RIAA Uses Copyright Claim To Disappear Historical Archive Of Radio Airchecks

from the copyright-as-censorship dept

Wed, Jul 16th 2014 8:58am — Mike Masnick

Another day, another example of copyright as censorship. Today's example comes from the RIAA. TorrentFreak has the story of how the RIAA has suddenly (for no clear reason) decided that ReelRadio's historical archive of radio airchecks is problematic. ReelRadio, created (and apparently last designed) in 1996, is a non-profit organization focused on preserving music radio history. Airchecks are demo reels, showing off the talents of radio announcers, and are a pretty useful and fascinating look into the history of radio. But, as far as the RIAA is concerned, ReelRadio is nothing more than a pirate site. This is despite the fact that ReelRadio actually has a license to play the music that is often incidentally included in airchecks.

“The RIAA has determined that our service fails to meet the requirements for ‘archived programs’, which must be at least five hours in duration and may not be made available for more than two weeks. The service must also display the Title, Artist and Album of each featured song, but only while the recording is being performed,” ReelRadio President Richard Irwin explains.

And then there's this:

“The RIAA insists that we obtain permission from the copyright owners of these old radio broadcasts. Many broadcasters understand the difficulty of this requirement, since nearly all radio stations have changed ownership, format, and call letters, many times over,” Irwin explains.

“Nevertheless, we are expected to provide the RIAA with an explanation of how we have permission from radio stations that no longer exist and copyright owners who have no interest in historic recordings of their property.”

It seems like ReelRadio would have an astoundingly strong fair use defense, but actually taking on the RIAA in court is likely prohibitively expensive (and distracting), though I'd hope that the organization could find some pro bono legal support. TorrentFreak argues that the RIAA may be on "solid ground" legally, but I don't see how this doesn't pass the fair use sniff test. The purpose and character of the use clearly falls into fair use. The nature of the work (an aircheck) also clearly leans towards fair use. The amount and substantiality taken may at first look like it leans against fair use, but the recent Westlaw ruling demonstrated that when it is "necessary" to copy the entire work for the intended purpose, that also supports fair use. It's possible this could weigh against ReelRadio, given that an argument could be made that the airchecks could be "scoped" (i.e., have all music removed), but that would certainly lessen the value of the archive. And, finally, the commercial impact clearly weighs (strongly) towards fair use.

Honestly, I'm curious exactly what kind of "license" the RIAA claims to have sold ReelRadio in the first place, because now it seems like the RIAA has been ripping off ReelRadio for years, demanding payments for something that doesn't need payment. Either way, ReelRadio appears to have taken down over 1,100 of those unscoped airchecks, basically deleting them from history. Thanks, RIAA, for helping to destroy culture and hide it from public view (potentially forever) yet again.

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Filed Under: airchecks, archives, copyright, culture, fair use, history, license, scoped, unscoped
Companies: reelradio, riaa

37 Comments

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Anonymous Coward, 16 Jul 2014 @ 9:19am

It makes you wonder how many of those airchecks are actually license-able and if the RIAA itself is putting a claim to something that lays within the public domain , would it be smart for ReelRadio to make request to the RIAA any documents stating ownership/copyrights of the said programs.
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- Quiet Lurcker, 16 Jul 2014 @ 9:35am
  
  Re:
  Seems to me (non-lawyer here, so take this as common sense, not legal reasoning) that demanding evidence of copyright ownership would be a brilliant first step for ReelRadio to take.
  
  If this ever gets to a court, and RIAA can't/won't produce evidence of ownership and ReelRadio can/does produce evidence of license to play the recordings, then depending on the language in the complaint, the suit could well get dismissed or decided in ReelRadio's favor on the merits.
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  - weneedhelp (profile), 16 Jul 2014 @ 9:53am
    
    Re: Re:
    That makes perfect sense... that's why it will never play out like that.
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  - Michael, 16 Jul 2014 @ 9:56am
    
    Re: Re:
    An attorney working on this would probably get a landslide of documents from the RIAA that would take a team of lawyers a year to go through. They can bury you in paperwork.
    
    "I have a license" is an affirmative defense against copyright violation. This puts ReelRadio into the position of having to prove they have proper licenses.
    
    "You don't own the license" could be argued as an attempt to prove the RIAA has fraudulently claimed copyright protections on something that they cannot. This gets a bit tricky because I am sure at least SOME of the audio is under RIAA copyright.
    
    The problem ReelRadio is going to have is fighting an endless stream of money from the RIAA. They are totally outgunned and a case like this is going to drag on for years and cost a fortune. There is not likely to be a quick win.
    
    That is one of the unfortunate realities of our legal system, someone willing to throw away money and their reputation can make a court battle extremely expensive for the other side.
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DannyB (profile), 16 Jul 2014 @ 9:21am

But artists need to get PAID !
The artists whose voices are used in these old aircheck tests need to get paid! Without getting paid, no artists would do radio airchecks.

Think of the artists!

If not that. Think of the economy. If every use of these radio airchecks were licensed, think of how much the economy would grow!

Put in perspective like that, doesn't it now make more sense to get statutory damages for each individual instance of each use of these airchecks.
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lucidrenegade (profile), 16 Jul 2014 @ 9:22am

Even if this went to court, if the RIAA thought they were going to lose they'd drop the case. Can't have precedents being set.
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- jupiterkansas (profile), 16 Jul 2014 @ 12:47pm
  
  Re:
  But only after their opponent had spent a considerable amount of time and money preparing for a defense.
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JEDIDIAH, 16 Jul 2014 @ 9:37am

Just who do they think they are?
This sounds like none of their business. This is not the work of recording artists or record labels. Do they even have any jurisdiction what-so-ever? Or are they making a completely bogus claim?

It sounds like they are attempting a take down based on copyrights that aren't even theirs.
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Ninja (profile), 16 Jul 2014 @ 9:46am

The MAFIAA would sue a child with cancer if people sang a collective happy birthday on their birthday for "public performance". While this is not a surprise it's one more reason why copyright should be eradicated.
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- Anonymous Coward, 16 Jul 2014 @ 4:44pm
  
  Re:
  if i'm not mistaken, i think this has already happened...
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HegemonicDistortion (profile), 16 Jul 2014 @ 9:48am

1. Record messages critical of RIAA over background of snippets of songs, preferably ones of the "F**k the Man" variety, and distribute online.
2. Refuse RIAA demands to remove.
3. Argue Fair Use in suit filed by RIAA.
4. Sue RIAA for costs and damages under anti-SLAPP law, arguing that RIAA knew it was fair use but used the copyright claim to silence critics.
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- Michael, 16 Jul 2014 @ 9:57am
  
  Re:
  Do you work for the FBI?
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  - HegemonicDistortion (profile), 18 Jul 2014 @ 7:08am
    
    Re: Re:
    Sounds like an attempt to hatch one of their fake crime stings doesn't it?
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Dirkmaster (profile), 16 Jul 2014 @ 9:50am

Reform suggestion
I think that the best way to end about 99% of all this copyright bullshit is to change the requirement for a valid copyright. SOMEONE has to have licensed/bought the work in the last 5 years to be eligible for copyright. If no money has exchanged hands over the work in question in 5 years, it's public domain.

Simply, but then IANAL.
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- jupiterkansas (profile), 16 Jul 2014 @ 12:49pm
  
  Re: Reform suggestion
  Then the RIAA would just contract with "buyers" who make sure that works stay in circulation.
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weneedhelp (profile), 16 Jul 2014 @ 9:50am

Burns my ass
What is the latest P2P client the kids are using these days? Stories like this make me want to fire up a client and download everything. I don't even care if I like it or not.
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- Michael, 16 Jul 2014 @ 10:01am
  
  Re: Burns my ass
  If you did that, you would probably end up downloading some obscure band you never heard of before, like their music, go to their concert, and give the RIAA more money.
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  - jupiterkansas (profile), 16 Jul 2014 @ 12:49pm
    
    Re: Re: Burns my ass
    The RIAA doesn't get money when you go to the concert.
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Anonymous Coward, 16 Jul 2014 @ 9:52am

Thanks for being the champion of culture and history, RIAA. It's too bad it won't look favorably upon you in the future.
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orbitalinsertion (profile), 16 Jul 2014 @ 10:13am

The Real Internet and Airwave Asshats strike again. They ought to be fined for frivolous existence.
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Anonymous Coward, 16 Jul 2014 @ 10:33am

The law should be: YOU SUE. YOU LOSE. YOU PAY DOUBLE OF WHAT YOU'RE SUING FOR.
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No name@noemail_dot_com, 16 Jul 2014 @ 11:59am

RIAA
NO Problem! Just delete the site and relaunch it using a .ca address.
They'll figure you're in Canada and leave you alone.
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- jupiterkansas (profile), 16 Jul 2014 @ 12:51pm
  
  Re: RIAA
  That was my thought. Store the content in another country and just link to it.
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  - Atkray (profile), 16 Jul 2014 @ 6:33pm
    
    Re: Re: RIAA
    I keep hoping Iceland or some other country will just set up hosting and thumb their nose at the US.
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Crusty The Ex-Clown, 16 Jul 2014 @ 1:22pm

RIAA!! RIAA!!
RIAA = Racketeer-Influenced Asshat Accountants
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Anonymous Coward, 16 Jul 2014 @ 1:26pm

How about RIAA prove that the airchecks are not public domain or shut their fucking mouths?
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Nigel (profile), 16 Jul 2014 @ 3:22pm

This one deserves the pitchforks and torches for certain.
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That One Guy (profile), 16 Jul 2014 @ 3:26pm

A small silver lining
And yet again the decision to never give the RIAA, or anyone signed to them, so much as a cent if I can at all avoid it is vindicated.

Screw them, and every artists or label that supports them, the sooner they get crushed and/or starved of revenue the better.
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s7, 16 Jul 2014 @ 3:57pm

I often only find out about these cool sites AFTER they've been taken down. I would really liked to have visited and listened to some of the files. Annnnd now it's gone!
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Sheogorath (profile), 16 Jul 2014 @ 4:00pm

RIAA will shut this site down...
then one of its members will spring up with their own version. With the same licensing, of course. Such is the world of copyright corruption.
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- That One Guy (profile), 16 Jul 2014 @ 4:49pm
  
  Re: RIAA will shut this site down...
  Unlikely. They're great at destroying the creativity of others(or at least the creativity of anyone not making them money), but when it comes to actually creating something themselves... not so much.
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  - Sheogorath (profile), 17 Jul 2014 @ 2:10pm
    
    Re: Re: RIAA will shut this site down...
    Exactly. That's why they will copy others' great ideas after making sure the originator can't compete.
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slick8086, 16 Jul 2014 @ 5:48pm

I'm curious as to why they RIAA thinks they have the standing to sue anyone, unless they have proof that they supposedly represent the people in the recordings.
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PaulT (profile), 17 Jul 2014 @ 12:52am

It strikes me that rather than copyright, this is actually a licencing issue. The RIAA have issued a licence, and have either changed the licence terms recently or been lax in enforcing it. Someone's been hired to go over the actions of licence holders, and made the demand that ReelRadio abide by the letter - and since they can't do this with these checks, they have to remove them. Of course, the checks are not particularly lucrative commercially so the RIAA don't give two craps whether they're of historical interest or of public benefit, etc. - which is why non-profits like this exist in the first place.

But, the licence dispute opens up various points that have long been discussed. These kinds of things really should be under fair use, if copyright applies at all. There should absolutely be exceptions for orphaned works in cases like this, where it's unlikely that anyone would step forward to claim the copyright even if they could be found. There should also be exceptions for purely educational and archival use like this - only a complete moron would think that someone would listen to part of a song during the aircheck and suddenly not wish to buy a copy of the song played.

The only silver lining is that this provides another example of copyright abuse and why the copyright system needs an overhaul, for when pathological liars and corporate bootlickers try to pretend that free copies of their favoured corporation's latest crapfest is the only reason anyone dares oppose them. Sadly, those people are happy to think that the loss of historical recordings is OK so long as the new Bieber single gets money.
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junkyardmagic, 17 Jul 2014 @ 1:00am

riaa, the historians friend
As an amateur historian I have cause to thank the RIAA, MPAA anf that ilk. Future history will shift from searching for rare and often lost primary materials to having so much material we can't see the woods for the trees.
Here again the RIAA is brave enough to addess this problem with its scorched earth policy.
And if we were willing to give them the authority I'm sure they'd salt the earth for us too.
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- Sheogorath (profile), 17 Jul 2014 @ 2:12pm
  
  Re: riaa, the historians friend
  Here again the RIAA is brave enough to address this problem [of too much material] with its scorched earth policy.
  LOL!
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Anonymous Coward, 17 Jul 2014 @ 6:25pm

it's about time the RIAA, MPAA and others were kicked into touch instead of being actively encouraged by those in congress and elsewhere to be nothing but arse holes, restricting the world from progressing in all forms of media production and distribution!
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