Last week EMI filed a lawsuit against the social network hi5 for allowing its users to upload videos with unlicensed music on their audio tracks. EMI alleges that hi5

“allowed infringement to go unchecked, content to profit handsomely from advertisements that appear side-by-side with infringing content, and from the draw created by their dissemination of [EMI's] copyrighted works.” (from the lawsuit)

OK. It’s understandable that EMI wants some control over how its content is used, who profits from it, and how much they pay for the right to do so. But this music-industry-has-hopelessly-oldschool-economic-model thing is becoming a tiresome truism. EMI is not going to be able to make money from teenagers using EMI songs in their homemade videos. EMI wishes it could. But that doesn’t mean the solution to the situation is to try to stop teenagers from using EMI songs in their homemade videos.

Consider two situations:

1. Teenagers don’t use EMI tracks in their videos. Neither Hi5 nor EMI profit from EMI’s property.
2. Teenagers do use EMI tracks in their videos. Hi5 profits from EMI’s property (‘handsomely’ in fact); EMI does not directly profit from its property, but it gets a mass of free advertising.

Granted, perhaps shock-and-awe tactics have their place in a solid legal strategy. But in this situation in particular, EMI has more to gain from the second situation than the first. Value is value, whether Hi5 is getting a free ride or not.

And free internet advertising is incredibly valuable. I sincerely hope, for example, that EMI’s legal team is not so zealous as to sue YouTube for the 21.6 million pairs of eyes (and counting) that graced last year’s “Daft Hands” meme (even if the star is now selling shirts):

Not to mention its 193 video responses, and copycat videos with 7.8 million views, and copycat videos of copycat videos; and that’s just YouTube.

It’s not about broadcasting anymore. The only way to truly engage with consumers is to relinquish some of the control you’re used to having over your brand. This is a terrifying prospect for people who have grown up with the security of detailed branding guidelines and a single source for their brand message. But things are going to get Darwinian fast.

EMI: The internet is here, and the songs up on its MySpace are actually pretty good. Give it an EP deal or something, at least. Before it releases its own album as pay-what-you-want and you go out of business.

-Nick