RIAA Wastes Little Time Trying To Extend Interpretation Of Usenet.com Victory
from the oh-really-now? dept
Last week we wrote about the RIAA's victory against Usenet.com, noting that it really wasn't that big a deal precedent-wise, given the rather specific circumstances involved in the case. Specifically, the company Usenet.com clearly destroyed evidence, which pretty much doomed the case, and on top of that engaged in activity that was egregious in terms of making it quite clear that it encouraged illegal activity through the use of its service. But, of course, the RIAA and its friends (as per usual) are having a field day claiming this is a big deal.The RIAA, for example, put out a blog post calling it a significant victory, ignoring just how specific the case was, and stating misleadingly:
The decision reinforces two basic points: If you mindfully operate an illegal service without compensating the artists and creators whose content you advertise, the law is not on your side. Further, given the abundance of reasonably-priced legal download services, why go to an illegal one?Not quite on either count. What it actually notes is that if you destroy evidence, you're almost certainly going to lose, and if you choose to outright flaunt the law and encourage people to use your site for illegal purposes, you're probably going to be in trouble too. However, note the neat little lie that the RIAA uses in its words here, calling Usenet.com "an illegal service." That's not accurate at all. Various usenet services have been offered for many, many years and are not illegal. The problem here was that the operators encouraged people to download infringing content. The service itself was not illegal.
Meanwhile Billboard for some reason asked an entertainment industry lawyer with a long history of involvement on the entertainment industry's side on these cases to write up a report about this decision, and it's no surprise that -- while positioned as a news article, rather than an opinion piece -- this same misleading explanation comes through -- again, calling it a "significant win."
Still, there is one part of the ruling (which both articles above cite) that does seem like a major departure from previous case law, which is why I'd be surprised if it's allowed to stand. That's the fact that the judge ruled that Usenet.com wasn't just guilty of contributory infringement, but direct infringement because it maintains an "ongoing relationship" with users. It's hard to see how such a ruling lives on through an appeal. It seems that the judge was heavily influenced by the other two issues -- the destruction of evidence and the egregious encouragement of infringement -- and thus stretched the definition of direct infringement here as well. But if such a ruling is allowed to stand, it basically wipes out the Betamax "substantial non-infringing uses" ruling for any kind of online service, and also seems to go against a number of other recent rulings. That would be a plainly ridiculous interpretation of what the court said in the Betamax ruling, and if the entertainment industry really wants to hang their hat on that, they really ought to look back at the history of what happened to their industry post-Betamax. That's because the technology they fought so hard to kill helped prolong the life of the industry. The same would be true of more efficient means of internet distribution, though they refuse to consider that as a possibility.
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Filed Under: contributory infringement, copyright, direct infringement, lawsuits, precedent
Companies: riaa, usenet.com
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It's "flout" not "flaunt"
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Re: It's "flout" not "flaunt"
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Re:
In the RIAA release, at least, the order of importance is flipped. The "Destroying Evidence" part is added almost as an afterthought.
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Hmmm, maybe I haven't looked hard enough, but I can't seem to find any services selling the content I want in a lossless format for $0.25/song or $2.50/album.
What they call reasonable, I call theft
What they call the record industry, I call organized crime
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Threats
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Provide what people WANT
Forget the format, how about AT ALL. There are many many songs I have been searching for for YEARS and can only get them on out of print CD's, if they can be found at all. These arent just obscure, art-house songs, but top 40 or 100 hits including:
Naughty Naughty by John Parr
Take it Easy by Andy Taylor
Stay the Night by Benjamin Orr
Lyin to Myself by David Cassidy
Don't It Make You Feel by the Headpins
Kiss You When It's Dangerous (cant recall who)
Alibis by Sergio Mendes
Girls With Guns by Tommy Shaw
Baby Love by Regina
Now, no flames on music choice, as everyone has their own tastes, and the point here is this stuff CANT BE BOUGHT from the RIAA/Industry. It's either OOP CD (if you can find one) or file sharing. When the RIAA is providing EVERY SONG that was ever published, THEN they will have cause to bitch about sharing.
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Re:
The press release barely mentions the most significant point in passing near the end of the article. But still, Mike didn't claim they didn't mention it at all, so why you seem to feel otherwise is not clear.
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Re: Re: It's "flout" not "flaunt"
So long, Fare well, Auf Wiedershein, Good Bye, I Flit, I Float, I Flutter and I Fly. (Sorry, too much flout/flaunt talk makes me want to sing.)
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Re: Re: Re: It's "flout" not "flaunt"
I flout the law, and the law won....
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The reason Billboard asked the lawyer in question to write is that he knows a lot about the subject. Although Ben certainly has a point of view - as, I might add, you do - he did not represent anyone in this case. If you think he made a factual error, you're more than welcome to write a letter to the editor.
Rob Levine
Executive Editor
Billboard
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At least that is how I read it. Where do you see Mike calling the lawyer in question as making factual errors? All I saw was a strong bias... Mike is providing a strong bias in the opposite direction... What's the issue?
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Re: Provide what people WANT
I agree wholeheartedly, after all this is the 21st century. Every book, song, or movie ever made should be instantly available at nominal or no cost. Besides, the songs you listed should rightfully be in the public domain by now anyway.
Big Media: The Robber Barons of our time.
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There are plenty of beat writers out there that could have done a piece like this, giving BOTH sides of the coin good press, instead though, Billboard shows that it's merely a mouthpiece of the RIAA when it asks RIAA Friends to write articles and call them nothing but FACT.
Why not just drink the kool-aid?
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Re:
Indeed. I have a point of view, which is quite clear and that's why everything on this site is clearly opinion, not reporting. If you put his commentary as opinion, then I have no problem with it. But having him cover it as a reporter is quite different. A reader would then assume that he does not feel strongly towards one side. But he does. You wouldn't have me "report" on the case either, right? You might have me express my opinion on it. So why let Ben report on it when he clearly chose words that expressed his opinion in what was supposedly an objective report.
I didn't say he made any factual errors, but his coverage does lead to bias, such as calling it a "significant win" which puts more weight on it than the case deserves. Ben also downplayed the rather unique circumstances around the case.
I have no problem with him expressing his opinion on the importance of the case in an opinion piece. But as straight reporting, it seems his bias should preclude him from being presented as an objective observer, as you have done.
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Honestly it is a big deal for the RIAA. How many cases have they won of this type? While I try to stay impartial and I am certainly not on side of a failing cartel, a posting of this type lacks any value as it is repeatedly calls the publications by the RIAA misleading without supporting the position. While Mike does state his position again,
"What it actually notes is that if you destroy evidence, you're almost certainly going to lose, and if you choose to outright flaunt the law and encourage people to use your site for illegal purposes, you're probably going to be in trouble too"
He does nothing to dispute the "significance" of the case regarding the position of the RIAA. he states himself
" ..there is one part of the ruling [..] that does seem like a major departure from previous case law [..] That's the fact that the judge ruled that Usenet.com wasn't just guilty of contributory infringement, but direct infringement because it maintains an "ongoing relationship" with users."
This case is in fact very significant and should be a roll call to anyone who cares about preserving file sharing sites that and the freedom that we enjoy on the internet everyday. When a judge makes these types of decisions based on essentially non-contributory evidence destruction, we should all be worried.
Mike, you have done exactly what you accuse the RIAA of, written an opinion piece and presented it as fact. This will not help you to support your position. In addition by downplaying the significance of the case instead of addressing it directly, to me, is the absolute wrong tact and presents your position as cowardly.
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Honestly it is a big deal for the RIAA. How many cases have they won of this type? While I try to stay impartial and I am certainly not on side of a failing cartel, a posting of this type lacks any value as it is repeatedly calls the publications by the RIAA misleading without supporting the position. While Mike does state his position again,
"What it actually notes is that if you destroy evidence, you're almost certainly going to lose, and if you choose to outright flaunt the law and encourage people to use your site for illegal purposes, you're probably going to be in trouble too"
He does nothing to dispute the "significance" of the case regarding the position of the RIAA. he states himself
" ..there is one part of the ruling [..] that does seem like a major departure from previous case law [..] That's the fact that the judge ruled that Usenet.com wasn't just guilty of contributory infringement, but direct infringement because it maintains an "ongoing relationship" with users."
This case is in fact very significant and should be a roll call to anyone who cares about preserving file sharing sites that and the freedom that we enjoy on the internet everyday. When a judge makes these types of decisions based on essentially non-contributory evidence destruction, we should all be worried.
Mike, you have done exactly what you accuse the RIAA of, written an opinion piece and presented it as fact. This will not help you to support your position. In addition by downplaying the significance of the case instead of addressing it directly, to me, is the absolute wrong tact and presents your position as cowardly.
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And if you operate a "legal" service without properly compensating the artists and creators (like many of the RIAA's own subsidiaries don't) whose content you advertise, you may be able to bribe congress to pass bogus laws (using part of aforementioned artists and creators money) to make your actions "legit", the law may be on your side but the consumers you rely on for your money aren't.
I read a fair amount of history and watching organizations like the RIAA is like watching a repeat of politics in the 1750s and 1760s. If it were a movie it would be like a bad remake. Some of the details have been changed, but the same basic plot and timeline.
Seriously, I think the RIAA should read two books. First is Bill Gates: The Road Ahead where he discusses the idea of threshold - the premise where a technology or idea struggles for acceptance until it reaches a certain threshold point, at which point it becomes pretty much the de facto idea or technology. The second is a history book. Specifically the section entitled Boston Tea Party. because you can pass all the "law" you want to, but when enough people have had enough of someone's draconian tactics, and that threshold point is reached, you're efforts are doomed.
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Let musicians know that if they sign under the RIAA they are instantly boycotted.
DEATH TO THE RIAA AND ALL THAT SUPPORT IT!
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Re: Re: Re: It's "flout" not "flaunt"
Flaunt
transitive verb
1 : to display ostentatiously or impudently : parade
2 : to treat contemptuously
So, according to Webster's, flaunt also means to treat with contempt.
Just sayin'. ;)
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Re: Re:
I have not seen it labeled as such, although I admit I'm an infrequent reader . . .
Billboard is operating in a media environment where news is rapidly becoming a commodity, and we believe we have to offer readers more value for their money (many subscribe) than a simple recitation of events. So we try to employ writers who provide perspective and expertise. This isn't about opinion - it's about analysis. Given how fast news now moves online, I think that's the value we provide as a weekly publication.
You may believe that our analysis is wrong, which is fair enough. But I wouldn't call the article in question opinionated - just analytical.
Rob Levine
Executive Editor
Billboard
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Re: Re: Re:
The Techdirt group blog uses a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies’ ability to innovate and grow.
Seems like it's clearly stated to me. "Analyze" and "offer insight" mean that the authors provide their opinions (well-informed or mis-informed, educated or ignorant, etc) about the subject matter.
And you can probably guess where this is going...you used Ben to provide his opinion of what the case means...in his opinion...you can call it analysis if you want, but he provided his opinion. He may be knowledgeable about the topic, he may be well-educated, he may be very experienced...but he's no reporter.
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That's been going on around here for years. The entertainment industry seems to have quite an army of astroturfing shills.
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So does the EFF. Did you ask them to write it only to have them refuse? If not, then why not? Afraid they wouldn't put the spin you wanted on it?
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Re: Re:
Especially considering that Billboard promotes itself as a "news" site.
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Ben does NOT have a "link" to the RIAA. He has represented film companies on copyright cases. But he has no involvement in this case or with the litigants that would prevent him from writing about it fairly, and I don't see any unfair bias in the story.
Your main objection to the article seems to be that he calls the case "significant." And yet you yourself say that ". . .there is one part of the ruling (which both articles above cite) that does seem like a major departure from previous case law." I think "a major departure from previous case law" IS "significant." Isn't it? So I'm not sure what you find so disagreeable about his story.
>>>So does the EFF. Did you ask them to write it only to have them refuse?
The RIAA did NOT write this story. And, since you asked, the EFF has written op-eds for us, and we use people there as sources. I might add that, although I personally disagree with much of what the EFF stands for, I not run around chanting 'Death to the EFF' the way people here do to the RIAA. Because I'm an adult.
Rob Levine
Executive Editor
Billboard
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The people who would be infringing anyways don't go around chanting "Death to the RIAA". They couldn't give a shit.
The people who are angry are the ones who used to pay for their entertainment and have gotten fed up with all the crap.
NOT ONE CENT.
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Ben does NOT have a "link" to the RIAA. He has represented film companies on copyright cases. But he has no involvement in this case or with the litigants that would prevent him from writing about it fairly, and I don't see any unfair bias in the story.
Your main objection to the article seems to be that he calls the case "significant." And yet you yourself say that ". . .there is one part of the ruling (which both articles above cite) that does seem like a major departure from previous case law." I think "a major departure from previous case law" IS "significant." Isn't it? So I'm not sure what you find so disagreeable about his story.
>>>So does the EFF. Did you ask them to write it only to have them refuse?
The RIAA did NOT write this story. And, since you asked, the EFF has written op-eds for us, and we use people there as sources. I might add that, although I personally disagree with much of what the EFF stands for, I not run around chanting 'Death to the EFF' the way people here do to the RIAA. Because I'm an adult.
Rob Levine
Executive Editor
Billboard
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Re: Re: It's "flout" not "flaunt"
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I would like to point out that the movie industry has itself been involved in legal actions against usenet providers, so that wouldn't exactly make him disinterested. I don't know if he has been directly involved in any of those cases or not.
The RIAA did NOT write this story.
I didn't say that they did.
I not run around chanting 'Death to the EFF' the way people here do to the RIAA.
That would be "some" people. Let that important little word out, didn't you? And "some" here might indeed chant 'Death to the EFF' (all types seem to show up here from time to time).
Because I'm an adult.
Why are you reposting seemingly exact duplicates of your previous posts? That doesn't make your point any better and doesn't seem very "adult".
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The entire site is clearly labeled as such, and we most certainly have never made any pretense that we are reporters. Yet you put Ben's piece in a news section, without any indication of his associations, which are strongly to one side on copyright related lawsuits from the entertainment industry.
That's questionable.
Billboard is operating in a media environment where news is rapidly becoming a commodity, and we believe we have to offer readers more value for their money (many subscribe) than a simple recitation of events. So we try to employ writers who provide perspective and expertise. This isn't about opinion - it's about analysis. Given how fast news now moves online, I think that's the value we provide as a weekly publication.
I agree it's valuable, that's why we focus on analysis as well. But we don't label it as impartial news. You did. Again, I'd have no problem if you presented the fact that Ben has strong opinions on the subject that clearly colored the way he covered the story.
You may believe that our analysis is wrong, which is fair enough. But I wouldn't call the article in question opinionated - just analytical.
Do you always have people with strong opinions and biases (and regular paychecks from the industry they're covering) put their "analysis" in the news section?
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He has incredibly strong links to the overall entertainment industry -- and you know quite well that the MPAA and the RIAA are nearly 100% aligned on these issues.
Your main objection to the article seems to be that he calls the case "significant." And yet you yourself say that ". . .there is one part of the ruling (which both articles above cite) that does seem like a major departure from previous case law." I think "a major departure from previous case law" IS "significant." Isn't it? So I'm not sure what you find so disagreeable about his story.
No, my main objection was that he doesn't even mention the massive extenuating circumstances that led to this decision and why it's quite unique and hardly representative of a typical legal battle over these issues.
The RIAA did NOT write this story. And, since you asked, the EFF has written op-eds for us, and we use people there as sources.
Yes, an op-ed. Because it's an opinion. If Ben's piece was an op-ed that would make sense. But since you had him cover this story, and as far as I can tell it's the only piece you have on this ruling, you have done your readers a great disservice. If they are expecting impartial, non-biased analysis from a 3rd party observer, they did not get it. They got an extremely one-sided discussion which was labeled otherwise.
I might add that, although I personally disagree with much of what the EFF stands for, I not run around chanting 'Death to the EFF' the way people here do to the RIAA. Because I'm an adult.
An adult does not take a cheap shot like that. An adult does not take one idiot commenter on an open site and use a broad brush to assume that everyone challenging his position agrees with that statement.
I like Billboard. I link to it frequently, but this whole incident has me questioning if that makes sense in the future. I certainly will make sure I recognize that the authors of the pieces may have strong connections to the industry they're writing about, and thus judge the "news" reporting accordingly.
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