutting down peer-to-peer services, as they may have untold benefits that we forego. I'm not sure I buy this -- we can never really predict all the consequences of a legal rule -- and I question whether we should suspend normal legal rules simply because we're dealing with a new technology which may produce social benefits (but it's something to think about) (obviously there's lots more to say on this, but I leave that to Brian).

I wonder though whether additional sets of RIAA law suits will have a greater impact. (Although, actually, we're kinda already on set #2.) The downloader psychology might go something like this: "Uh oh, law suits ahead. Better be careful." Two months later "Whew, I didn't get caught. Time to start downloading again." But as the RIAA launches more suits, I wonder if downloaders will begin to perceive RIAA actions as a dynamic, ongoing risk rather than a one-time deal (that if escaped would leave them free to download more). Time will tell, I suppose.