January 2, 2008

Use an iPod, Go to Jail - UPDATED to the point of being NULLIFIED!

Hatched by Dafydd

UPDATE January 3rd, 2008: It doesn't often happen that Big Lizards is completely, utterly wrong in a post; but I'm pretty sure this is one of those rare times...

Commenter Levi from Queens linked to a LaShawn Barber post that demonstrates fairly conclusively that the Washington Post reporter got this absolutely wrong: Evidently, the RIAA did not argue that uploading a song or CD to your computer alone violates copyright; they argued that uploading it to a KaZaA shared folder, where other KaZaA users could access it, download it, and reupload it or make copies, violates copyright.

That point is perfectly sound: If the file is made available for anyone to download, that's the same as making copies and leaving them in a bin outside your house.

I'll leave this post up, because I think it fairly well written on our part; we were simply misled by the elite media, with their multiple layers of editorial fact-checking. What follows is the original post, with another additional warning at the crucial point.

Sadder but wiser, Dafydd


The Recording Industry Association of America (RIAA) has found a clever, new way to jump the shark and make itself look like an organization of dangerous buffoons. I could simply tell you what they're doing; but it's so bizarre, you would accuse me of making it up. Instead, I'll advance the central point of this post via a quote from the Washington Post:

Now, in 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.

WARNING: This claim by the Post appears to be completely spurious; see the update above.

(There, now you can accuse the Post of making it up instead!)

[Why yes... you certainly can!]

I can't find a citation (after not much time spent Googling), but I swear I remember that in the early days of VCRs, the studios sued Sony (makes of Betamax) on the theory that a consumer taping a movie on Wednesday night to watch on Thursday night instead was violating the copyright owned by the studio. The theory was that, if Mr. Viewer could do that, he could also keep the tape forever... and thus would be unlikely to buy a commercially released videotape of the same movie.

The courts slapped that one down, enunciating the common-sense rule that copyright is only violated when the movie is duplicated and passed along to others, especially as a commercial transaction. The Post quotes Ray Beckerman, who represents six clients being 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...."

But lawyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording.

The Howell case is emblematic of a serious inability to deal with a changing market... a legal "stop the world, I want to get off" market strategy.

But legalities aside, this is a catastrophically kooky angle to pursue. What's really going on, between the lines, is that the RIAA is trying to use the courtroom to make a stand against the advance of technology, which is rendering null and void the old business model used by the recording industry for decades and decades. This is tantamount to an admission that they have no clue how to deal with it in the marketplace:

As technologies evolve, old media companies tend not to be the source of the innovation that allows them to survive. Even so, new technologies don't usually kill off old media: That's the good news for the recording industry, as for the TV, movie, newspaper and magazine businesses. But for those old media to survive, they must adapt, finding new business models and new, compelling content to offer.

The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed. Four years of a failed strategy has only "created a whole market of people who specifically look to buy independent goods so as not to deal with the big record companies," Beckerman says. "Every problem they're trying to solve is worse now than when they started."

Simply put, customers no longer put off listening to music until they're home, sitting before the home stereo setup. Today, I would guess that the majority of music listening is done away from home: at work, while at the gym, while walking from place to place or riding public transportation, or on long airplane flights.

Even at home, many folks prefer to copy their CDs to hard drive, then use any of a hundred "PC jukebox" applications to program their musical entertainment (and video, if they also copy their DVDs). By running a couple of cables, listeners and viewers can even play the media through their normal home speakers or on their ordinary digital TV.

(In our case, Sachi downloads the CDs we buy from the computer to her iPod, then takes the latter to work: Her employer won't let workers listen to internet radio, and dragging a portable CD player and a stack of disks around is too cumbersome.)

But attacking customers who legally buy the product that RIAA members sell (as we do) -- simply for using that product in a more convenient way -- smells like an invitation to retaliation. Angry customers might start ripping songs instead, under the theory that if the legitimate producers are going to act so unreasonably, trying to bankrupt customers for no reason other than listening on an MP3 player instead of direct from CD, then why should customers respect the copyright in the first place?

Buyers who are more scrupulously honest can retaliate by buying music from alternative sources... sources who don't object to porting the music to all devices one might carry around. Either way, I cannot see any way that such an aggressive attempt to stop consumers from consuming the product the way they want will increase sales; rather, it will accelerate the already precipitous slide in profits among companies that produce and distribute music... which honestly would be a shame, since that invariably translates into lower income for the artists, who generally have nothing to do with the legal claims of the producers.

Note that the United States Constitution, whence flows all of the law on copyright, includes the following explanation of its purpose:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (Art. I, Sec. 8)

In other words, the fundamental reason for the government to protect literary and musical copyrights is not to enrich the creator (much as I, personally, might enjoy that!), but rather the civic duty to promote literature and music among the general public. I don't see how dictating the exact format by which a customer can read or listen fits that purpose.

(By contrast, preventing people from posting unapproved copies of books or music online for anyone to download clearly fits the purpose of the preamble to the "copyright clause" of the Constitution.)

If somebody wants to purchase a book of mine, then scan it to computer -- for personal use only, not to share -- I have no objection whatsoever. Perhaps he wants to put it on his Kindle or his Sony eReader to read along with other books. I don't even care much if he passes the Kindle to a friend; that's functionally equivalent to loaning out a book after you read it. (I assume here that one can't "reverse engineer" the book and save it into an easily uploaded format; if I'm wrong, I reserve the right to reevaluate.)

I would draw the line, as I have on occasion, at making my books commercially or freely available for download without my express permission... because that could seriously cut into my royalties. That is, assuming any book of mine ever earned out and paid royalties, and assuming the publisher is honest enough to report such a momentous event -- but that's a whole 'nother rant, let me tell you!

As a general rule, the more extreme the claim by the proponent of one side of a controversial issue, the more his position deviates from common sense, the greater the loss of credibility among otherwise sympathetic third parties.

I believe the RIAA would get very broad acceptance and agreement among the buyers of CDs and DVDs -- yes, even among most teenagers -- if the RIAA merely defended the proposition that the artists who create the music and movies, and the companies that pay for producing them and making them available, should be protected against commercial pirates and against people who make everything available online for free. If they could come up with some way of preventing such pirating and bootlegging without seriously inconveniencing legitimate customers, it would probably gain widespread support.

But by trying to criminalize the ordinary way that many (if not most) people listen to the music they legally purchase, the RIAA becomes a parody of itself -- and it stokes the flames of rebellion against even the legitimate claims it makes, which get lost in all the shouting about the ludicrous and insulting court actions.

Get a grip, RIAA; your members own the copyright, but that is not a license to dictate to consumers how they're allowed to consume. This is a capitalist country, so all parties have a shared purpose: The artists want their music heard, and they want to profit thereby; consumers want to hear the music and are willing to pay for it. Why poison what could be the beginning of a beautiful relationship?

Hatched by Dafydd on this day, January 2, 2008, at the time of 6:47 PM

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The following hissed in response by: Roy Lofquist

Dear Dafydd,

Performers and artists do not get royalties from the sale or play of their works. There is a mechanical royalty and a composer's royalty. At least when I wrote a system to handle such matters.


The above hissed in response by: Roy Lofquist [TypeKey Profile Page] at January 2, 2008 7:59 PM

The following hissed in response by: Da Coyote

With honest and competent judges, this'll suffer the fate of Vista (e.g., laughter, then a quick death). However, should we get the Hillabeast in there, she'll appoint judges to the highest bidder. Then, we should worry.

The above hissed in response by: Da Coyote [TypeKey Profile Page] at January 2, 2008 8:07 PM

The following hissed in response by: Captain Ned

Look, I'm all for expansion and proper definition of fair-use rights but this case is not the one to push. Mr. Howell was dumb enough to put all these mp3 files into his Kazaa shared folder, which then exposed them to the RIAA's search tools. If they'd resided in a non-shared folder this case would never have been brought because his copyright troubles would never have been made public.

I'm all for fair use. To me, though, plonking thousands of mp3 files into one's Kazaa shared folder and then exposing that folder to the Kazaa network is prima facie evidence of intent to infringe copyright.

The above hissed in response by: Captain Ned [TypeKey Profile Page] at January 2, 2008 8:08 PM

The following hissed in response by: cdquarles


If that is so, then the artists need new agents and lawyers; for they need to renegotiate their contracts.

The above hissed in response by: cdquarles [TypeKey Profile Page] at January 2, 2008 8:10 PM

The following hissed in response by: Dafydd ab Hugh

Roy Lofquist:

Roy, by "artists," I include composers. I also include authors, for obvious reasons. I include everyone who controls copyright, whether by invention or by purchase.

Captain Ned:

I'm all for fair use. To me, though, plonking thousands of mp3 files into one's Kazaa shared folder and then exposing that folder to the Kazaa network is prima facie evidence of intent to infringe copyright.

Then go after him on those grounds alone. But unless the Post completely fabricated the story, the RIAA went beyond accusing Jeffrey Howell of sharing his downloads with other Kazaa users -- which would be a perfectly legitimate tort to pursue -- and claimed that "it is illegal for someone who has legally purchased a CD to transfer that music into his computer."

If you have a source that denies that is what they are arguing, please share; I would love to hear another side.

But if that is, in fact, one of the arguments that the RIAA makes in court... then what difference does it make that Howell may be guilty of some other offense which is properly a crime?

If a person were arrested and charged with a crime for "publishing a scurrilous attack on the president," would it mitigate things if he were also charged with passing classified documents to Spain or extorting CitiBank?


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at January 3, 2008 3:43 AM

The following hissed in response by: levi from queens

La Shawn Barber, a far sounder commentator than the WAPO, says that the Post reporter can't read, and that the brief did not say what you are commenting on. Daffyd, -- methinks you should rethink after reading this.

The above hissed in response by: levi from queens [TypeKey Profile Page] at January 3, 2008 6:09 AM

The following hissed in response by: DCM

This all sounds like a great reason to listen to classical music that is way past copyright instead of the crap that RIAA is busy trying to make money off of.

The above hissed in response by: DCM [TypeKey Profile Page] at January 3, 2008 6:16 AM

The following hissed in response by: LarryD

Musicians are better off avoiding the labels like the plague, you have to be like Garth Brooks to avoid losing money on a record deal. Why do you think the big draw musicians start their own labels?

The only benefit a record deal has for most musicians is advertising, and the labels shove all the costs onto the musicians. The musicians will come out ahead of the game if they record their own stuff and make it available for download, for free. Even today, musicians make their living from live performances.

The above hissed in response by: LarryD [TypeKey Profile Page] at January 3, 2008 7:41 AM

The following hissed in response by: LarryD

Levi, the RIAA is now sending mixed signals on ripping.

The above hissed in response by: LarryD [TypeKey Profile Page] at January 3, 2008 8:35 AM

The following hissed in response by: Insufficiently Sensitive

I read a quote from the WaPo article, much like the one shown above, and it made no reference to parking 2,000 files in a KazAA folder. So I, being a smalltime musician, composer and publisher myself, got plenty grumpy at the concept of RIAA suing an individual for simply making a backup copy of his own property. There's considerable precedent legally supporting that kind of use.

So, whence cometh this news of the KazAA folder, exposed for all the world to see? Is WaPo so disinterested in the constructive details of a story that they omitted it? Their story above seemed insistent that the crime was simply copying the CDs onto the computer. Well, look at Windows XT and its Media Player - it has an extensive section on the ripping of CDs onto you computer. Why hasn't RIAA gone after Microsoft for enabling this horrid crime? Talk about deep pockets!

I'd say to LarryD that many smalltime musicians and composers have succeeded (to some extent) at earning royalties through the system in place, depending of course on the label they sign up with. The system's not wholly broken, though it does obscenely favor the top 40 glitterati in the distribution of performance royalties for airplay. But of course those are wholly different than the royalties due composers and performers for the manufacture of mechanical recordings like CDs.

The above hissed in response by: Insufficiently Sensitive [TypeKey Profile Page] at January 3, 2008 8:37 AM

The following hissed in response by: Geoman

Let's get to the root of this frustration.

The simple way to stop piracy is to make the cost of piracy high, and the gain low. The record companies have been working diligently to do the first step, but have done virtually nothing to pursue the other.

99 cents a song for a download? That comes to 10 bucks or so for an album. Absurd. And I'm not an idiot - their cost for on-line distribution is practically zero. Let's see, I can buy a blank CD for...1 cent? Their chances of catching me ever making a copy...remote?

Since you cannot stop piracy, drop the cost and make up the difference in volume. Maybe 20 cents per song (up to five songs), 2 bucks per complete album. Sign 360 deals with artists to include live performances in your revenue stream. Cut your costs - go to all digital distribution if you have to. This is not hard to figure out.

If recorded music was very inexpensive, why would you bother pirating it? Ask yourself, how much more music would you buy, if the cost was minimal? Me, I'd own the whole catalogue - I'd spend more if I didn't feel so ripped off.

How did Radiohead do with their "pay what you want" download program? I noticed Prince is now giving away thousands of free copies of his music, and making most of his cash from live shows.

The artists are figuring it all out. Before too long they will bypass the record companies altogether.

The above hissed in response by: Geoman [TypeKey Profile Page] at January 3, 2008 9:30 AM

The following hissed in response by: David M

The Thunder Run has linked to this post in the - Web Reconnaissance for 01/03/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

The above hissed in response by: David M [TypeKey Profile Page] at January 3, 2008 9:31 AM

The following hissed in response by: LarryD

It's been some years since I saw figures on this, but it used to be the case that the performers didn't break even unless the record sold a million copies. Sure, they got an advance, out of which they paid for the costs of recording, production, and promotion of the record. They didn't actually collect any royalties until the advance was covered.

Like I said, most performers would be better off using downloads for advertising and making a living off of live performances (which is how most performers make their living anyway).

The above hissed in response by: LarryD [TypeKey Profile Page] at January 3, 2008 12:45 PM

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