RIAA Boss Says That The DMCA 'Isn't Working' Any More

from the um..-wow. dept

Tue, Aug 24th 2010 9:18am — Mike Masnick

RIAA President Cary Sherman is really doing a stunning job every time he opens his mouth this week. First, as noted earlier, he may have hurt the RIAA's chances in a Supreme Court case by directly stating the exact opposite of the RIAA's position in that case. Then, he got on stage at a "tech policy" shindig in Aspen Colorado, and said (apparently with a straight face) that "the DMCA isn't working for content people at all." Wow.

Now, this deserves some background. The key parts of the DMCA were almost entirely drafted due to pressures from the RIAA, who wanted this law passed badly. The RIAA has been one of the biggest supporters of the DMCA all along. The one tiny bit they don't like was the part put in at the request of service providers to get them to stop fighting the DMCA: a basic safe harbor that makes it clear that liability should only be applied to individuals or organizations who actually infringe on copyrights, not service providers whose tools are used by third parties. This isn't some revolutionary idea. It's basic common sense application of liability on the party that actually breaks the law. Even that was severely tilted in the RIAA's favor by requiring a notice-and-takedown provision, that almost certainly violates the First Amendment.

But much of the DMCA was an RIAA wishlist of the absurd -- such as the anti-circumvention clause. In fact, for years, tech companies warned about problems with the DMCA. There were a few attempts by Rep. Rick Boucher to reform the DMCA to get rid of the serious problems with it that totally favored the RIAA in often ridiculous ways, but the entertainment industry vigorously fought against these changes.

However, nothing ever came of that, and Boucher hasn't pushed to reform the DMCA in quite a few years at this point. Last I heard, the feeling was that both the technology folks and the entertainment industry folks had decided that reopening the DMCA was a can of worms that was far too dangerous. Tech companies feared losing the safe harbor protections, while the entertainment industry feared losing pretty much anything, such as some of the anti-circumvention clauses.

However, with the entertainment industry having such a "good friend" in Joe Biden, it apparently feels confident enough to try to reopen the DMCA to get rid of the one part it never liked. This is really quite stunning. The DMCA was a bill that was designed for the RIAA. It had one tiny safe harbor, and for Sherman to now attack that is a sickening attempt to twist the DMCA even further in favor of one industry, against everyone's best interests.

Even worse, his rationale for this is just laughable:

"You cannot monitor all the infringements on the Internet. It's simply not possible. We don't have the ability to search all the places infringing content appears, such as cyberlockers like [file-hosting firm] RapidShare."

Read that again. So because the RIAA is unable to monitor, others should be forced to do it for them, or face giant fines. Sherman admits that it's impossible to monitor, but in the same breath demands laws that will punish other companies for failing to do the impossible, while taking all of the responsibility off of the companies he represents. To make such a statement takes such incredible guts that it's amazing the room didn't burst out in laughter.

Of course, what this is really about is that Sherman and the RIAA are posturing for a three strikes law in the US. For two years now, they've tried (and failed) to get ISPs to agree to three strikes in the US. So, Sherman is kicking off a campaign to try to pressure ISPs to agree... or to get politicians to introduce a bill.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: cary sherman, copyright, dmca
Companies: riaa

41 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

fogbugzd (profile), 24 Aug 2010 @ 9:32am

Bye Bye Biden
RIAA may see this as their last chance to get things through Congress with the support of Joe Biden. The political scuttlebutt is that Obama will dump him on the 2012 ticket. He has been nothing but a liability to everyone except the entertainment industry. He managed to get key justice department positions filled with their lackeys, and that has done a fair amount of damage that Democratic insiders are starting to realize.

RIAA's best hope may be in the lame duck session of Congress or in next year's off-year elections. On the other hand, some Democratic leaders are realizing the backlash against the recording industry in Europe. The last thing they need is for the democratic Party's pro-RIAA stance to become an election issue in 2012.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 24 Aug 2010 @ 9:41am

Re: Bye Bye Biden
"The political scuttlebutt is that Obama will dump him on the 2012 ticket."

I so want this to be true, but [citation needed]
[ link to this | view in thread ]
Anonymous Coward, 24 Aug 2010 @ 9:45am

Re: Bye Bye Biden
"The political scuttlebutt is that Obama will dump him on the 2012 ticket."

Yes, because Obama, with his ACTA secrecy, is so much better.
[ link to this | view in thread ]
Hephaestus (profile), 24 Aug 2010 @ 9:51am

Watching these people the term self defeating comes to mind
Everytime I think these people can't do anything more self defeating, they do something that shows me the depth of their stupidity. If they are pushing for DMCA reform they are going to show how badly this DMCA takedown system is being abused. The last thing they want on the congressional record is a list of quarter million takedowns that should never have occured.
[ link to this | view in thread ]
R. Miles (profile), 24 Aug 2010 @ 9:53am

Re: Bye Bye Biden
RIAA may see this as their last chance to get things through Congress with the support of Joe Biden.
With the newly discovered fact the internet is the worst thing since the atomic bomb, RIAA now has even more fuel to open the DMCA dispute.

Truthfully, I hope it does because the GAO report and the recent lifting of other copyright-related issues should be enough to justify the DMCA is one law which should be repealed.

This may get many to question copyright's primary responsibility or challenge its effectiveness to begin with.
[ link to this | view in thread ]
average_joe (profile), 24 Aug 2010 @ 10:05am

First, as noted earlier, he may have hurt the RIAA's chances in a Supreme Court case by directly stating the exact opposite of the RIAA's position in that case.

I'm not sure where you're getting this idea from. As I pointed out in the comments after your earlier article today, the plaintiffs never made the argument that you seem to think they made.

Nor did they need to. There's simply no need to show an intent to infringe:

"A defendant’s intent to infringe is irrelevant under the law as far as proving that actionable infringement took place." Chavez v. Arte Publico Press, 204 F.3d 601, 607 (5th Cir. 2000).
[ link to this | view in thread ]
romeosidvicious (profile), 24 Aug 2010 @ 10:13am

Re:
Intent to infringe relates solely to the damages allowed and not to whether the infringement is actionable. You are arguing something that hasn't been stated. Innocent infringement provides much lower damages which is why it's important in the case mentioned.
[ link to this | view in thread ]
Anonymous Coward, 24 Aug 2010 @ 10:22am

Re:
No one's disputing that actual infringement took place; they're disputing whether or not she was an "innocent infringer." The RIAA has been saying she's not because of notices printed on CDs she never saw. Her defense has been arguing that she didn't know it was infringement and so, despite infringement being committed, she is an innocent infringer. The RIAA's position is that she had to have known (and thus not be "innocent" in that sense), and Sherman went out and said that no one knew (and so should all be "innocent" in that sense).
[ link to this | view in thread ]
interval (profile), 24 Aug 2010 @ 10:23am

Re: Re: Bye Bye Biden
The other side of this argument is, of course, this will be seen as an admission that Biden was in fact a liability (whether he was or not), often a strong argument to keep a liability on the ticket.
[ link to this | view in thread ]
Anonymous Coward, 24 Aug 2010 @ 10:44am

Re: Re: Bye Bye Biden
Political blogs have had a lot about this. One citation is http://online.wsj.com/article/SB10001424052748704388504575419421407147424.html?mod=googlenews_wsj
[ link to this | view in thread ]
Anonymous Coward, 24 Aug 2010 @ 11:10am

Re:
And as it was pointed out to you.

The CD argument is good but has its flaws too.

Why it is that a different media license is being used to judge anything?

CD licenses are equal to radio licenses? or to internet radio licenses or to licenses on itunes?

At the time there was no licenses on the internet, there were no stores on the internet selling music so there was no published warnings for the media in question was there?

What was there and the president of the RIAA confirmed was nothing, people just didn't know about and never came across any license that stated otherwise.
[ link to this | view in thread ]
average_joe (profile), 24 Aug 2010 @ 11:15am

Re: Re:
I'm pointing out that the plaintiffs never made an argument about her intent either way. The burden was on Harper to prove that she was an innocent infringer, and she proved that to the district court's satisfaction. The plaintiffs didn't contest that. The plaintiffs argued that as a matter of law the innocent infringer defense was foreclosed by 17 U.S.C. § 402(d). The district court rejected that argument.

In fact, this is where the proceedings got interesting. The plaintiffs were only seeking the statutory minimum of $750 per infringement. The district court accepted the defendant's innocent infringer defense and awarded the plaintiffs $200 per infringement. The plaintiffs said they were happy with this, but reserved the right to appeal the issue of whether or not the innocent infringer defense was foreclosed or not should Harper appeal the decision. Well, Harper did appeal the decision and true to their word the plaintiffs cross-appealed on the innocent infringer defense issue. The plaintiffs won the appeal, and the Fifth Circuit awarded them the $750 per infringement they were originally seeking.

So here's how Harper played it: She turned down the plaintiffs' offer of settling for $4,000. On summary judgment, the district court awarded plaintiffs $7,400 ($200 per infringement). On appeal, the Fifth Circuit awarded plaintiffs $27,750 ($750 per infringement). She just kept making things worse for herself.
[ link to this | view in thread ]
average_joe (profile), 24 Aug 2010 @ 11:17am

Re: Re:
The plaintiffs' position wasn't that she knew or didn't know, their position was that it didn't matter whether she knew or not.
[ link to this | view in thread ]
Ben (profile), 24 Aug 2010 @ 11:22am

Hypocritical
Lets apply the same logic to the car industry or the gun industry. I use a Glock to shoot someone and then high tail it in my Toyota Prius. Under the RIAA logic, it's their fault the crime was commited. Punish Glock and Toyota!!!

Punish Macys for selling me the balaclava.

Punish kellogs for making the Frosties I ate for breakfast while you're at it. Without their sugar rush I wouldn't have been able to run from the robbery.
[ link to this | view in thread ]
average_joe (profile), 24 Aug 2010 @ 11:23am

Re: Re:
You are right though, I wasn't being very clear about that before. Thanks.
[ link to this | view in thread ]
Hephaestus (profile), 24 Aug 2010 @ 11:40am

Re: Re: Re:
"The burden was on Harper to prove that she was an innocent infringer"

That just seems wrong, shouldn't she be assumed innocent and RIAA prove she had knowledge that it she was infringing?
[ link to this | view in thread ]
average_joe (profile), 24 Aug 2010 @ 11:52am

Re: Re: Re: Re:
You have to realize that innocent infringer defense is raised after it's already been determined that the defendant is an infringer. The purpose is for the infringer to mitigate the damages they will have to pay. Once a court determines that the defendant is an infringer, the burden is on the defendant to prove that they are an innocent infringer. It works the other way with damages for willful infringement. In that case the burden is on the plaintiff to show that the defendant was willful. So if the defendant wants to pay less in damages, the defendant has to show why they qualify to do so, and if the plaintiff wants to collect more in damages, the plaintiff has to show why they deserve to get more.
[ link to this | view in thread ]
Anonymous Coward, 24 Aug 2010 @ 12:39pm

Re: Re: Re:
That's stupid.
[ link to this | view in thread ]
chris (profile), 24 Aug 2010 @ 12:51pm

Re: Hypocritical
Lets apply the same logic to the car industry or the gun industry.

the reason the safe harbor provisions are a pain to the RIAA is that ISP's actually have money, whereas individuals do not:
http://www.techdirt.com/articles/20100713/17400810200.shtml
[ link to this | view in thread ]
nasch (profile), 24 Aug 2010 @ 1:06pm

Re: Hypocritical
Mmm, baklava. Wait, what?
[ link to this | view in thread ]
Danny, 24 Aug 2010 @ 1:32pm

Re: Watching these people the term self defeating comes to mind
Not if they tread carefully. Remember we are in a country where the people who f'd up the economy got more money the people who got hit hard by it.
[ link to this | view in thread ]
Hephaestus (profile), 24 Aug 2010 @ 1:44pm

Re: Re: Watching these people the term self defeating comes to mind
"Not if they tread carefully."

Name one single thing they have done right since napster. Everything backfires and makes things worse for them.
[ link to this | view in thread ]
Danny, 24 Aug 2010 @ 1:44pm

Re: Hypocritical
Lets apply the same logic to the car industry or the gun industry. I use a Glock to shoot someone and then high tail it in my Toyota Prius. Under the RIAA logic, it's their fault the crime was commited. Punish Glock and Toyota!!!
Got it in one. As chris says that is the exact reason the RIAA wants to get rid of safe harbor provisions.

In your example of shooting someone with a Glock and fleeing in a Toyota Prius. If that person you shot was my spouse safe harbor provisions are what keeps me from suing Toyota, Glock, the place where the shooting took place (assuming it was on someone's property or maybe sue the city if it was on public property) and everyone else in between. Because more than likely any one of them have more money than you.

The RIAA wants to hold as many parties as possible responsible for infringement. That way they will have an infinite source of "revenue". The ISPs, the users, the makers of the pc that the infringement took place on, the makers of any networking equippment involved, the owners of the property you live on (if you rent), etc... In short its similar to how when a group of friends get caught doing something but the one true culprit won't fess up. Turn them all against each other and the culprit will float to the top. The RIAA hopes getting ability to take anyone and everyone to the clearners for "damages" will scare them all into doing their work for them.

In short the RIAA would make all the gain while all the responsibility would be on everyone else's shoulders.
[ link to this | view in thread ]
Anonymous Coward, 24 Aug 2010 @ 1:59pm

"We don't have the ability to search all the places infringing content appears, such as cyberlockers like [file-hosting firm] RapidShare."

Yes, so everyone else is supposed to be better able to know what infringes on the RIAA's copy protections than the RIAA itself. Interesting.
[ link to this | view in thread ]
Danny, 24 Aug 2010 @ 2:03pm

Re: Re: Re: Watching these people the term self defeating comes to mind
Oh I should have explained that better. By tread carefully I mean "tread carefully". In the sense that they will make sure their safety net is in place before trying to finish twisting the DMCA to their will. And by safety nets I mean the politicians that they have bought and paid for who will always be there to do pretty much whatever they want.

You're right if they were smart they would have taken proper advantage of digital distribution instead of fighting kicking and screaming for the last 15 or so year. But they weren't smart.
[ link to this | view in thread ]
Anonymous Coward, 24 Aug 2010 @ 2:17pm

Re:
What's truly hilarious is that this is the riaa either admitting they are incompetent or that the policy they want put in place is unreasonable.

Either way you look at it they failed hard.
[ link to this | view in thread ]
The Devil's Coachman (profile), 24 Aug 2010 @ 2:37pm

The RIAA and their attorneys should be burned alive
Considering what a fat bunch of greedy pigs they are, they could probably fuel an electric power plant for generations to come. Once you light off pigs like them, they'll just keep burning and burning and burning. If they have their way, the public will have to pay them every single time anyone listens to anything, and if you sing anything under their dominion aloud, even in the shower, you will be fined and jailed.

If I had a neighbor who was an RIAA lackey, I would make their lives such a living hell that they would flee in the middle of the night, leaving their goods and pets behind. Anyone who works for the RIAA is a subhuman piece of syphilitic donkey dung, and anyone who defends them is a maggot on the dung. Any questions? Die, RIAA, die! BTW, I don't infringe, but these turds make me think that maybe I should start. Arrogant pieces of shite!
[ link to this | view in thread ]
ECA (profile), 24 Aug 2010 @ 3:04pm

IF'
If these companies ON TOP of companies ON TOP of companies, would generalize and distribute a good product at a reasonable price, they wouldnt need 1/2 the Lawyers or copy protection.

Part of the problem is the RIAA is PART of the system of Pennies here, pennies THERE, and everyone wants more pennies.

If they dropped all the lawyers involved and copy protections, prices could drop in 1/2. Make it a straight forward Corp to deal with. Not 6+ separate ones.
[ link to this | view in thread ]
Jayce, 24 Aug 2010 @ 5:37pm

Well, its kinda understandable
"To make such a statement takes such incredible guts that it's amazing the room didn't burst out in laughter."

You have to remember. The entirety of the government only has one brain to share between them. You can't expect them to use it all at once.
[ link to this | view in thread ]
Bill Rosenblatt, 24 Aug 2010 @ 6:51pm

Glad to see you finally get it
Mike,

Great, now you understand the content industries' strategy of changing copyright law so that ISPs get real liability instead of the notice-and-takedown escape hatch.

Now please think about how this applies to the Viacom/Google litigation and its route through the appeals process. Maybe now you'll understand what I was trying to explain to you weeks ago.
[ link to this | view in thread ]
average_joe (profile), 24 Aug 2010 @ 9:49pm

Re: Re:
I agree that there's an argument to be made along those lines, I just don't think it's compelling enough to win in court. I think that if things are going to change here, Congress will need to change the law, not the courts.
[ link to this | view in thread ]
Andy (profile), 25 Aug 2010 @ 12:11am

Talk about wish fulfilment!
From Mike's text: "The key parts of the DMCA were almost entirely drafted due to pressures from the RIAA, who wanted this law passed badly."

I don't think we can doubt they got exactly what they wanted. The law was certainly passed badly!

Sorry, couldn't resist that play on words.
[ link to this | view in thread ]
drm made me into a pirate? (profile), 25 Aug 2010 @ 1:54am

DCMA RAPES freedom [to tinker]
MY TOS supersedes all others
[ link to this | view in thread ]
drm made me into a pirate? (profile), 25 Aug 2010 @ 1:54am

DMCA RAPES freedom [to tinker]
.

MY TOS supersedes all others

.
[ link to this | view in thread ]
Bill Rosenblatt, 25 Aug 2010 @ 4:45am

Re: Talk about wish fulfilment!
I think it's important to understand that DMCA 1201 took its current form not just because of the content industries pushing for it.

The law was essentially a back-room deal between the content industries and telcos (there wasn't a tech/Internet lobby per se back in the early 90s when this took place). The telcos basically said "We'll agree to accept anticircumvention as long as we have no liability for it." The way the anticirumvention provisions are written, the liability is strictly on the hacker and not on the provider of what has turned out to be bad DRM technology that's bad because it was designed first and foremost to be cheap to implement. And notice-and-takedown (DMCA 512) was designed to give ISPs a cheap-and-cheerful escape hatch from infringement liability. In other words, the law was crafted to make it as easy and cheap as possible for the network service providers to escape the infringement liability that the content industries want so badly to establish.

I am not a fan of DMCA either, but I think it's important to understand that the tech industry was not the pure innocent in this processs that everyone around this blog (and elsewhere) makes it out to be. It takes two to tango.
[ link to this | view in thread ]
Hephaestus (profile), 25 Aug 2010 @ 6:56am

Re: Re: Re: Re: Watching these people the term self defeating comes to mind
"You're right if they were smart they would have taken proper advantage of digital distribution instead of fighting kicking and screaming for the last 15 or so year. But they weren't smart."

In this case they require a total and complete change in the way they do business, something that adds valus to the deal with artists. The only things they have now is the ability to promote and their music catalogs. The promotion piece is slowly being figured out with out them. Their catalogs value is slowly going to zero as with all content. All the new forms of business models require actually work and tailoring to the artists. They won't work for large corporations where they use an assembly line for artists and content.

The solution is to grab as much profit as is possible in as short a time as is possible. Then cut your losses and get out. A perfect example of this is GE's sale of NBCU to comcast. GE makes great business decisions and they don't rely on emotion to do it. If you look at the trends with no emotion and chart out what is happening you see the failure of big content in about 10 years (that varies based on industry newpapers, record labels, magazines, books, video). GE knows this and is going to milk comcast for every penny they can. The record label execs should do the same thing and "corporate raid" their own companies to maximize their profits, before they actually have to hold a fire sale and make nothing.
[ link to this | view in thread ]
nasch (profile), 25 Aug 2010 @ 9:20am

Re: Glad to see you finally get it
So are you saying ISPs and other service providers should be liable for the actions of their customers/users?
[ link to this | view in thread ]
nasch (profile), 25 Aug 2010 @ 9:23am

Re: Re: Talk about wish fulfilment!
Your description is accurate, but I don't see how that leads to this conclusion: "I think it's important to understand that the tech industry was not the pure innocent in this processs". The part of the DMCA that the tech industry pushed for is the only good part, and the bad parts are because of the entertainment industry. So who should we blame for the DMCA? The people who pushed for the good parts, or the people who made that push necessary by asking for all the bad parts?
[ link to this | view in thread ]
JC, 25 Aug 2010 @ 10:28am

Re: Re: Talk about wish fulfilment!
Most of your post has a logical fallacy. Service providers shouldn't even need an "escape hatch." What would they be escaping from? Service providers are not infringing anyones content.

The safe harbors only needed to be included in the DMCA because simple, basic, kiddie logic is incomprehensible to people who are stuck on jury duty. You can't just pick someone who has a lot of money and sue them for something done entirely by someone else.
[ link to this | view in thread ]
DannyB (profile), 25 Aug 2010 @ 11:50am

Did I hear that right?
Since it is impossible to do, someone ELSE should be required to do it for us.
[ link to this | view in thread ]
Hephaestus (profile), 25 Aug 2010 @ 1:33pm

Re: IF'
"If they dropped all the lawyers involved and copy protections, prices could drop in 1/2. Make it a straight forward Corp to deal with. Not 6+ separate ones."

That is one of the big failure points in their industry. To many layers, everyone taking a cut, no one wanting to compromise, and everyone wanting to expand in a diminishing market. RIAA, the collection agencies, and the labels are different forms of cancer in the same industry.
[ link to this | view in thread ]