Earlier this year, we wrote yet another attempt (and there have been a few) to set up a system for "selling used mp3s." It seems like a pretty pointless idea for a few reasons. First, why bother? Second, all the convoluted and annoying systems the company puts in place to try to make this "legal" just makes it annoying and useless. But, third, as we noted at the time, there was no way that the RIAA would let this happen.
And, indeed, the RIAA is now demanding that ReDigi stop allowing for the sale of used mp3s. I'm having trouble thinking which is the dumber idea: trying to set up a convoluted and useless marketplace for selling "used" MP3s (something almost no one will want to do), or the RIAA even bothering to call extra attention to ReDigi by threatening and potentially suing.
A tip to the RIAA: this was dumb. Almost no one cares about or was using ReDigi anyway. It would have just faded away. By threatening, you bring them back into the limelight. On top of that, you (yet again) make yourselves look like clueless luddites who wish to wipe out the First Sale doctrine. Even worse, you could end up in a lawsuit that reminds you that the First Sale doctrine does exist, and is recognized by the courts, and you could establish a precedent that "reselling" used digital content is legal. So why bother, other than this bizarre and shortsighted infatuation with the idea that if anyone, anywhere benefits without you getting a slice, it must be illegal?
We've discussed how E-PARASITE/SOPA is really an attempt by the entertainment industry to rewrite the DMCA, even though they pretend otherwise. However, it appears that the RIAA is now comfortable with admitting that's the real goal of its legislative agenda these days. The RIAA's litigation boss, Jennifer Pariser, famous for making highly questionable statements under oath in trials against people accused of sharing music they love, is now claiming that the DMCA wording is great, but that the interpretation by the courts has just been dreadful -- so Congress should clarify that and slap the judges down. As reported by Greg Sandoval at CNET:
"I think Congress got it right, but I think the courts are getting it wrong," Pariser said during a panel discussion at the NY Entertainment & Technology Law Conference. "I think the courts are interpreting Congress' statute in a manner that is entirely too restrictive of content owners' rights and too open to [Internet] service providers.
"We might need to go to Congress at some point for a fix," Pariser added. "Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions."
This is pretty typical of the RIAA. The one part of the DMCA that they fought tooth and nail when it was put together was the service provider safe harbors. However, it was a key part of the negotiations with the tech industry, as part of the tradeoff to get the rest of the (dreadful) DMCA. The RIAA has always hated the safe harbors. It's just so much easier to make third party service providers liable. It's easier to sue service providers rather than fans.
So now they're rewriting history, pretending that the safe harbors weren't intended to do what they do. This is a joke. If you talk to folks on the tech side who negotiated the safe harbors, this was exactly how the safe harbors were meant to work. If anything, some of those involved are upset that the safe harbors aren't even stronger (as they were in the CDA for non-intellectual property issues). What Pariser and the RIAA really mean when they mock judges for their rulings on the safe harbors is that they never liked the safe harbors in the first place, so the best way to get what they always wanted (i.e., no real safe harbors) is to pretend that it's all a big "misinterpretation" that needs clarification from Congress.
Rafe Needleman put together a fascinating roundtable discussion over SOPA and PIPA involving Larry Downes and Mitch Glazier. Downes, you may recall, wrote an excellent article highlighting the myriad problems with SOPA. Glazier on the flip side, once (while he worked for Congress) sneakily changed copyright law without anyone noticing, to screw over musicians. Thankfully, his handiwork was undone after a bunch of musicians noticed and complained... though, by that point he had left to become a high-paid lobbyist for the RIAA -- where he now holds the number two slot. He's there to argue for the record labels, not artists, of course.
Glazier makes a bunch of interesting, if slightly incredible, statements during the 40 minute discussion -- starting with his claim that the ProIP Act (from a few years ago, not to be confused with PROTECT IP from this year) allowed for the government to seize "criminal" websites. That's not clear at all. While it is true that the government is relying on the text of ProIP for such seizures -- the text in question was clearly designed to cover the seizure of things like machinery to print DVDs/CDs. There are significant legal questions, currently being heard in court, over whether or not ProIP actually allows the government to seize websites as it has.
Then they get into the meat of things, with Glazier bizarrely and incorrectly claiming that PIPA and SOPA are very similar. That's pretty shocking since the two bills are extremely different in important ways. And while he notes at the beginning that the reasons for this new law were to apply what was in the ProIP bill to foreign sites, he doesn't note that SOPA applies to domestic sites as well (something that SOPA supporters keep ignoring). He also claims that the exceptionally vague and broad definitions found in SOPA as to what constitutes "dedicated to theft of U.S. property" are nothing new or special -- saying the first three come from the DMCA's anti-circumvention provisions (a hugely problematic part of the current DMCA), and the latter two come from recent Supreme Court rulings. That's an interesting take... and one that's not quite true. For example, he claims that the inducement definition comes from the Grokster ruling, but that's not true. The standard in the bill is much broader. Now, it's true that the RIAA has pretended that the definition in the bill is what the Supreme Court said in Grokster, but the Supreme Court laid out some specifics that are not found in the bill.
Then there's a stunning bit of ridiculousness. Downes points out the problems of letting private parties take down entire sites based on a mere portion of a site being infringing, and Glazier claims this is wrong, and that SOPA is only about enforcement -- such that it means that "the remedy is limited" to a "portion" of the site. "So instead of saying, if a portion of the site is illegal, the whole site gets taken down, it's the opposite. A court can say if a portion of a site is illegal, only that portion of the site can come down." Now, that's interesting. It's also not true. What Glazier is referring to is the fact that the under the part involving the Attorney General, a court can order just a portion of the site to be blocked (but only to subdomains, not subdirectories), but the private right of action allows for any copyright, trademark, publicity right or patent holder to completely cut off payment or ads to a site based on an accusation. You don't "cut off payment processors" to just a portion of a site.
But note the disingenuous trick. When challenged on the wider impact of the law, focus on one narrow part of it. Sneaky.
Next up Glazier claims that the going after payment processors and ad providers isn't a secondary liability issue, because there's no secondary liability on those guys. Of course, try telling that to Triton Media, an ad provider who the entertainment industry sued for providing ads on sites they felt were "rogue sites." But, again, Glazier is being disingenuous by looking at the wrong thing. The concern isn't the secondary liability directly on the ad or payment players, but on all of their clients. It's over the fact that any site can have all ways to make money cut off with no court review. That's ridiculous.
Rafe then asks Glazier to explain how much piracy has "cost" the "music industry" and Glazier again is misleading (seems he makes a habit of that). First, he only talks about the recording industry, which has been cut in half, rather than the actual music industry (which continues to grow). But he seems to attribute that entirely to piracy, rather than massive infrastructure and market changes. He notes that the number of major labels has dropped from six to four... but that's because of mergers. Whether there's any connection there to "piracy" seems pretty questionable. Then he notes less investment in artists. Yes, by the major labels. But that leaves out that more and more artists don't need the majors to make money any more (whereas in the past they didn't have much choice). Thankfully, Rafe calls him on some of this -- noting the market changes and that unauthorized listens to songs might not be actual losses.
After Glazier admits that they don't really have good data on how much unauthorized use represents real losses, Larry jumps in and points out that this is a key point -- and that we shouldn't be legislating before we have such data. He notes that SOPA requires the IP Czar to study the issue and come up with some data, but rather reasonably questions why we're shooting first, and asking questions later.
The conversation then shifts to the DNS blocking aspect of the debate, a point on which Glazier really shows how to spin with the best of them, claiming that the (significantly worse) SOPA bill was a reaction to the tech industry's concerns with PIPA. That is, in Glazierworld, the much broader remedies in SOPA, which aren't limited to just DNS, are because his industry and the folks who wrote the bill heard the tech guys saying, "DNS blocking is bad," and with SOPA are saying, "okay, well, we give you broad latitude to block something else, if you'd like -- such as IP addresses directly." That this actually makes the problem even worse, and fragments the internet even further, apparently does not occur to Glazier. This is why we shouldn't let non-engineers write laws that impact technology, by the way. Downes properly points out how ridiculous this is, in that it leaves the court to decide if anyone is doing the required blocking in a "reasonable" manner -- and as we've learned from the Great Firewall, when you have such ambiguity, service providers have every incentive to over-block. That's what the RIAA/MPAA are hoping for, of course, but it should horrify anyone who understands how innovation works.
Glazier then makes sure to bring up the industry's favorite comparison: child porn, claiming that DNS blocks are common to block child porn. Of course, that's not quite true, and the CDT v. Pappert case highlighted how we, in the US, do not set up systems for over-blocking, even in cases of child porn. When Rafe challenges him on using "child porn" as an example, Glazier goes all patriotic, talking up the importance of the rule of law and whether or not we believe the rule of law should apply on the internet.
That, of course, is hogwash. Of course the rule of law applies on the internet. No one's arguing that. What we're arguing is that in their desperate attempts to bring back a mythical world that the record labels think existed twenty years ago, they're seeking to massively change the rule of law such that it hinders all sorts of important innovations that everyone agrees should be perfectly legal. The RIAA and their pals at the MPAA are massively overreacting, as they have a long history of doing. The "rule of law" argument was used against the VCR and the mp3 player -- both of which these industries declared should be illegal, because "the rule of law" must apply. So now they're overreacting to the entire internet. Perhaps we should recognize their long history of crying wolf, and maybe, just maybe, not believe them this time.
Downes points out the ridiculous of the private right of action notices... and we learn the SOPA defenders key line in response to that. Glazier says that since payment providers and ad networks have a financial incentive to keep making money from customers, they're unlikely to cut customers off. Apparently Glazier hasn't paid attention to the DMCA. Under the DMCA, service providers also have incentive to keep their users and customers. Yet, to avoid any liability or even the threat of being dragged into court, their first move is to simply take things down. You can bet that will happen here. Of course, this is emblematic of how the RIAA/MPAA folks view these types of issues. They think that as long as cash is being made, service providers will want to continue. But they underestimate the hassle and the fear of being dragged into litigation. To avoid any sort of liability, the ad providers and the payment processors are very likely to simply cut off sites that are accused -- especially if they're accused multiple times. Why bother with the hassle and the risk?
Towards the end of the interview, Glazier falsely claims that the tech industry was either at or invited to the table to negotiate on SOPA. This is false. Yes, the Chamber of Commerce and the MPAA found a few "friendly" (but misguided) tech companies like Monster Cable (who claims that eBay, Craigslist, Costco and Sears are all "rogue" sites) and GoDaddy (who itself could fit under the definition of a "rogue site" in the bill), so they could pretend tech was at the table. But, considering that some of the largest tech industry groups -- CEA, CCIA and NetCoalition were asking for a seat at a table for a while, and were denied, Glazier is, once again, being entirely disingenuous with his claims.
On the whole, Glazier's defense of SOPA isn't too surprising, but it's really misleading, and it's important to see how they mislead, because otherwise people may get fooled into believing the bill is not as disastrous as it really is. Throughout the interview, Mitch continued to talk about going after foreign sites, never acknowledging how SOPA isn't just about foreign sites, and even PIPA puts liability on domestic sites. If it's really true that just a few foreign sites are "the problem," (and they've yet to establish how real "the problem" is), then why craft such broad laws with vague definitions that will surely have unintended consequences... unless the plan all along is to stretch the boundaries of such a law?
One of the favorite misleading tricks of supporters of more draconian copyright laws is to put out a report each year about the "size" of "the copyright industries," by the "International Intellectual Property Alliance" (a trade group made up of other trade groups, including the RIAA, MPAA, BSA, ESA, NMPA and others) There are numerous problems with this report. First off, it makes the ridiculously wrong assumption that "the copyright industries" exist solely because of copyright law. That is, they use the size of the numbers to suggest that stronger copyright law is necessary. Yet that's ridiculous. They present no evidence that the industries would be any different size, if copyright law were weaker or stronger. They simply present that as the obvious implication. Furthermore, their definition of what makes up "the copyright industries" is insanely broad, and tends to include plenty of operations who don't actually want stricter copyright laws at all. For example, I'm sure Techdirt technically qualifies under whatever measure they're using. After all, we're a publisher, so technically we're in "the content industries." Yet I can tell you right now that exactly zero percent of our revenue is due to copyright law. That's true of many, many of the companies included as being in "the copyright industries."
Unfortunately, this myth persists that if you add up all of the broadly defined "content industries," it somehow shows why you need stricter copyright. But that makes no sense. If they actually showed a direct causal relationship -- or even any evidence that copyright policy directly drives aggregate revenue, they might have some argument. But they don't go near such things. But it doesn't stop grandstanding around the issue. With the latest release, Senators Sheldon Whitehouse and Orrin Hatch, along with Reps. Bob Goodlatte and Adam Schiff, welcomed the various lobbyists who produced this report (i.e., the heads of the ESA, NMPA, RIAA and MPAA) to cheer on the report and use it to falsely pretend this is proof that more draconian copyright laws are important.
This makes no sense and, frankly, it insults the intelligence of just about everyone, to pretend that total revenue within an industry is the automatic indicator of how policy should be determined for that industry. You determine policies based on deltas, not absolutes.
It gets even worse, when you look at the actual report, which shows the industries in question are doing tremendously well. In fact, as many are noting, the report actually appears to undermine the industry's entire argument that "piracy" is somehow decimating their businesses. Instead -- even through a recession, these companies are making a ton of money, and there's no evidence of significant job losses.
It's a pretty weak move when our Congressional leaders to then take those points, that simply do not support the need for more copyright law in any way... and then use it to support such policies. Each year, of course, CCIA puts out a report that shows that if that's how you're going to calculate "the copyright industries," it's only fair to use the same methodology to calculate the industries that are built from "exceptions to copyright law," which turns out to be significantly larger than "the copyright industries." So if any of the elected officials praising this latest report are intellectually honest, they should actually be advocating for weaker copyright laws. After all, the same methodology shows that exceptions to copyright law contribute much more to the economy than copyright law itself.
From the moment the so-called "voluntary" six strikes agreement between the RIAA/MPAA and various ISPs came out, it was obvious that the Obama administration, in the form of VP Joe Biden's office and IP Czar Victoria Espinel, were involved. We had even discussed that. Now some more details have come out, as Christopher Soghoian received a response to his Freedom of Information Act request, seeking emails from government officials concerning the deal -- and, of course, it shows that Biden's office and Espinel were heavily, heavily involved... and almost exclusively on the side of the RIAA and MPAA. Both of those organizations were regularly in touch with the administration, including planning about how the deal was going to be announced. Amusingly, Biden's office apparently freaked out when Greg Sandoval at CNET broke the story a few weeks before the deal was official.
The emails note that Espinel did make sure to "involve" two groups who represent consumer interests -- CDT and Public Knowledge -- but it's quite clear from the nature of the interactions that those organizations were not really involved in the negotiations, but were shown the details towards the end, to avoid them feeling "taken by surprise" when the deal was announced. None of this is particularly surprising, but it's pretty silly for everyone to pretend that this was a "voluntary agreement between private entities." It was clear from the beginning that the White House was heavily involved, and was very much backing the entertainment industry's viewpoint. In theory, the government should be representing the people, but the cozy nature of the relationship suggests it was exactly the opposite. The government was representing industry against the public interest.
One of my favorite historical stories that really demonstrates how a "legacy" industry can take regulatory capture to extreme lengths to protect their monopoly rights is the story of the French button-makers guild in 1666, as relayed by famed economic historian Robert Heilbroner:
The question has come up whether a guild master of the weaving industry should be allowed to try an innovation in his product. The verdict: 'If a cloth weaver intends to process a piece according to his own invention, he must not set it on the loom, but should obtain permission from the judges of the town to employ the number and length of threads that he desires, after the question has been considered by four of the oldest merchants and four of the oldest weavers of the guild.' One can imagine how many suggestions for change were tolerated.
Shortly after the matter of cloth weaving has been disposed of, the button makers guild raises a cry of outrage; the tailors are beginning to make buttons out of cloth, an unheard-of thing. The government, indignant that an innovation should threaten a settled industry, imposes a fine on the cloth-button makers. But the wardens of the button guild are not yet satisfied. They demand the right to search people's homes and wardrobes and fine and even arrest them on the streets if they are seen wearing these subversive goods."
It's not hard to see the RIAA or the MPAA in that description of the old guilds, and it seems like they're trying to take the comparison even further. As we covered back in May, the RIAA has been pushing really, really hard for California to pass a law that would allow for warrantless searches of private property, specifically of anyone involved in reproducing CDs or DVDs for "commercial" purposes. The RIAA was so cavalier about this, that a spokesperson even said: "I don't think the scope of the search is something a regulator needs to be worried about." In other words, no government oversight. Just go ahead and search private businesses.
This seemed to be so obviously against the 4th Amendment that it seemed ridiculous that anyone would seriously consider such a bill. So, of course, Governor Jerry Brown of California just signed it into law. The law decimates the 4th Amendment, and says that law enforcement has the right to search the premises of anyone making optical discs for commercial purposes, without any warning or warrant. Hell, even the state's own analysis of the bill warns that it's not sure that the bill "would stand up to constitutional scrutiny."
It's beginning to sound like the French button makers guild getting to enter your homes and closets to find those dreaded "non-compliant" buttons. It's getting so ridiculous that even those who are generally supporters of the RIAA/MPAA's positions are saying this bill goes way too far, noting that it grants way too much power to law enforcement (often at the urging of private industry) to go on "fishing expeditions" at companies they dislike. And let's not even get started on what kind of precedent it sets when you can so easily remove the Constitutional requirement for a warrant.
A week or so ago, we wrote about how Twitter had suspended accounts of a bunch of hip hop bloggers, after receiving DMCA takedown notices because the twitter accounts of those bloggers linked to blog posts about music that was sent by promoters working for the labels themselves. Anyone familiar with the hip hop promotion world knows that this is how it works. Hip hop blogs are the new radio for that genre, and the way you get your artist noticed is by sending a track to one of those blogs. So then issuing a takedown is kind of like having the promoter you hire ask a radio station to play a song... and then sending a legal threat letter when they do. Just another day in the major label world, however.
In asking questions about these takedowns, Twitter sent over some recent links to Chilling Effects showing the details of the takedown, which leads us to some interesting discoveries. First, the party actually sending the takedowns is the RIAA. All of the letters in question say they come from "Job title: Online Anti-Piracy, RIAA." Elsewhere it says that the takedown notices are from Universal Music... but sent by the RIAA.
Kinda makes you wonder what the RIAA actually knows about what the marketing folks are doing. Or, hell, what the actual artists and execs at Universal Music are doing. In some cases, the evidence suggests not much at all. Let's take just a few examples. If you start looking at some of the takedown notices -- try this one and this one and this one for starters, you see that a bunch of the takedowns were over the following:
Description of original work: Sound and video recordings as performed by the artist known as The Dream.
As you may know, The-Dream, also known as Terius Youngdell Nash, is one of the top producers, song writers and performers out there today. Take a look at the list of songs he has his fingerprints on. He wrote Beyonce's "Single Ladies." He wrote Justin Bieber's "Baby." He's written songs for pretty much every top artist. Rihanna, Usher, Mary J. Blige, Mariah Carey, Janet Jackson, Britney Spears. Even Celine Dion.
He works for Def Jam, which is owned by Universal Music, as one of their key moneymaking songwriters. He's at the top of the game here. So, clearly, when he puts out his own work, you could understand why the RIAA would rush around demanding that everyone take down tweets linking to the music.
Except... He also has his own label under the Def Jam label, known as Radio Killa. And if you go to the front page of Radio Killa Records right now, as we speak, you see that The Dream's new EP, 1977 is being given away free. Here's a screenshot of the front page. Note it says "THE NEW FREE ALBUM."
If you click on the cover on his website (obviously not on our screenshot of it), it offers you a download of a .zip file containing all of the tracks. In other words, this Universal Records-owned label is giving away the music directly off of its own site. While the tweets that the RIAA demanded be taken down are gone, in looking it over and talking to some people, it appears they were linking to the download themselves. So the "infringing links" -- according to the RIAA's "anti-piracy expert" -- were to the Universal Music-owned label's own website and files. Brilliant.
Meanwhile, The Dream himself was tweeting up a storm, telling people to download the tracks. And while he joked at one point that the lawyers might crack down and force him to take down the music, it's still up on a Universal Music website, and it seems quite reasonable for anyone linking to it to recognize that it's been authorized by Universal Music for distribution. Not only that, but he talks up the importance of giving the music away and jokes about all the "freeloaders" who are "flooding" his site with downloads. From there, he talks up how awesome it is that "everyone's playin'" the album and how much he loves and thanks his fans. When asked about it, he even stated that it's "free literally and figuratively."
And... for those of his fans who promote the work that he's giving away for free directly on his label's website by linking to that free music on a Universal Music website... the RIAA sends takedown notices, and people risk completely losing their Twitter accounts.
Yup. This is the RIAA. Protecting the interests of the "artists" right?
The RIAA's war against reasonableness continues. As totally and completely expected after Judge Michael David reduced the jury award against Jammie Thomas-Rasset from $80,000 per song shared to a still ridiculous $2,250 per song shared, the RIAA has now appealed the case to the Eighth Circuit appeals court. Now is when the case finally starts to get more interesting. The RIAA is actually challenging three parts from the three prior trials (as you may recall, the first two were tossed out). Specifically, the RIAA is asking:
Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act, and therefore refusing to enjoin Defendant from making Plaintiffs' copyrighted sound recordings available to the public.
Whether the District Court erred by concluding that it had committed an error in instructing the jury that making a copyrighted work available for download on a online file-sharing network constitutes a "distribution' under 106(3) of the copyright Act and therefor vacating the jury's verdict and ordering a new trial.
Whether the District Court erred by holding that the jury's award of statutory damages for defendant's willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act.
All three are interesting legal questions. The last one may be the biggest, but the hardest to succeed on. The reasoning used so far by two different judges in dropping jury awards is that the jury awards were so out of line with reality that they violated due process. The RIAA is scared to death that any sort of reasonable awards be associated with copyright law, because they're still under the ridiculously misguided belief that absolutely insane judgments for millions of dollars will scare people into no longer sharing files. The thing is, it's likely they have this misjudged in a big, bad way. The awards in the millions of dollars for just a few songs seem so incredible and so unfathomable, that most people simply think it's impossible. I honestly believe that they'd have a lot more luck if the fines were seen as much lower and much more within the grasp of the average file sharer. But the RIAA is not known for thinking logically.
The first two issues are actually important as well, though they'll get less attention. It's a key fighting point by the RIAA: which is whether or not a copyright holder needs to prove actual distribution to show an infringement of the distribution right under copyright law... or if merely "making available" constitutes distribution. This has been a major point of contention. The RIAA relies on a case about library books to say that merely "making available" is a violation of the distribution right, but other rulings and basic common sense on what constitutes distribution, suggest that merely making available is not, in fact, distribution by itself.
It's been two years since we first warned of the pending fight concerning musicians asserting their copyright termination rights. As you hopefully know by now, copyright law includes a "termination right," which cannot be contractually given up, which allows the original content creator to "reclaim" the copyright on their works 35 years after it was created. The only real exception is in cases where the work qualifies as "work for hire." I'm actually not a huge fan of termination rights in the first place for a variety of reasons, but the fact is that they're there... and they scare the entertainment industry silly.
The big legal fights so far have mostly been about the comic book industry, with the heirs of Superman's creators having won back some rights to Superman -- while Jack Kirby's heirs failed to win back the rights to The Incredible Hulk and X-Men. Kirby's family just appealed and there are still additional disputes around the Superman stuff.
However, the real showdown is about the music industry. The NY Times has an article about the impending battle, which has a variety of interesting tidbits, but none more ridiculous than the RIAA officially making it clear that it intends to totally screw over musicians. As we made clear two years ago when we wrote about this, the RIAA was going to come out fighting to try to block what the law clearly allows, and will do everything it can to screw over artists and keep them from regaining their own copyrights.
“We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees.
First, this may be the first time the mainstream media has accurately pointed out that the RIAA represents the "interests of the record labels" rather than the interests of the music industry or musicians. As is clear in this case, the RIAA's interests are diametrically opposed to the interests of artists, and the fact that Marks has the gall to flat out say that termination rights don't apply to most sound recordings is so intellectually dishonest.
The RIAA knows full well that termination rights absolutely do apply to most sound recordings. To be fair, this is mostly an accident of history. As was detailed in an excellent IP Colloquium episode last summer all about termination rights, what got covered and what didn't basically depended on who was in the room and who was more aggressive in their lobbying. Nine "work-for-hire" exceptions were put into the law. It doesn't make much sense which ones made it and which didn't, but that's lobbying for you.
However, the reason we know that the RIAA is fully aware of the fact that copyright termination does apply to most sound recordings is because a dozen years ago, recognizing that this was going to become an issue, the RIAA famously had a small time Congressional staffer by the name of Mitch Glazier sneak four innocuous looking words in the middle of a totally unrelated bill to quietly and retroactively have sound recordings declared "works for hire." This literally happened overnight with no elected officials who were voting on the bill being made aware of it.
Once that became public, artists (quite reasonably) freaked out and went very, very public about how the RIAA was totally screwing them over. It's one of the few times in history when Congress actually went against the RIAA, removing the language soon after it was approved. Of course, the guy who slipped the language in, Mitch Glazier, came out of this fine. Just three months after putting in that language, he was hired by the RIAA at a $500,000 per year salary, and he's just been promoted to the number two spot at the RIAA.
If you ever needed any more evidence that the RIAA is entirely anti-artist, this is it. It's put the guy who tried to take away their right to regain copyrights in the number 2 spot just weeks before out and out declaring that the organization simply doesn't believe sound recordings qualify for termination rights.
So, since they know damn well that sound recordings do qualify for termination rights, how are they going to claim otherwise? They may (as the NY Times article suggests) try to rely on last year's ruling concerning Bob Marley's recordings, in which they were declared "work for hire" and his family was unable to reclaim the copyright. But that's a different story, as those recordings happened prior to the rules of the 1976 Copyright Act, so the ruling really doesn't apply.
Instead, my bet is they're going to lean heavily on a Second Circuit Appeals Court ruling from last year, which claimed that an album is a single compilation for the purposes of copyright law. That matters, because while "sound recordings" are not covered as a "work for hire," "compilations" are. Of course, the obvious intent of including "compilations" was based on the realization that if multiple people contribute pieces to a larger whole compilation, separating out those rights later under termination laws would be freakishly impossible. Thus it was just easier to label the entire compilation as held by the producer. But a single album by a single artist clearly is not a compilation in that sense, despite the RIAA's claim above.
Other than that, the only way the RIAA can make a work for hire claim stick is to say that musicians were employees who created the music "within the scope of his or her employment." That, obviously, is completely laughable, since the labels don't hire musicians, nor do they pay them salaries. In fact, while they give them "advances," those are merely a form of loan that the artists have to pay back out of their own earnings. So the labels aren't even paying for the music creation.
Either way, it's pretty stunning that the RIAA has so blatantly declared war on artists. I'm somewhat surprised that more musicians aren't speaking out about this, but it's going to happen. No wonder the RIAA is so desperate to get things like PROTECT IP passed now, before this next battle comes to fruition. Once you have a bunch of big name musicians going very public about how the RIAA is screwing them over, it's going to be increasingly difficult for the RIAA to keep up the facade about how it's representing the interests of musicians while it's actively and vocally trying to totally screw them over.
With the entertainment industry and ISPs agreeing to a "voluntary" six strikes plan, which treats users as guilty until proven innocent and takes away completely valid defenses (for example: that file is in the public domain is not a valid defense!), you would think that the very least the public could ask for is that the system used to make the accusations is open to scrutiny.
But, of course, there was no one representing the public at the negotiations, so instead, the monitoring system is shrouded in secrecy. No one will speak about it on the record. TorrentFreak has gotten off the record sources to confirm that it's going to be handled by DtecNet, which means we should expect some problems with the accusations. This is, after all, a company that didn't even understand how BitTorrent works, but put out a totally misleading report about it, which was so bad that the company eventually retracted it.
Doesn't it seem highly questionable that no one involved in this plan is willing to discuss the monitoring technology publicly? If they actually had faith that it worked, wouldn't they be showing it off? The problem is they know it's not good. They know it doesn't hold up to scrutiny. They know there will be people falsely accused. But they don't care. As long as they think that they're holding on to some tiny bit of a business model that is pretty much dead... they can pretend that they're doing something smart. And the public and our culture suffers as as result.
