Editore"s Note
Tilting at Windmills

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December 31, 2007

WHEN THE RIAA LOSES ITS MIND....I appreciate the fact that the music business is in the midst of considerable turmoil. CD sales are abysmal, record companies are losing a lot of money, and music pirating has become fairly routine, prompting thousands of lawsuits from the RIAA against consumers. It's an industry facing major, system challenges.

But if the music business wants to get back on track, this definitely isn't the way to do it.

[I]n an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."

According to the WaPo report, the music industry's own website says that making a personal copy of a CD that you bought legitimately "may not be a legal right, but it 'won't usually raise concerns,' as long as you don't give away the music or lend it to anyone."

It appears, however, that it's raising plenty of concerns from the RIAA, which is taking a ridiculously hard-line. Indeed, it's as if the industry is anxious to destroy any remaining goodwill it may have left.

Matt Yglesias noted that, given this RIAA position, Hillary Clinton might be vulnerable to an expensive lawsuit, but I'd set my sights a little higher.

Steve Benen 1:30 PM Permalink | Trackbacks | Comments (48)

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Comments

Oh sure, there's all kinds of high profile people the RIAA can go after, but those people can hire fancy pants lawyers. The RIAA is much happier with the thug approach: shake down the little guy (read: you, me, and small time pub owners) and make some fast cash and justify all those lawyer fees they are paying. It's an old trick that gangsters have used for years.

Posted by: Inaudible Nonsense on December 31, 2007 at 1:30 PM | PERMALINK

I wish they'd sue my neighbor for sharing music with me at 3AM last night.

Posted by: B on December 31, 2007 at 1:33 PM | PERMALINK

I would like to see a legal opinion on this. It seems to me that if I buy a CD and want to listen to it on my mp3 player, that is well within 'fair use'. Are they really going to take the position that only music purchased online and not as a CD in a store is the only type of music one can put on thier ipod? This seems, well, insane.

Posted by: DP on December 31, 2007 at 1:34 PM | PERMALINK

They'll wait until Hillary's in office and then impeach her for ripping stuff to her iPod.

Posted by: jimBOB on December 31, 2007 at 1:42 PM | PERMALINK

That's not my computer.

It's my wife's. Honest.

Posted by: bobbywally on December 31, 2007 at 1:42 PM | PERMALINK

The music industry, at least as represented by these suits, is insane. Attacking and making implacable enemies out of your customers is not a good strategy.

The model of obtaining music has changed forever and the sooner the industry figures out a way to make money on the new model, the better for everybody. I trust it can be done if the industry really wants to figure it out.

Artists need protection, companies are entitled to make money, but clearly the shock and awe war on customers won't work. The battle has already been lost.

Posted by: jrw on December 31, 2007 at 1:43 PM | PERMALINK

I guess I missed that class in business school that taught you that suing your customers is a good business model.

Posted by: mert7878 on December 31, 2007 at 1:44 PM | PERMALINK

I'm happy they have pushed the issue. As a consumer, why buy CDs at all if I can't rip them to my iTunes library? So, it seems to me that the RIAA are self-destructing.

Not to mention that it is also a totally unenforceable notion.

Posted by: PTate in MN on December 31, 2007 at 1:48 PM | PERMALINK

What goodwill? The music industry treats consumers like fools & tools, then whines about how ill-used it is. I've got a miniature violin around here somewhere, let me get it out and play 'em "Cry Me a River"...

Posted by: Cap'n Phealy on December 31, 2007 at 1:56 PM | PERMALINK

If I were a producer of independent music, I'd immediately start printing a waiver on all CD's granting permission to rip the contents to the user's personal computer/mp3 player. Just to highlight what a bunch of insane assholes my competition was.

Posted by: jimBOB on December 31, 2007 at 1:59 PM | PERMALINK

I read the Wapo article and thought that there is an industry in terminal decline. Once you start suing your customers for adapting your product to new technology your industry is well and truly screwed. The music industry has to embrace and adapt to the new technology or perish.

Eventually the copyright law will be changed to reflect the new technology. A few thousand more childish lawsuits and the RIAA will piss off enough of their customers that their congressmen will start returning their bribes (er, campaign contributions) to the corporations.

Posted by: corpus juris on December 31, 2007 at 2:01 PM | PERMALINK

DVD's of old movies sell for $5 but CD's of old music cost over $10. No wonder the music business is going down the drain, for which I am glad. New music is bypassing the corporate model and selling their music directly to the user as well as having their own net radio stations. New music does not require the old corporate distribution model to sell their music. In a few years all of the old music will be locked up, and it will unleash billions of new songs made and distributed without the non-value added by music company labels. That may prevent an artist from becoming a millionator like Madonna or Celine, but it might provide incomes to millions more artists deemed unprofitable by the seersucker suit crowd.

Posted by: Brojo on December 31, 2007 at 2:02 PM | PERMALINK

The RIAA and the music companies exist only because of the recording technology that was invented in the 19th century. Newer technologies may destroy them. Tough shit - Luddites never win. Nor will the public miss them, as the public will still be enjoying music (just as they have for millenniums).

Posted by: alex on December 31, 2007 at 2:10 PM | PERMALINK

I would like to see a legal opinion on this. It seems to me that if I buy a CD and want to listen to it on my mp3 player, that is well within 'fair use'. Are they really going to take the position that only music purchased online and not as a CD in a store is the only type of music one can put on thier ipod? This seems, well, insane.

Bear in mind that the media industry doesn't even want you to have the ability to transfer your music or video to other devices. Their ideal is a media format that gives them complete control over what devices you can play their IP in, how many times it'll play, how long, etc. All moving towards a "pay-per-performance" model where customers pay every time they listen.

Fair Use is subject to a great deal of interpretation. I believe the Audio Home Recording Act is what explicitly allows for the backing up of media without risk of infringement, but it also set out exactly what constitutes a audio-recording device. In the past the courts have interpreted the law very broadly, but that may change. With Congress passing laws like the DMCA, it's going to become increasingly easy for the media industry to eliminate Fair Use altogether.

Artists need protection, companies are entitled to make money

Why? Why do artists need protection? Why are these companies entitled to make money? I'm not trying to be a jerk; I think it's important that people actually consider the principles behind our IP laws. Are they serving the purpose they were intended for? Are they necessary anymore? The Constitution set forth copyright "to promote the arts and sciences". It's job was not to make sure people make money (which is good, because copyright does a poor job of that). There are many intellectual and creative fields were copyright does not apply, yet they continue to thrive.

What is the goal of copyright?

Posted by: Sojourner on December 31, 2007 at 2:10 PM | PERMALINK

I sense a populist issue that an astute presidential candidate could take advantage of. . . .

Posted by: GullyFoyle on December 31, 2007 at 2:11 PM | PERMALINK

Bush can't be sued for downloading CD's onto his iPod, because he's president and anything the president does is legal, because he's president.

Posted by: AJ on December 31, 2007 at 2:15 PM | PERMALINK

Sojourner:

The Framers seem to have felt that copyright (and patent protection) motivated content creators (and inventors) to create more content and inventions (via monopoly profit). The framers also apparently felt that copyright and patent monopolies stifled innovation over the long haul, and so limited the duration of the monopoly. End result: individual creators make money, the community gains new-fangled ideas and products.

I think they struck a pretty fair bargain.

Posted by: Model 62 on December 31, 2007 at 2:22 PM | PERMALINK

Should be easy enough for the RIAA to also take on the software companies that facilitate fair use, like iTunes, Roxio, Microsoft etc. After all, they're abetting all this unlawfulness. Fat chance.

Posted by: Bill H. on December 31, 2007 at 2:24 PM | PERMALINK

They've been trying to claim this since the days we used cassettes to record our vinyl records. I would be very surprised if they finally succeed with an argument they've been making unsuccessfully for the past 20 years as each subsequent technology came along.

Posted by: Mnemosyne on December 31, 2007 at 2:28 PM | PERMALINK

Model 62: The framers also apparently felt that copyright and patent monopolies stifled innovation over the long haul, and so limited the duration of the monopoly.

Yes, and in keeping with their Constitutionally granted power, Congress originally granted copyright monopolies for seven years (renewable for another seven).

Perhaps we should offer to accept the RIAA's draconian interpretation in exchange for reducing the current 95 year monopoly to 14. What do you think the RIAA's reaction would be?

Posted by: alex on December 31, 2007 at 2:34 PM | PERMALINK

I think they struck a pretty fair bargain. In hindsight, we'd have been better off if the Framers had fixed the copyright term in stone, though they probably never guessed that the interests of copyright holders would so totally dominate the interests of the people in Congress.

Posted by: Boronx on December 31, 2007 at 2:36 PM | PERMALINK

Sojourner...do you really think artists should work for free? That all artistic creations belong to you without regard for their creators?

I hope you're prepared to give away anything and everything you do to anyone who wants it. It's the same thing.

Posted by: jrw on December 31, 2007 at 2:38 PM | PERMALINK

Bush can't be sued for downloading CD's onto his iPod, because he's president and anything the president does is legal, because he's president. Posted by: AJ on December 31, 2007 at 2:15 PM

Of course, but only because HE is president. Now if Hillary Clinton were president and did this...

Well, obviously she deserves to be sued.

Posted by: Dr. Morpheus on December 31, 2007 at 3:04 PM | PERMALINK

I wish they'd sue my neighbor for sharing music with me at 3AM last night.

That's quite possibly the funniest line regarding music sharing I've ever read. Well challenged!

Posted by: raff on December 31, 2007 at 3:13 PM | PERMALINK

Was this the guy with the radio statio that everyone loved?

In remember in the last case, ripping your own music was illegal but I'm not sure if that was because the woman had Grokster (or Kazaa) or if it was ruled illegal in its own right.

Consumers prepare yourself for an epic loss. The best thing that can happen to the RIAA is absolute destruction.

Posted by: MNPundit on December 31, 2007 at 3:18 PM | PERMALINK

The WaPo article is either poorly or cleverly written, depending on if the reporter had an agenda. Just to be clear, Howell was not sued because he copied music to his pc. He was sued because he then used Kazaa to share those files over the internet. I strongly doubt the RIAA is ever going to go after personal use copies. Just as a practical matter, how would they ever find out?

Posted by: Dave E. on December 31, 2007 at 3:43 PM | PERMALINK

MNPundit: "remember in the last case, ripping your own music was illegal ...Consumers prepare yourself for an epic loss. "

If the courts ruled that the RIAA was right, that ripping the music from your legally purchased CD to an mp3 player was illegal, the law would be unenforcable. Consumers would simply stop purchasing CDs, and with regard to their existing CD collections, they would disregard the "law" as irrelevant. It is possible that the consumer reaction would turn neo-Robin Hood, where defying the law would be fashionable.

Eventually, the RIAA will go mad like some sort of cartoon bad guy from bringing senseless lawsuits against poor college students. Mmwha-ha-ha, they will shriek, in their looney way. Sooner or later, a non-Conservative billionaire sponsored government will address the situation, assuming, of course, we ever get our country back.

Posted by: PTate in MN on December 31, 2007 at 3:48 PM | PERMALINK

Model 62 & Alex:

I agree completely. Though I do not know who it was offhand, I believe one of the founding fathers referred to copyright as a "necessary evil". It was deemed necessary for promoting the arts.

Of course, the United States had a very long history of ignoring the copyrights of other countries to the benefit of US publishers, up until the point it started hurting the interest of those US publishers. Copyright itself was born from the desire of a British king to control the printing presses of his time.

So while copyright has always been ostensibly at promoting art, it has long been used opportunistically for money and control. It's obvious RIAA is using it the same way. Though I do believe the founding father's original copyright, with its very limited terms, was a fine bargain, the question must still be asked whether copyright is a good thing given how it is used.

jrw:
I believe that all artists deserve credit, and that of course their creations do not belong to me. But to answer your question with another, what does it mean for an idea, even an artistic one, to belong to someone? Can they control how it is used? Can they say who is to view it, who is to critique it, who is to remember it? Can they control how their idea influences others, and then do they get say on their derivations? Short of hiding one's work from viewing, such things are largely impractical. Ideas are not like physical property, they cannot be taken away at will. And while IP laws try to answer these questions to some extent, they mostly operate by accepting that the vast majority of people will infringe on a regular basis, and the law only comes into effect for the big things (mostly involved commercial use). Now, however, the media industries are trying to tighten control on the individual users, and one has to wonder if a law that makes the majority of people criminals is just.

To answer your other question, should artists work for free, I say that's the wrong question. Do they have a choice? In the current system most artists work for free, or rather, they get other jobs while pursuing art as a hobby. Almost no one makes it, and few can support themselves on their art. We have a system that benefits 1-10% of artists, and possibly hinders the rest. It's also a "somewhat" free market system; if someone isn't making money, we assume the market dictates that they shouldn't. Are only 10% of artists worth supporting? Should we have an artist welfare system? That seems highly questionable, but if we're worried about artists making a living, then is a system that really helps a small minority good enough?

More importantly, however, is the fact that artists simply cannot try to make money by distributing their creations in a world where distribution and reproduction are virtually free. It's a basic supply-demand equation, and with the internet we now have near infinite supply. I simply cannot see how it is possible for artists to make money per song or per album or per performance in such a situation. They simply must find a new system for supporting themselves, whether that's through concerts, merchandise, fan donations, celebrity perks, or what have you.

Hm, I've been going on for great length it seems. Sorry :)

Posted by: Sojourner on December 31, 2007 at 3:56 PM | PERMALINK

Can these sorts of lawsuits be brought before a real jury of normal people? Why would an honest jury find for the record companies? They could just say no to these crazy lawsuits.

Posted by: slanted tom on December 31, 2007 at 4:17 PM | PERMALINK

That's hilarious B. Although I'm sure you didn't think so at 3:00 AM when your neighbor was "sharing" his music with you.

Posted by: docmorpheus@excite.com on December 31, 2007 at 4:23 PM | PERMALINK

New music should be copyrighted to the artist and the masters owned by the producer and sold directly to the user through the artists' and producers' own on-line radio stations, whether it be mail order CD's or downloads. New music no longer requires music companies to promote and distribute.

The music companies prevent more music from being discovered than they promote anyway. The new model is going to unleash a worldwide explosion of creativity and sharing that the music companies know will eclipse their libraries and ruin their business models. Their attempt to lock up their product will only drive people to new music that will not be locked up.

Posted by: Brojo on December 31, 2007 at 4:25 PM | PERMALINK

Its a lost cause, no matter what they do anytime a song is played, as it requires soundwaves that traverse thru space, it can be recorded.

Posted by: Xisithrus on December 31, 2007 at 4:42 PM | PERMALINK

In fact, I should sue for all the songs I had to listen to I didnt want at dinner, or a movie, or from a car passing by, or from a noisy neighbor, or form some kid with a boom-box

Posted by: Xisithrus on December 31, 2007 at 4:45 PM | PERMALINK

The RIAA is a terrorist organization. Why isn't the Republicun party screaming about it?

Posted by: CT on December 31, 2007 at 4:48 PM | PERMALINK

Perhaps I'm an old fogey in my early 40s, but I think CDs are basically the ideal music format. They're discrete, pleasing little objects that have already collected the music I want to hear. I don't have to do any work and they're not too small and they're not too large. They come in those beautiful little jewel cases, which if you don't drop them or crush them hold up just fine. (If they break, you can just replace them.)

The music business is in trouble because of greed. ALL records and CDs for the last 30 years should have been priced at $4.95-$9.95. I would have spent TONS of money buying much more music if prices weren't always inflated to such an extent that it always made me say, "Hm, this is too expensive and a luxury, I better not."

If they price music correctly today, they might be able to save themselves, but maybe not, because they've thwarted and stopped a whole music-buying culture.

Artists will just have to sell and market themselves, and depend on their own savvy and sweat and live performances. That's the way it's pretty much always been for most creative artistes.

Posted by: Anon on December 31, 2007 at 4:55 PM | PERMALINK

But to answer your question with another, what does it mean for an idea, even an artistic one, to belong to someone?

That's why ideas are not copyrightable. I can have an idea for a screenplay all I like, but it's not protected by copyright until I actually write it down with characters and plot.

Copyright exists to protect the artist, which is why corporations have maneuvered themselves into the position of being able to purchase an artist's copyright from him/her. If I sell a screenplay, I'm also selling my copyright to that screenplay and no longer have any rights to it -- the rights now belong to the production company, and they can do anything they like with it, including handing it over to another writer to make the changes I didn't want to make.

Don't confuse the actions of the corporations who've manipulated copyright law to their own benefit with what's owed to artists. You're basically advocating that a corporation should be allowed to exploit what an artist does with no payment of any kind to that artist, because that's what the abolition of copyright would allow. Corporations don't stop exploiting works just because they're out of copyright -- stop by your local Barnes and Noble sometime and take a look at the table full of editions of "Pride and Prejudice."

Posted by: Mnemosyne on December 31, 2007 at 4:58 PM | PERMALINK

Model 62: The framers also apparently felt that copyright and patent monopolies stifled innovation over the long haul, and so limited the duration of the monopoly.

Not from that rationale. The purpose of the patent system is to encourage innovation in the short run and long haul, but not to stifle competition permanently.

Posted by: Luther on December 31, 2007 at 5:31 PM | PERMALINK

By the way, BoingBoing points out that this is a change in policy for the RIAA: http://www.boingboing.net/2007/12/31/record-industry-prac.html

Posted by: nitpicker on December 31, 2007 at 6:18 PM | PERMALINK

it has been a long time since my business law class, but didn't there used to be something called the "clean hands" doctrine? my recollection is that the doctrine invalidated legal claims asserted by an entity engaged in illegal conduct.

for instance, the riaa represents entities that have been engaged routinely in fraudulently deceiving "artists", "performers"[i.e., large numbers of royalties have been denied "artists" by deliberately deceptive bookkeeping. there is a considerable amount of litigation concerning these issues].

i would assert that under the "clean hands" doctrine, the riaa has no valid standing before the bar. and all their efforts to litigate should be dismissed.

true? untrue?

Posted by: albertchampion on December 31, 2007 at 6:33 PM | PERMALINK

This is an interesting article in Wired magazine, by David Byrne of the TalkingHeads. Snippet...

What is called the music business today, however, is not the business of producing music. At some point it became the business of selling CDs in plastic cases, and that business will soon be over. But that's not bad news for music, and it's certainly not bad news for musicians. Indeed, with all the ways to reach an audience, there have never been more opportunities for artists.
Posted by: SJRSM on December 31, 2007 at 6:45 PM | PERMALINK

I think it's important that people actually consider the principles behind our IP laws. Are they serving the purpose they were intended for? Are they necessary anymore?...What is the goal of copyright?
Posted by: Sojourner

As we move further and further into the information age, the concept of intellectual property becomes crucial. For a lot of enterprises, intellectual property (IP) is all they have. They barely even have any material stuff to think of. What does Microsoft sell, really? A bunch of ones and zeros in the right sequence?

I'm not a fan of the recording industry, but I do understand that there is a lot of plain old stealing of music going on out there. Some of my favorite music on my hard drive came from napster (RIP).

Posted by: SJRSM on December 31, 2007 at 6:51 PM | PERMALINK

What is called the music business today, however, is not the business of producing music. At some point it became the business of selling CDs in plastic cases

...and the business of grooming focus-group tested stand-ins for actual musicians. No record company, no Britney.

Posted by: Quaker in a Basement on December 31, 2007 at 7:47 PM | PERMALINK

Current copyright duration is Life of the author + 70 years. This was increased in 2003 to prevent Mickey Mouse, Donald Duck, and Goofy cartoons from entering the public domain. Current copyright law has very little to do with promoting the arts or motivating creators to create more content and everything to do with protectiing corporate profits. Someone should ask the presidential candidates what they consider an appropriate duration for copyright protection.

Posted by: tempest49 on December 31, 2007 at 9:26 PM | PERMALINK

The Supreme Court already blessed video cassette recorders in Sony vs. Universal (aka the Betamax case). That would seem to apply here; the court ruled that making copies for personal use was legitimate.

Posted by: Joe Buck on January 1, 2008 at 12:38 AM | PERMALINK

Sojourner, artists don't make their living off "ideas," they make it off works and performances. Nobody expects to control how other people react to, or are influenced by, or criticize works and performances. No one ever has. This is just a lot of "information wants to be free" childishness. I'm surprised you even think artists have a right to sell tickets to concerts.

Posted by: SquueakyRat on January 1, 2008 at 12:46 AM | PERMALINK

jrw,

Artists should work for free if they can't find a legitimate way to make money for their labor in a free market. And telling me what I can do with a physical object that I own (a CD and computer) on my own property is not a legitimate way to make money. When technology makes it impossible to make money using an old business model (music production and distribution based on "intellectual property" [sic]), then one has no God-given right to make money by relying on a state-enforced monopoly--no more than I have a "right" to a living selling buggy whips. Intellectual property is theft.

The capital outlays for recording and distributing music are damn near zilch nowadays, and it's possible to distribute one's own music online with virtually no overhead cost. And smart groups like Phish make money selling, not the music itself, but concert tickets and accessories. That's much like Linux distributers, who make their money off of software services (customization, tech support, etc.) rather than the software itself.

Posted by: Kevin Carson on January 1, 2008 at 4:17 AM | PERMALINK

As much as I hate the tactics of the RIAA, Dave is right, this is piss-poor example of journalism. What the writer leaves out of each case is that these people were nailed for posting the songs open to filesharing.

Posted by: clyde on January 1, 2008 at 4:39 AM | PERMALINK

If the recording industry is so hung up on making it illegal to rip music from CD's to mp3's, then why don't they make it technologically impossible to do so? I'm sure there's a way to "lock" the music files so they can't be copied.

Posted by: CatLover on January 2, 2008 at 11:17 AM | PERMALINK




 

 

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