Could The RIAA Stop Piracy By Coming Up With A More Compelling Story?

from the maybe-that-and-a-memory-eraser-ray dept

GregSJ points us to an analysis of a recent paper on "the rhetoric of copyright policy." The original paper is actually called Meh. The Irrelevance of Copyright in the Public Mind. The original is a worthwhile read (as is the analysis), but the basic point is that people continue to ignore copyright law because they simply don't "believe" the story of "harm" that the copyright holders are spinning. This actually echoes Rep. Robert Wexler's recent remarks to the World Copyright Summit, where it's all about "the story."

The paper argues that some of the fault is with the media who has portrayed these battles over copyright "as a land grab that benefited only copyright holders." Hmm. Perhaps that's because it's, I don't know... true? Also, it's worth pointing out that it isn't completely true that the media portrays the copyright battles in this manner. The media has often been quite supportive of copyright expansionist policies -- after all, many of the media's current business models rely somewhat on copyright as well.

Still, even if it is true, the paper argues that the RIAA/MPAA/BSA just needs to come up with a good story (which doesn't need to be true!) to convince people of the harm of unauthorized downloading. As a part of that, they suggest that copyright maximalists have to become trustworthy. Try to read the following without cracking up (I couldn't):

To be successful, copyright holders and legislators must consider the construction of ethos and credibility. This is done not only through the reputation that one gains, but also through the discourse itself. Legislators and copyright holders must portray themselves as trustworthy. More specifically, the recording industry must appear to be treating artists and fans fairly, and legislators must appear to be acting in the public interest.... Legislators and copyright holders must maintain a stance that encourages the public to obey copyright laws. When legislators consider altering copyright terms, the public domain is necessarily affected, and great consideration must be given to how the public will react to the proposed action. When the public sees little incentive to honor the ostensibly limited protection granted under copyright law, copyright law will increasingly become unenforceable. However, if the public is provided with compelling reasons why term limits are in the public interest, they may be more likely to support these terms. Likewise, copyright holders must make more compelling arguments concerning why the public should obey copyright law. If the people have a compelling narrative to follow, they will do so--whether it is true or not. The challenge, then, is not to craft better law; the challenge is to craft better rhetoric.

The problem, of course, is that this doesn't pass the laugh test. It's pretty difficult to find anyone who believes that the copyright holders and legislators are doing anything in the public interest. And, I guess if it were possible to come up with rhetoric that made the opposite case, then perhaps people would change their actions. I just question how they could come up with such a story when all of the evidence points to the contrary.

Beyond that, let's face it, the RIAA actually has controlled the "story" for ages. It has convinced people it represents artists' interests, even though it does not. It's convinced people that potential copyright infringement is "stealing" or "piracy" when it's quite a different beast altogether. They've convinced people that copyright is the only way to make money off of content. The problem is that when anyone scratches the surface, they realize quite quickly, that none of this makes any sense at all.

Filed Under: copyright, piracy, rhetoric, story
Companies: bsa, mpaa, riaa

RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing

from the wow,-that's-chutzpah dept

After the Jammie Thomas verdict came down, I predicted that the RIAA would "gloat about and misrepresent to its own advantages." Within hours, I was attacked by a former entertainment industry lawyer with a long screed claiming that no one from the RIAA misinterpreted or gloated about it at the trial. Except, of course, I wasn't talking about what they said as they walked out of the courtroom. I was talking about what would happen afterwards... like a few days later on the RIAA blog. That's when the RIAA tried to claim that the Jammie Thomas jury provides a representative sample of "music industry outsiders" whose verdict disproves the theories of certain "pundits" who believe the digital economy should be a "new wild west" where "the rule of law" is not obeyed.

Talk about misrepresenting.

First of all, I don't know of many "pundits" who think that the digital economy should be a new wild west at all. I think that many of them are actually just focused on preserving individual rights against a constant landgrab by an industry whose history has shown it to not be above removing right after right after right from people. The RIAA and its supporters have taken content out of the public domain, making a government go back on a bargain it struck with content creators, much to the detriment of society, but very much to the benefit of a few record label execs and their lobbyists and lawyers. That's stealing from the public. It's taking a bargain and changing the terms. People don't want a wild west. They want the culture we were promised, and they want their individual freedoms.

Furthermore, calling the very specific nature of the Jammie Thomas trial a referendum on file sharing is ridiculous. Her case had a very specific set of circumstances unlike many others -- and even we (a "reliable critic" according to the RIAA) felt that she never should have gone to trial, as the evidence against her seemed strong. On top of that, this "sample" involved RIAA lawyers who had years to prepare the case against some rookie lawyers who were brought on the case just weeks earlier with little preparation at all, and who, frankly, did a terrible job, seemingly more focused on other issues than the key points in the case.

The Jammie Thomas trial was not a referendum on "the rule of law" or on "file sharing" or on the future of music business models. It was a referendum on Jammie Thomas, who presented herself as an incredibly questionable witness with a fair amount of circumstantial evidence that she broke the law and then tried to avoid taking responsibility for her actions. If the RIAA wants to believe that the people are behind its self-destructive campaign of suing people, more power to it, but putting its head in the sand hasn't worked for the last decade, and I doubt it'll start working now.

Filed Under: file sharing, jammie thomas, jury, sample
Companies: riaa

Richard Marx, One Of The Artists Jammie Thomas Supposedly Shared, Blasts Verdict, Apologizes

from the want-no-part-of-this dept

And the backlash from the Jammie Thomas verdict continues... First there was Moby blasting the RIAA, but he's been a long term RIAA critic. Now, however, singer Richard Marx has come out against the ruling. This is interesting for a variety of reasons. Marx isn't exactly known as a "counter culture" type who would fight back against the RIAA (and, in fact, says he's against unauthorized file sharing). But, more importantly, one of his songs is included in the 24 songs that Thomas was on trial for sharing. For that, he now feels really bad:

As a longtime professional songwriter, I have always objected to the practice of illegal downloading of music. I have also always, however, been sympathetic to the average music fan, who has been consistently financially abused by the greedy actions of major labels. These labels, until recently, were responsible for the distribution of the majority of recorded music, and instead of nurturing the industry and doing their best to provide the highest quality of music to the fans, they predominantly chose to ream the consumer and fill their pockets.

So now we have a "judgment" in a case of illegal downloading, and it seems to me, especially in these extremely volatile economic times, that holding Ms. Thomas-Rasset accountable for the continuing daily actions of hundreds of thousands of people is, at best, misguided and at worst, farcical. Her accountability itself is not in question, but this show of force posing as judicial come-uppance is clearly abusive. Ms. Thomas-Rasset, I think you got a raw deal, and I'm ashamed to have my name associated with this issue.

Once again, even the artists that the RIAA is supposedly "supporting" are angry about the RIAA's own actions.

Filed Under: jammie thomas, richard marx
Companies: riaa

RIAA Has A Blog? And They Use It To Read My Mind!

from the fascinating! dept

Well, well, well. Just a few months ago we noted that EMI had just created what was being called the first major record label blog, which seemed a bit late to the game. However, someone just informed me that the RIAA actually has its own "Music Notes" blog, which I hadn't known existed before. But in checking it out, I discovered that it had an entire post claiming to read my mind. Wow! I'm honored, guys, really. But, like your business strategy, your mind reader is a bit off.

First off, they call me a "reliable RIAA critic," which is not really accurate at all. I only criticize dumb strategies, such as the ones that have driven your most faithful customers to talk of boycotts and swear never to buy products you're associated with. That's not criticism of the organization. That's trying to help you stop screwing up so badly. I'm criticizing consistently bad decision making, not the organization itself, which was, at one time, well poised to embrace a wonderful opportunity online, but screwed it all up in the most spectacular fashion imaginable.

But, from there they get deep into my mind, and claim that I "like to throw in "RIAA" or "Recording Industry" in headlines to generate clicks." Don't flatter yourself, folks. It's got nothing to do with clicks. If I wanted clicks, I'd write about the latest iPhone or celebrities. Stuff about you guys doesn't generate nearly as many clicks as you might think. Most people wrote off the RIAA long ago. Besides, our business model has nothing to do with "clicks." But, I guess, considering your inability to figure out your own business model problems, it's no surprise that you wouldn't understand our business model. But, for your information, I write about the RIAA because I find it fascinating that one organization could make so many ridiculously bad mistakes over and over again, taking itself from a massive position of opportunity, to one where it's become hated by nearly everyone from artists to customers alike. It's a stunning real-time case study in destroying your own industry.

I also write so much about the industry because what's happening in the recording industry is what's about to happen in a bunch of other industries -- from newspapers to healthcare to energy to financial services to consumer packaged goods. And I'm hoping that with enough evidence we can warn off organizations in those industries from making the same mistakes you've made and continue to make. You're a warning sign and a live case study that hopefully others will see in time.

Oh, as for the specific charges in the blog post? Amusingly, they pin language that's not mine on me -- my post was talking about Jesse Walker's Reason article and quoted extensively from that -- and then don't actually respond to it. Instead they respond to totally different charges with selective "cherry-picking" of facts and a nice out of context quote (exactly what they accuse me of doing). Even better, they argue against a total strawman, claiming that the reason I'm against the Performance Rights Act is because I think the money will just go to the labels rather than artists. That's not the case (even if a significant portion does go to the labels no matter what). My complaint is that they're double and triple charging via a tax on those who promote their music, rather than having to actually do any work to give anyone a reason to buy. Update: Even better, as was pointed out in the comments, one of the "poster boys" used by the RIAA in that blog post about someone who "didn't get paid" from his music being on radio is Jack Ely from the Kingsmen, who wrote the song "Louie Louie." Only problem? Jack Ely has said that music should be given away for free and money should be made on performing live. Ooooooops.

So, I'm honored -- really -- that the RIAA thinks I'm a critic and worthy of a personal attack on its blog. But rather than assuming I'm here to attack you, maybe (just maybe) stop and look at what I've actually said. I suggested suing Napster was dumb and shutting it down would be a massive mistake leading to widespread file sharing programs that were harder to stop and track. Check. I've suggested that suing file sharers wouldn't slow down the pace of file sharing and would create massive backlash against the RIAA. Check. I've suggested that smart artists can embrace file sharing and new technologies to their own advantage to make more money. Check. Perhaps you should have turned your mind reading powers to that part of my brain. Or, you know, you could have just given us a call. I would have been more than happy to stop by and explain this all to you in 1998. Could have saved you a lot of trouble, heartache and lawyer fees.

Filed Under: riaa blog
Companies: riaa

If Downloading A Song Is Just Like Stealing A CD, Why Won't The RIAA Allow Reselling MP3s?

from the either-it-is-or-it-isn't dept

When you hear RIAA defenders insist that an unauthorized download is "just like stealing a CD" or something along those lines, it's worth noting even they don't really mean it. After all, if a digital file really was no different than a physical goods purchase, then you'd be able to do other things with it -- such as resell it. And yet, as you read through Eliot Van Buskirk's article about new online services trying to create marketplaces for people to sell their "used" MP3s, you'll see the scenario is quite different. After all, it's perfectly legal to sell your used CDs, but now when it comes to selling used MP3s you need a record label's permission? Why? Well, because even the record labels seem to inherently know that a CD is quite different from a download. So when the RIAA claims they're the same, what they really mean is "only the stuff we like is the same."

Filed Under: copyright, mp3s, reselling
Companies: riaa

Moby Says 'Disband The RIAA' For Winning $1.92 Million From Jammie Thomas

from the representing-the-artists?!? dept

As a whole bunch of you have sent in, the musician Moby has put up a blog post where he suggests the RIAA should be disbanded for its $1.92 million win over Jammie Thomas. While (unfortunately) he gets a few of the facts wrong (they didn't sue her for $2 million, but it's what the jury chose -- though it is accurate that the RIAA has clearly suggested it has no problem with the statutory rates for infringement in the past), his overall point is sound. It's ridiculous that the RIAA thinks this is the proper strategy:

argh. what utter nonsense. this is how the record companies want to protect themselves? suing suburban moms for listening to music? charging $80,000 per song?

punishing people for listening to music is exactly the wrong way to protect the music business. maybe the record companies have adopted the 'it's better to be feared than respected' approach to dealing with music fans. i don't know, but 'it's better to be feared than respected' doesn't seem like such a sustainable business model when it comes to consumer choice. how about a new model of 'it's better to be loved for helping artists make good records and giving consumers great records at reasonable prices'?

i'm so sorry that any music fan anywhere is ever made to feel bad for making the effort to listen to music.

the riaa needs to be disbanded.

This isn't new territory for Moby. Way back in 2003, he got angry after finding out that some of his songs were being used by the RIAA to sue people, and stated: "I'm tempted to go onto Kazaa and download some of my own music, just to see if the RIAA would sue me for having mp3's of my own songs on my hard-drive."

Still, we're seeing more and more artists react poorly to the RIAA, who still claims to represent them. Why is it that our politicians still buy that clearly incorrect story?

Filed Under: jammie thomas, moby, music, recording industry, riaa
Companies: riaa

And Of Course: RIAA Mouthpieces Defend $1.92 Million Judgment

from the time-to-pull-back-the-attack-dogs dept

It's been interesting to see the aftermath of the Jammie Thomas $1.92 million ruling, as it appears that even the RIAA is recognizing that such an insanely large award gives them something of a black-eye and has the possibility of creating a bit of a backlash. However, apparently they forgot to send out that message to all of their usual attack dogs. In an AP article discussing the ruling and the $1.92 million number with a variety of different people, the RIAA tried to distance itself from the number, specifically stating, "That was not our number, that was what 12 regular folks rendered." Uh, yeah, except that the RIAA has long used the statutory numbers in their arguments about the "risks" of file sharing.

Tom Sydnor, from the Progress & Freedom Foundation (PFF), a loud and proud supporter of stronger copyright at every turn (and who is well funded by the RIAA labels), apparently missed the memo on playing down the number. He told the reporter that it was a perfectly reasonable number.

"Legally acquiring a license to give copies of a song to potentially millions of Kazaa users might well have cost $80,000 per song,"

Except... that's not even close to accurate. The record labels presented no proof that she gave the song to millions of users, and seem to totally ignore the fact that these songs were available from tons of other sources (either legally or illegally) for prices between nothing and $1. To claim that the record labels would literally consider an option to license a single user putting a song into a shared folder at $80,000 is simply ridiculous.

But, of course, it shows the mentality of those paid for by the RIAA. These are the same people who accuse Larry Lessig of being a communist by taking a few statements totally out of context, and then accuse universities of supporting terrorism by not violating students' privacy and handing over their details to the RIAA.

So, if the RIAA is really serious about playing down the size of the jury award, it might want to rein in Sydnor before he says much more. If you're looking for someone to get out a message by appearing as a caricature of the evil record labels, I don't think you could find any organization better than PFF. But, that's probably not what the RIAA needs right now, unless it really wants to give the folks on the fence even more reason to leap over to the side who recognizes just how much the labels have twisted, stretched and abused copyright law over the years, totally at odds with its constitutional prescription of promoting the progress of science. Defending a $1.92 million award to the record labels for 24 songs in a shared folder, with no evidence that a single one was actually shared, is not promoting the progress. It's promoting massive greed and regulatory capture at the expense of society.

Filed Under: copyright, file sharing, fine, jammie thomas, lawsuit, music, settlement, tom sydnor
Companies: pff, riaa

Woman Who Owned No Computer, But Got Sued By The RIAA, 'Settles'

from the some-kind-of-victory dept

With everyone talking about the Jammie Thomas case, someone who preferred to remain anonymous, alerted us to the fact that Mavis Roy, a woman who did not own a computer for a while, but was still sued by the big record labels, has "settled" her case with the record labels with neither side having to pay anything. We had written about this case earlier in the year. She did not own a computer on the dates she was accused of file sharing, and then when she got the legal threats from the RIAA she thought it was a joke and ignored them. Finally, some law students took up her case, and it appears they've worked out this "settlement." While Roy suggests this is a "victory" in that she didn't have to pay anything, she's right that it's not that much of a victory when the recording industry is still able to bring such bogus lawsuits to court with no penalty:

"I am still unsettled that the record companies are able to treat upstanding American citizens in this way. Invading people’s privacy and accusing people of things that don’t even make sense. It is such a sad waste of the courts time."

While it's great that she was able to get out of it without having to pay off the labels, nothing about this result provides any incentive for the labels to make sure they have actual evidence before filing future lawsuits.

Filed Under: lawsuits, mavis roy, music, settlements
Companies: riaa

How The Recording Industry Changes Its Own Story

from the anything-for-the-money dept

We've already discussed how silly the Performance Rights Act is -- and how it's basically an attempt by the record labels to get their own bailout courtesy of radio stations. There are all sorts of problems with it, and Jess Walker does an amazing job explaining just how ridiculous the Performance Rights Act is. In doing so, he highlights one point that is quite a common trick in the RIAA's bag of tricks, but which doesn't get enough attention: how it changes the story to flip things around to its advantage over and over and over again. Case in point: the RIAA is arguing that it needs to get royalties to performers for radio air play to "even out" the situation, since radio is the "only" platform where performers don't get royalties. For example, they point to internet radio and satellite radio, where artist do get paid.

So, the RIAA claims, this is unfair... after all, why should they get paid for all of those, but not radio?

Except, the RIAA conveniently wants us all to forget history. That's because it was the RIAA who argued that satellite radio, internet radio and other forms of broadcasting were different from terrestrial radio, and therefore required different royalty structures. In other words, the only reason why this "unfair" dichotomy exists in the first place is because the RIAA lobbied for it by claiming that satellite radio and internet radio were different.

Now it wants everyone to forget that and pretend that it's some weird "anomaly" that terrestrial radio doesn't include performance royalties? Don't buy it. This is the sort of thing the industry has pulled off for years -- pushing one country to extend copyright laws, and then moving to other countries and working up a lobbyist campaign about how that country isn't keeping up with other, more reasonable countries, concerning copyright laws. Have you noticed what's happening in Canada these days? That's a direct example of this sort of thing.

Walker also takes on other points to show how silly and dangerous the Performance Rights Act would be. It benefits no one but the record labels. It harms radio stations. It harms independent musicians. It harms big musicians as well (since most of the money doesn't go to them, but to the record labels). Who does it help? The RIAA, of course:

And for what? Imagine, as a thought experiment, that this bill were passed and, simultaneously, payola were made fully legal. Does anyone doubt that more money would flow toward the radio stations than away? Radio remains the primary means by which the music industry promotes its product. By pushing for this fee, the labels are essentially asking their advertisers to pay them for the service of selling their stuff.

Ah, you say, but what about the independent artists who don't get big promotional pushes from the major music labels? Surely they'd benefit from a new revenue stream? Actually, they'll be even worse off. The economic mission of most commercial radio stations is to deliver audiences to the sponsors whose spots are aired between tunes. So programmers have a built-in preference for music whose mass appeal has already been proven. If you increase the cost of playing a record, that just intensifies the incentive: The more you pay to play a song, the more conservative you'll be about which songs you play. The marginal cost of playing each track is the same, but the commercial payoff is greater for established artists.

Generally speaking, the more it costs to run a station, the more risk-averse it will be. That's one reason low-power and Web outlets are more experimental: They don't have as much money on the line. But those stations--the ones that go out of their way to play diverse and unfamiliar material--are precisely the ones that have the hardest time paying the song tax. The proposed law acknowledges the problem by introducing a sliding scale, with the least profitable outfits paying $500 a year. But while that may be chump change for a big broadcaster, it's a pretty big piece of the operating budget for a low-power, volunteer-run community or student station.

Nor is it the only cost the law will impose. "The record labels are completely out of touch as to how college radio stations operate," Warren Kozireski, president of College Broadcasters Inc., recently complained on his organization's website. "The extensive record keeping requirements that will be required by the Copyright Royalty Board alone will add hundreds, if not thousands of dollars to the true cost of a performance fee." It's relatively easy to do that book-keeping if you have a narrow playlist and rarely deviate from it, as is the case with most large commercial radio stations. But if you have a library of thousands of albums and 45s, many of which were never reissued on CD, and if you allow your DJs to choose which ones they play--or even to bring in still more music from their personal collections of rare soul or jazz or bluegrass or electronica obscurities--then tracking the data suddenly becomes a full-time job.

Worse yet: Though the rhetoric around the proposal focuses on the benefits to musicians, much of the money won't make it to the artists in the first place. In part that reflects the fact that the fees go not just to the performers but to the copyright owner, which frequently means the record company. But it also reflects the corruption in the industry, which legislation like this has probably abetted.

As we've seen time and time again, if the RIAA supports it, it's not good for consumers. It's not good for musicians. It's not good for anyone but a small selection of record labels. Hopefully, Congress recognizes this for the pure money grab it is and shuts it down.

Filed Under: copyright, performance rights, radio, recording industry, riaa
Companies: riaa

Class Action Lawsuit Against The RIAA For 'Stolen' Money?

from the this-won't-end-well dept

A bunch of folks have been submitting the story about how Jammie Thomas' new lawyer, Kiwi Camara (a Charlie Nesson protege) and Nesson himself are apparently preparing to file a class action lawsuit against the RIAA in an attempt to get back the $100 million plus that they claim the industry "stole" in its settlements. This may be interesting from an academic standpoint (or from a PR/circus standpoint), but I have difficulty believing it will get very far in terms of actually succeeding. I do find the settlements distasteful, and bordering on extortion ("pay up or we sue" is really questionable), but earlier attempts at similar lawsuits haven't gone very far at all. Still, considering that the RIAA has always insisted that its entire legal campaign was part of a grossly misguided and ultimately self-damaging "PR campaign" perhaps it's okay that someone is effectively doing the same thing on the other side.

Filed Under: charles nesson, extortion, kiwi camara, lawsuits, money, riaa
Companies: riaa