File Sharing Continues To Grow, Not Shrink

from the hollywood-in-denial dept

The entertainment industry always seems to think that the next thing they do will suddenly kill off piracy. They file lawsuits, they shut down sites, they change laws, they, finally (kicking and screaming), agree to license innovative new services... and then they declare victory over "piracy." To hear industry folks talk about things these days, between the Limewire shut down, the new six strikes plan and the impending approval of PROTECT IP, piracy is somehow on its very last legs. There's definitely a sense of mission accomplished coming from them.

There's just one problem with this. None of the actions taken by the industry appear to have slowed down infringement online. Instead, it appears that it just keeps growing. Yes, some legal services have been growing faster, but in typical fashion, the industry seems to want to make those services worse, not realizing that there's still a viable (if illegal) alternative for many users.

At what point will the industry finally realize that maybe there's a better strategy, one which doesn't treat fans who use file sharing as the enemy, but as a potential opportunity?

Filed Under: business models, file sharing, growth, movie industry, recording industry
Companies: mpaa, riaa

Out With The Old... In With The Older At The RIAA

from the facepalm dept

There were rumors about this last week, but now it's been confirmed that RIAA CEO Mitch Bainwol has left to head up the Alliance of Automobile Manufacturers. I'm sort of curious what his job qualifications were?

Mitch: "Rather than help a legacy industry adapt to changing times, I focused on a self-destructive legal campaign against fans, got Congress to pass bad laws that made things worse, made the companies I represent more hated than before (and we already started super low!) and, on top of all that, failed to do anything to help the record labels improve their bottom lines."

Detroit: "Wow, you sound like our kind of guy... Sign here!"

Honestly, Bainwol's biggest accomplishment may have been making his predecessor, Hilary Rosen, look insightful and progressive in her views on the recording industry.

So, with Bainwol out, did the RIAA find someone who actually is willing to help the RIAA and the record labels adapt to these changing times a decade and a half too late? Did it hire someone who won't fall for the same old traps again, but who might actually embrace the modern world in a way that helps the record labels earn more money?

Nope. It just promoted President Cary Sherman, who has probably been a lot more public and vocal than Bainwol anyway. Oh, and they also promoted Mitch Glazier to take on more responsibilities as well. If you want any more evidence as to just how anti-artist the RIAA is, all you have to do is look at Glazier's most famous moment, allegedly sneaking in a few words into an unrelated bill to take away the ability of musicians to take back their copyrights from record labels, when he was a nobody Congressional staffer. A few months later, he was pulling down a half million dollar salary from the RIAA. Convenient. This created such a scandal among musicians that it's one of the few major policy issues in which Congress eventually rolled back his changes. I don't see how the RIAA presents itself as "pro-artist," when this is the guy they have as second in charge.

As for Sherman, not only is he one of the highest paid lobbyists out there (making even more than Bainwol), but among his greatest hits are his desire to roll back the DMCA's safe harbors (the one good part of the DMCA), his explanation for why suing college kids is good for business and his lovely attempts to get federal financial aid pulled from universities that don't act as copyright cops.

This is not how you drag the recording industry into this century. It's how you drag it down.

Filed Under: cary sherman, lobbyists, mitch bainwol, mitch glazier
Companies: riaa

Lobbyists Ramp Up Pressure To Get PROTECT IP Passed

from the but-of-course dept

The world's largest lobbying organization, the US Chamber of Commerce (which thrives off the fact that many people mistake it for a US government body), along with the biggest lobbyists representing the recording and movie industry, have ramped up their efforts to get PROTECT IP approved as quickly as possible. The groups held a conference on Capitol Hill and then began visiting Senators to talk about how much they needed this protectionism, because they're unable to adapt to a dynamic internet where they're no longer the gatekeepers. Who's doing this? Well, along with the Chamber of Commerce, we have NBC Universal, Sony Music and Pictures, Walt Disney Company, the MPAA, the RIAA, News Corp. (watch your voicemails, senators), the National Association of Theater Owners, Warner Music and the American Federation of Musicians.

Basically it's a who's who of those who want to change the internet from a communications platform into a simple broadcast medium that they can control.

And, of course, Steven Tepp, the main guy at the Chamber of Commerce (and a former government official with a history of mocking concerns of consumers when it comes to copyright issues) trotted out totally debunked stats:

"IP-intensive industries are responsible for the jobs of 19 million Americans, $7.7 trillion of our gross output, and 60 percent of U.S. exports."

Note the basic fallacy here. It assumes that "IP-intensive industries" only exist due to stricter IP laws. This is false. In fact, some of the most "IP intensive industries" around, such as the tech industry, are opposed to this law. That the Chamber of Commerce would stoop so low as to include those who are against this law in its argument for why this law should be passed really just highlights the kind of sleazy politicking the organization is famous for.

Either way, there's no doubt (there's never been any doubt) that PROTECT IP was introduced with tremendous support from certain lobbying groups who have tremendous sway in DC. They've actually come up against more roadblocks than they expected, but they're not going to let that stop them. This is the first stage of the endgame to get the law passed. To be honest, I'm surprised they've even had to go this far, because from the beginning it looked like they had the easy support. The fact that they felt the need to break out this little stunt shows that the opposition to PROTECT IP has actually drummed up enough noise that some politicians are concerned about the very real unintended consequences of the law.

And while politicians may be confused and send back the wrong form letters, don't let that stop you from at least making your voice heard. The folks at DemandProgress (with whom I have no direct connection, even if the MPAA will claim otherwise) have set up an easy form to use to make your voice heard. The EFF has set up a similar form. Both of these let you edit the form and say what you want, and making an impassioned and reasoned (and calm) argument in your own words is much more powerful than just submitting the form letter. Of course, the entertainment industry has set up its own form letter generator too -- but it's completely uneditable. In their world, creativity from the people is not allowed. Only the big industry gatekeepers are allowed to be creative.

Filed Under: lobbyists, protect ip
Companies: chamber of commerce, disney, mpaa, nbc universal, news corp., riaa

ISP's Five Strikes Plan: Railroading, MPAA/RIAA-Style

from the guilty-until-proven-innocent dept

Another day, and more questions are being raised about the "voluntary" (if you consider the US government telling ISPs they had better agree to something, "voluntary") agreement by ISPs to act as copyright cops and punish people accused (not convicted) of infringement. We already have a big issue with any plan that's based on accusations, rather than convictions. If the history of the DMCA has taught us anything, it's that people abuse these accusations regularly, and it can create massive unintended consequences and chilling effects. It's sad that ISPs would agree to such a program in the first place, but the details keep making it seem even worse.

We've already pointed out that it'll cost you $35, if you want to protest your innocence, but that's just the beginning. You see, you can't just protest your innocence. Oh no. That would be way too forgiving. Instead, you're limited to one of only six defenses, which some have pointed out fall way short of what copyright law allows. In other words, even if you aren't violating someone's copyright, just because you're accused of doing so, you might not even effectively be able to show that you're innocent, if your defense isn't one of the six official ones.

That's pretty ridiculous.

The official (misnumbered -- there's no fifth defense) list is as follows:

(i) Misidentification of Account - that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.

(ii) Unauthorized Use of Account - that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented.

(iii) Authorization - that the use of the work made by the Subscriber was authorized by its Copyright Owner.

(iv) Fair Use - that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.

(vi) Misidentification of File - that the file in question does not consist primarily of the alleged copyrighted work at issue.

(vii) Work Published Before 1923 - that the alleged copyrighted work was published prior to 1923.

Take, for example, that last one. Note that it doesn't say "work is in the public domain." It just says "work was published before 1923," meaning that the work is probably (though, with sound recordings, not definitely) in the public domain. Why not just have a defense that says "work is in the public domain"? There are works that were published after 1923 that are in the public domain -- including works that people put into the public domain, or other works that were published after 1923 and before 1978, which didn't have a copyright notice (among some other options). So why aren't those allowed as defenses?

It appears that you can get into serious trouble here even if you're sharing public domain works.

Even worse, the plan says that you can use the defense that you have an open WiFi network only once:

Except as set forth herein, this defense may be asserted by a Subscriber only one (1) time to give the Subscriber the opportunity to take steps to prevent future unauthorized use of the Subscriber’s account. Any subsequent assertion of this defense by a Subscriber shall be denied as barred, unless the Subscriber can show by clear and convincing evidence that the unauthorized use occurred despite reasonable steps to secure the Internet account and that the breach of such security could not reasonably have been avoided.

This assumes that open WiFi is a mistake, rather than a choice. There are plenty of good reasons why one might want to offer an open WiFi connection, and there are ways to do so safely. But under this plan, they could get in trouble for it, despite it being perfectly legal.

So, let's see: under this plan, people are guilty until proven innocent, they have to pay to protest their innocence, their "defenses" are greatly limited, they can still get in trouble for sharing public domain content... and they can get in trouble for offering a perfectly legitimate open WiFi network. I'm curious how that's helping to "win the future," as IP Czar Victoria Espinel stated in response to this "voluntary" deal.

Filed Under: challenges, copyright, defenses, five strikes
Companies: mpaa, riaa

Major US ISPs Agree To Five Strikes Plan, Rather Than Three

from the how-unfortunate dept

Well, this is hardly a surprise, given the leaks about this last month, but most of the major US ISPs have agreed to a "voluntary graduated response" plan at the urging of the RIAA and the MPAA (with some shoving from the US government).

In our original discussion, we noted that ISPs would have the option to kick people off the web entirely, and in our comments we were attacked by an anonymous person involved in the negotiations, saying we made that up. And yet, the agreement today confirms that kicking users off the web entirely is a possible measure for these ISPs. Of course, the folks behind the plan were careful to try to talk their way around this. They say that it's only the web that gets blocked. Email (um, not if you use web-based email), VoIP "or any security or health service (such as home security or medical monitoring)" will still be allowed to go through. Also the agreement explicitly says that they're not talking about killing anyone's account. This is disingenuous, of course. For most people, having their web access blocked is as good as losing your account entirely. Access to the web is pretty much the whole point of an internet access account these days.

Participating ISPs include AT&T, Cablevision, Comcast, Verizon and Time Warner Cable -- also known as pretty much the only choices the vast majority of Americans have for serious broadband connections. The basics of the plan are a "five strike" plan, rather than the traditional "three." After the fifth strike (and by strike, we mean accusation, not conviction), the ISPs can resort to "mitigation measures":

If, after these educational and acknowledgment alerts, the subscriber’s account still appears to be engaged in content theft, the ISP will send yet another alert. At this time, the ISP may take one of several steps, referred to as “Mitigation Measures” reasonably calculated to stop future content theft. These Mitigation Measures may include, for example: temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures (as specified in published policies) that the ISP may deem necessary to help resolve the matter.

Now, the interesting question: will any of this get people to actually buy music and movies again? That seems doubtful. And, of course, it's worth noting that even with this in place, the MPAA and RIAA are insisting that PROTECT IP is necessary. Funny, I thought that the problem was solved once graduated response was in place.

Those behind the plan bend over backwards to claim this is just an "educational" plan. But education plans don't mean people can no longer access the web. Words mean something. On top of that you can pretty much bet that the "education materials" that will be provided will be typically one-sided and misleading.

The other problem with the plan is that it's still based on accusations, rather than convictions, and if the DMCA has taught us anything, it's that people make false claims of infringement all the time. And if you get an alert that you think is wrong? Well, you have to pay to have it reviewed. Now suddenly this can become a "profit center" for ISPs.

Is this plan as bad as three strikes plans found in Europe and Asia? No. But it's still a bad plan. Anything that involves crippling your internet access based on accusations is ripe for serious abuse. Furthermore, there is little to no evidence that this will actually help the RIAA or MPAA and their associated companies. This is yet another case where the industry is so focused on "piracy" they forgot that they have to actually give people reasons to buy. The problem isn't piracy. The problem is their inability to adapt to a changing market.

Filed Under: copyright, entertainment industry, graduated response, isps
Companies: at&t, cablevision, comcast, mpaa, riaa, time warner cable, verizon

RIAA: Changing Copyright Term On Recordings Is Unconstitutional (But Only If It's Shorter)

from the double-standards dept

Ah, the RIAA is so full of double standards and hilarious hypocrisy that they almost make this kind of thing too easy. On Friday, we wrote about Thursday's hearings for the Copyright Office, concerning the question of what to do about pre-1972 sound recordings, which technically are not covered by federal copyright law, but instead aggressive state copyright laws that mean most such works won't hit the public domain until 2067 -- way beyond what it would be if they were under federal copyright law (assuming -- and this may be a big assumption -- that copyright terms are not extended again). Those hearings continued on Friday, and as with the day before, the RIAA provided all sorts of ridiculous quotes. Basically, anything that hurts the RIAA is pure evil, unconstitutional and damaging to culture -- even if the arguments are contradictory and go against what the RIAA argues on other issues.

Once again, my coverage is based largely on the excellent coverage from Copycense. I've collated some of the key tweets he made in covering the hearings at the end of this post.

Most of the ridiculousness came in the second session of the day, but there was one comment that deserved mention during the first session, when the RIAA rep on the panel claimed that "Given 'piracy' issues" the last thing that anyone should want is to reduce the terms of copyright. I'm trying to figure out what one has to do with the other. If anything, it seems like you could make a pretty strong argument in the other direction. The rise of widespread infringement suggests that the industry has failed to make works available to the public in a way that properly benefits the public. Thus, shouldn't we be making those works even more available? Either way, the statement from the RIAA here is a red herring. The idea of putting such works under federal copyright law would just bring those works in line with the already ridiculously long copyrights that the RIAA fought for not so long ago.

Then we get to the second panel, which focused on the Constitutional issues of fixing the excessive copyright issues for these works, with one key suggestion being to put those works under federal copyright law. Jennifer Pariser, from the RIAA -- the same woman who the day before had ridiculously and incorrectly insisted that the public domain had no value continued along that path again. She claimed that such a change to copyright law would lead to litigation and would be a violation of the takings clause (part of the Fifth Amendment). Basically, she was claiming that changing the terms of copyright on these works is the equivalent of taking away rights from the copyright holders and giving them to the public. In fact, she specifically claimed that "the less harm" you do to changing the term of copyright, the less of an issue there is. Hmm.

So, here's the question: where was the RIAA and Pariser on the issue of massive copyright extension over the last century? Oh, you guessed it, the RIAA has been totally supportive of it. So, you see, according to them, you can only ratchet copyright law in one direction. If you take away from the public (which copyright is supposed to benefit), that's fine. If you help the public... well, that's just downright unconstitutional!

Pariser also pushed on with the same claim from the day before about the lack of value in anything that goes into the public domain, and thankfully, others pushed back on that, pointing out (1) that copyright law was never intended to be set up so that the copyright holder got all the value out of the work and (2) no one was looking to make the works valueless, they were just talking about removing the monopoly, which from an economic standpoint makes a ton of sense.

Those same folks, usually representing libraries, pushed back on many of Pariser's points, highlighting that many of these works had already been covered by more than 120 years of copyright, and how much more do they realistically need? At that point, someone asked a perfectly relevant question: why should sound recordings get longer protection than any other work... to which Pariser responded (apparently with a straight face, though I'm not sure how), that the RIAA has "developed business models" around the extended length of copyright on pre-1972 sound recordings.

To put it mildly, this is laughable. The works that the RIAA labels are still making money on would still be under copyright for a long, long time (though, as we noted on Friday, perhaps the real fear from the RIAA is that under federal copyright law the actual artists and/or their heirs could reclaim the copyright). But the fact is, the vast majority of these older works are disappearing. To suggest that these copyrights should remain so long because of the record labels' business model is ridiculous.

Copyright law is not, was not, and has never been about protecting the record labels' business model.

If they did set up their business models based on this (and they did not), that should make NO difference. I mean, let's take that to the logical extreme. If we were to use the RIAA's own logic here, then that means the PROTECT IP Act should not pass, because it would impact the business models of other types of sites. And, according to the RIAA, no laws should change that impact someone's business models, right? I'm assuming this also means the RIAA is now against three strikes laws, ACTA, TPP and all sorts of other proposals that would negatively impact the business models of others, right?

And, just to cap off the ridiculousness, at the beginning of the following panel, an RIAA representative had the ridiculous gall to suggest that a change to how these old works are treated might decrease the availability of these old works since there wouldn't be the same incentive to produce sound recordings. I hope you weren't taking a drink when reading that, because it should have made you spit it out. The whole two day event was to discuss the very fact that so many of these works are disappearing, because the RIAA record labels are not making them available. The whole point of moving some of these old works into the public domain is so that others can make them available. And the RIAA is twisting that argument -- again apparently based on its ridiculously confused understanding of the public domain -- to suggest that even fewer works would be available if freed up. Thankfully others quickly pointed out that the issue is the works aren't available now. Hopefully, the Copyright Office properly discounted the RIAA's FUDful claims at the hearing, because they went beyond being just slightly misleading into being flat-out ridiculous.

Filed Under: copyright, length, public domain, takings clause, terms
Companies: riaa

RIAA Says There's No Value In The Public Domain

from the true-colors dept

While I've already written about the hearings for the Copyright Office concerning copyright on pre-1972 sound recordings, but I wanted to call out one particularly egregious and ridiculous statement from the RIAA. The RIAA's Jennifer Pariser claimed that there's no value to a work in the public domain. Apparently Pariser is unfamiliar with the works of Shakespeare. Or Beethoven. Is she serious? I mean, you could make the argument that it makes life more difficult to sell those works for the labels she represents, but those works have tremendous value. Pariser, of course, is famous for making ridiculous statements, sometimes under oath. Back when she worked for Sony-BMG she made some statements, on the stand and under oath, in the Jammie Thomas trial that were blatantly untrue. Only much later, after the jury had ruled, did the RIAA admit that Pariser "misspoke" while on the stand. One hopes she "misspoke" here as well, but I get the feeling she actually believes the blatantly incorrect statement she made.

Filed Under: copyright, cost, economics, jennifer pariser, public domain, riaa, value
Companies: riaa

RIAA Two Top Execs Made $4.8 Million In 2009; How Many Musicians Could That Have Funded?

from the just-wondering dept

As a whole bunch of folks have been sending over, RIAA President Cary Sherman made $3.2 million in 2009 -- the highest paid "non-CEO staffer who is a federally registered lobbyist in a tax-exempt organization" by more than double. Meanwhile Hypebot adds in the details that Sherman's official "boss," RIAA CEO Mitch Bainwol made "only" $1.6 million that year. Kinda makes you wonder what exactly the two of them did that deserves that kind of cash. Presided of an industry that's collapsing? Got Congress to pass new laws that didn't help and really only served to make things worse? This seems like pretty strong evidence that the labels, perhaps, should be giving less money to the RIAA. After all, we keep hearing about how the labels don't have enough money to invest in new artists these days. You could make quite a few new albums for $4.8 million. And I doubt the RIAA would do much worse without Sherman or Bainwol around. Hell, the RIAA could pay me half of that, and I'd actually help them move forward, rather than trying to keep pretending that they can bring back 1990.

Filed Under: cary sherman, music industry, salary
Companies: riaa

Being Concerned With Free Speech Implications Of PROTECT IP Does Not Mean You Think You're Above The Law

from the oh-come-on dept

Wow. In the legacy entertainment industry's latest "you're either with us or against us" mentality, it appears that expressing concern about the free speech implications of bills like PROTECT IP means you're a horrible, horrible person. Both the MPAA and RIAA are quite upset about Eric Schmidt coming out against PROTECT IP and saying that the impact on free speech would be disastrous. Both responses are so sickeningly disingenuous, it really makes you wonder how out of touch they are.

Let's start with the RIAA's statement:

"This is baffling. As a legitimate company, Google has a responsibility to not benefit from criminal activity. In substance and spirit, this contradicts the recent testimony of Google's General Counsel that the company takes copyright theft seriously and was willing to step up to the plate in a cooperative and serious way."

Um. Except that nothing in what Schmidt said actually contradicted Kent Walkers speech, nor did he say they don't take copyright infringement (not theft guys) seriously. He was expressing very legitimate concerns about the free speech implications.

On to the MPAA's statement, which echoes the RIAAs, but is a little more fleshed out:

In April, Google senior vice president and general counsel Kent Walker testified before Congress that 'Google supports developing effective policy and technology tools to combat large-scale commercial infringement.' That’s exactly what the PROTECT IP Act is designed to do -- it creates a narrowly-drawn, carefully constructed solution to the threat to American jobs and America's economy, a solution that protects and strengthens our right to free speech. As constitutional law expert Floyd Abrams wrote, '[c]opyright violations are not protected by the First Amendment.'

This is really shameful how the MPAA twists the debate. First of all, the PROTECT IP does not effectively combat large-scale commercial infringement at all. That's just wishful thinking. The actual infringement will continue. Second, there is no evidence that it will support American jobs or the economy. In fact, the reverse is almost certainly true, as these kinds of laws will harm large parts of the internet that enable new jobs.

But the really sickening part is the Floyd Abrams quote. While it is entirely true that copyright violation is not protected by the First Amendment that's not what Schmidt or anyone else raising these issues are concerned about. No one -- not Schmidt, not us -- is arguing that copyright infringement is protected by the First Amendment. We're saying that this tool will be used against non-infringing and perfectly legal speech. And that's not a theoretical concern. We've already seen it happen multiple times with the existing ICE domain seizures, in which blogs and sites that were not violating the law were seized.

That's the concern.

Furthermore, as Schmidt made clear in his statement, he was also noting that once you justify the censorship of some speech just because you're trying to stop infringement, you open the door to much more censorship of speech. Traditionally, the First Amendment caselaw has been clear: if you're going to strike against illegal speech, you have to very narrowly focus on just that speech. PROTECT IP does not do that. It casts a wide net. But, once you have that door open, saying that it's okay to shut down some legitimate speech in an effort to stop some others, that will only expand.

Is Eric Schmidt really suggesting that if Congress passes a law and President Obama signs it, Google wouldn’t follow it? As an American company respected around the world, it’s unfortunate that, at least according to its executive chairman’s comments, Google seems to think it’s above America’s laws.

Oh, come on! Of course that's not what Schmidt is saying and the MPAA is being obnoxiously disingenuous in suggesting otherwise. He's not saying they're "above America's laws." He says that the RIAA/MPAA-written laws should not be above the Constitution. That is, these laws should not violate the First (or in other cases the Fourth) Amendment. By saying that Google would fight, he doesn't mean ignore, he means challenging the Constitutionality of these laws in court.

Sad that the MPAA has so little actual substance behind its arguments that it's forced to blatantly mislead like that. Typical, but sad.

Filed Under: copyright, eric schmidt, free speech, protect ip
Companies: google, mpaa, riaa

RIAA Wants To Start Peeking Into Files You Store In The Cloud

from the of-course-they-do dept

The RIAA really just doesn't know when to give up attacking and to start innovating. Its latest legal move is to file for a subpoena to get information from cloud storage provider Box.net to see if some people are using the service to store and share unauthorized music. There are, of course, a variety of different services out there for cloud storage, that allow individuals, small groups and companies to share files -- not for illicit purposes, but because that's how collaboration and sharing work. I use just such a service to share photos with my family, and another to share documents with coworkers.

But, of course, technologically speaking, the actions of these systems can just as easily be used to share unauthorized content in a potentially infringing manner, and it appears that this is what the RIAA is targeting. As Eriq Gardner notes at the link above, it's not at all clear what the RIAA intends to do with the information it gets. It's difficult to see how it could sue Box.net, who almost certainly has no real liability here, but it could go after the users -- something we'd thought the RIAA had sworn off for the time being.

The whole thing just seems like a waste of time. This is what computers do. They copy. There's always a way to copy. Pretending you can stop that isn't rational. What would be rational is helping the RIAA member labels adapt, but for whatever reason, that just doesn't appear to be within the RIAA's skillset.

Filed Under: copyright, riaa, sharing, storage
Companies: box.net, riaa