Digital Watermarks Are Not The Answer

from the the-next-rabbit-hole dept

It was quite predictable that as the recording industry finally realized that DRM was a bad idea that it would move on to digital watermarking. The idea sounds appealing. It doesn't have the feature that people hate about DRM: preventing you from doing what you want with the music you've purchased -- but it does have a number of other downsides. First, it tends to degrade the quality of the audio. Second, it's often relatively easy to remove the watermark, making it effectively useless. Third, if watermarks are used to link a specific file to a specific user (which the industry insists it isn't doing... yet), it suddenly becomes a huge liability just to have those music files. Imagine if you lose your iPod full of watermarked tracks, and all of those tracks find their way onto file sharing sites? Even more importantly, the whole concept of watermarking is counterproductive to what music files should be about. If the industry were smart and understood the basic economics of what was happening, they'd want people to be sharing music. They should want people to be their biggest (free!) promoters of music. They should want people to be spreading the music of their musicians as a way to get the word out. The whole concept of watermarking goes against that very idea. It's more backwards thinking from an industry that is more focused on protecting an old way of doing business, rather than recognizing the opportunities of a new way of doing business.

Filed Under: copy protection, drm, recording industry, riaa, tracking, watermarks
Companies: riaa

EFF Files Brief In Howell Case, Says 'Making Available' Is Not Infringement

from the infringement-needs-to-show-infringement dept

While much of the attention paid to the RIAA's case against Jeffrey Howell has been on the incorrect assertion that the RIAA was claiming Howell infringed simply for ripping his own CDs, what the RIAA is actually claiming is still quite questionable. What it was really claiming was that simply by putting any files (ripped or downloaded) into a shared folder, he was infringing. This is the same "making available" theory that the RIAA has been pushing for quite some time -- despite having courts clearly say that making available is not infringement. Of course, by constantly pushing this point in case after case (and usually losing), the RIAA has found a few judges who agree -- though, it almost always comes in cases where the defendant is acting as his or her own lawyer, rather than having a real lawyer defend the case. The key question is what part actually constitutes infringement. Is it actually having the copy made, or just offering the file up? With most courts agreeing that the actual act of making the copy has to occur, the EFF has filed an amicus brief in the Howell case, notifying the judge of all the various cases where "making available" has been rejected as being infringement.

Filed Under: eff, howell, making available, riaa
Companies: eff, riaa

EMI Threatens To Leave IFPI

from the change-your-strategy dept

Last November, we noted that the "under new management" major record label EMI was discussing the possibility of scaling back its support for the RIAA and the IFPI, after realizing that many of the group's actions were counter-productive and had helped lead EMI and the other record labels down the wrong path. The moment of awakening for EMI appears to have been Radiohead's experiment. Apparently, EMI is quite serious about this. Reader Jon notifies us that EMI has told the IFPI that it will leave the group at the end of March, if it doesn't shift its strategies towards helping the recording industry, rather than its current strategy, which has clearly not been working. Part of the proposal is that the IFPI merges with the RIAA, rather than having the two act as separate groups -- though, the two often do seem to work together. Either way, this could represent a huge step forward, as it appears that at least one of the major labels has finally realized what plenty of people have realized for nearly a decade: the strategy of focusing on protecting an obsolete business model while suing your biggest fans is more damaging than helpful. Getting EMI to pressure the industry to realign and rethink its strategies is a huge step forward -- even if it's happening about seven or eight years late.

Filed Under: recording industry, trade associations
Companies: emi, ifpi, riaa

Sometimes You Wonder If The Recording Industry Is Purposely Destroying Itself

from the no-more-pandora-in-the-UK dept

Back in May, we noted that the recording industry, in a shooting-itself-in-the-foot method, was demanding that music discovery site Pandora block all non-US listeners, over an argument concerning the exact licensing terms of the music that Pandora streams. The recording industry has been demanding that Pandora sign separate licensing agreements in every country, or it must block them. Now, for anyone who has actually used Pandora, it takes all of about three seconds to recognize that it's the type of service that should be the recording industry's best friend. You put in songs, musicians or even styles of music that you like, and Pandora finds you new music that it plays in a stream, like a personalized radio station. Pandora makes it incredibly easy to both discover and buy new music. If I worked for a record label, I'd be running around the world heavily promoting Pandora, and working with it to promote new artists. Yet, instead, in true RIAA fashion, it's demanding a tithe instead. While Pandora has been blocked in many countries since back in July, it kept going in the UK, believing that it would work out a reasonable solution there. Apparently not. As countless UK-based Pandora fans have been submitting over and over again, Pandora is now shutting off access to UK listeners. What does this accomplish? As far as I can tell, all it does is take away a wonderful music discovery service that helped push people to actually buy music. Only in the minds of recording industry execs would a company doing free advertising for you be seen as something that needs to be shut down.

Filed Under: music, recommendations, streaming
Companies: pandora, riaa

Washington Post (Quietly) Admits It Got The RIAA Personal Copying Story Wrong

from the on-page-2-of-the-corrections,-of-course dept

It took them a week of columnist Marc Fisher defending his incorrect story on what the RIAA actually said in the Howell case before the Washington Post quietly issued a correction (pointed out by Greg Sandoval over at News.com). Again, I think this is important, because even though the RIAA did a terrible job defending its position, that's no reason to take the RIAA's comments out of context. The other bit of good news to come out of all of this is that the RIAA now has a sense of what would happen if it actually did try to go after people for personal copying of CDs.

Filed Under: copyright, howell, marc fisher, riaa
Companies: riaa, washington post

Should RIAA Win Against Jammie Thomas Be Tossed After RIAA Admits It Misspoke On The Stand?

from the one-would-think... dept

Well, well, well. This morning when we pointed out that the RIAA's responses to the whole Howell affair were rather lacking, we missed an important point. In the NPR debate between the RIAA's Cary Sherman and the Washington Post's Marc Fisher, while Sherman may have had the stronger case (this one time!), he did make one interesting statement that could have much wider implications. When pushed on the Howell case, rather than admitting he was wrong, Fisher moved on to a different situation: the infamously incorrect statements by Sony BMG exec Jennifer Pariser, who said on the stand, in response to a question about whether it was okay to make a personal backup copy from a CD, that saying so was "a nice way of saying, 'steals just one copy.'" As we (and many others) pointed out at the time, this statement is blatantly false.

When Fisher brought it up, Sherman responded by saying:

"The Sony person who (Fisher) relies on actually misspoke in that trial. I know because I asked her after stories started appearing. It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry."

This actually is somewhat believable, as the industry does believe that downloading a single copy is the equivalent of "stealing just one copy," (even if that's questionable in itself). However, Sherman also claims "other reporters and bloggers had called about Pariser's quotes and chose not to write about them after learning she had erred."

It's not clear who those other reporters and bloggers are, but it's a bit surprising that they would then choose not to write about it. After all, it was a recording industry exec admitting she had made false statements under oath -- and those false statements were part of the case that helped Jammie Thomas lose her lawsuit. That has folks like Ray Beckerman wondering if the RIAA had notified the judge that Pariser had misspoke. Considering that we never heard the judge tell the jury to ignore those statements, at the very least, it would appear that the jury was never told that Pariser misspoke -- which certainly would suggest that Thomas has grounds to call into question that original ruling against her.

Filed Under: cary sherman, copyright, jammie thomas, jennifer pariser, lawsuits, riaa
Companies: riaa

RIAA Flubs Chance To Actually Respond To Questions About CD Ripping

from the nice-work,-guys dept

For years, we've been a fairly persistent critic of the RIAA's tactics. It's not, as some incorrectly suggest, because we are "anti-RIAA" or that we somehow dislike the RIAA. Not at all. We simply believe their policies are incredibly damaging. First, they're damaging to fans of music who are suddenly treated like criminals just for wanting to listen to music. Second, they're damaging to musicians, who are being lied to about what business models make sense in a digital world. Most importantly, they're damaging to the very labels that the RIAA represents -- and the fact that the RIAA's continued strategy has resulted in increasing troubles for the major labels it represents as well as major acts defecting left and right at a time when the rest of the industry is thriving, seems to bear that out. In fact, I always find it amusing that providing the RIAA with accurate and useful advice about why its strategy is damaging and even providing alternative strategies could possibly be seen as being "anti-RIAA." It's not. It's anti-"dumb policies" -- policies that hurt everyone, including the record labels. For years, we've been ridiculously optimistic that one day, maybe (just maybe!) the powers that be at the RIAA would wake up, realize what a huge mistake they've been making, and start focusing not on treating fans like criminals, not on sneaking around Washington DC to mislead politicians into passing unnecessary and dangerous laws, but on new business models that actually make everyone better off.

That's why it shouldn't be surprising (or "ironic") that we pointed out where the Washington Post and others were wrong in describing a particular lawsuit filed by a record label against Jeffrey Howell. It does no one any good to fight that battle until it's actually necessary. In fact, by saying the RIAA is saying something they have not, it only gives the RIAA more ammo to suggest that those of us who are legitimately critiquing their policies are simply "making stuff up."

So, while I disagree with folks saying that it's impossible to unfairly malign the RIAA, it is rather telling (as pointed out at that same link) to look at how the RIAA has responded to this debate. If they were smart and had any strategic PR sense at all (I know, I know, stop laughing...), someone at the RIAA should have come out quickly and made a clear statement saying: "Ripping CDs for personal use is, and always has been, perfectly legal. We will not, and have not, sued anyone who does that." It's an easy, proactive statement that the RIAA could make. It wouldn't be conceding anything, as it's a factual statement based on the law. Instead, the RIAA has remained mostly quiet or made more careful statements, rather than just coming out and saying: "Yes, you can rip your CDs for personal use." And, for that, the RIAA should absolutely be maligned -- not because of any hatred or anti-RIAA sentiment -- but because it's just dumb and self-defeating.

Filed Under: copyright, fair use, howell case, ray beckerman, riaa, ripping
Companies: riaa

Why Should XM Have To Pay The Record Labels In Order To Innovate?

from the a-waste dept

In a bit of unfortunate news, it appears that XM has given in and decided to settle its dispute with the record labels. The company has already settled with Universal Music, with the other major labels expected to quickly follow suit. The Reuters article incorrectly states that this was a patent infringement suit (fact checking, anyone?) but it's actually a copyright issue, where the record labels were using copyright to try to prevent XM from innovating. Specifically, XM has a license so it can play music from the record labels and it fairly pays all the royalties required. The problem, though, was that XM decided to introduce a new device, the Inno, that allowed XM subscribers to record songs and listen to them later. That's a perfectly legitimate use -- and the courts have backed up the fact that "time shifting" by recording programs is perfectly legal. Not so, according to the RIAA, who suddenly felt that because people could record the music from XM, XM now had to pay another licensing fee on top of the licensing fee it already paid. This went directly against what the RIAA had said earlier, when it promised that it would never use copyright laws to prevent new technologies like the VCR, TiVo or the iPod. The Inno clearly fits in as a device just like that... and yet, here was the RIAA demanding extra money to allow such a device to exist. It's really too bad that XM wouldn't continue this fight in court, as it's clearly on the right side -- but with its economic troubles and the impending merger with Sirius, it looks like the company decided it was easier to just pay off Doug Morris and his cronies to leave it alone. Chalk another short-term victory up for Morris, who continues to do everything possible to win in the short-term at the expense of the long-term.

Filed Under: innovation, recording industry, riaa, royalties
Companies: riaa, universal music, xm

RIAA NOT Saying That Personal Copies Are Illegal (Yet)

from the no-need-to-exaggerate dept

I believe that lawyer Ray Beckerman has done some wonderful things in defending people being bullied by the RIAA and accused of infringing on copyrights with very little evidence. He also does a fantastic job keeping people informed on the issues with his Recording Industry vs. The People blog. However, his latest post about the RIAA changing their argument to say that making personal copies to one's own computer is infringement is misleading at best. And, worse, many big sites are repeating the claim. Unfortunately, it's not quite true and it seriously hurts the arguments of those who think the RIAA is going too far to mislead in this way. What the RIAA's lawyers clearly seem to be saying is that putting mp3 files that you legally ripped into a shared Kazaa folder makes them no longer authorized. In other words, this is simply an extension of their old standby, the argument that "making available" is infringement. The RIAA's argument here seems to be that putting content in a shared Kazaa folder is "making available," and if making available is infringement, then clearly these files infringe.

Now, it's quite fair to argue that point (and argue it we should, because there are troublesome implications if a shared folder is all you need to create infringing content). However, that is not, in any way, saying that simply ripping your CDs is infringement, and it weakens the arguments of Beckerman and other supporters to take the RIAA's argument out of context and present it as something it is not. The RIAA certainly takes others' arguments out of context and exaggerates statements to suggest that anyone questioning their strategy is just a "pirate." However, that's no reason to sink to the RIAA's level. Instead, why can't we be intellectually honest and focus on what the RIAA is actually saying and why that is problematic? There's no reason to exaggerate the RIAA's stance or take it out of context. It's troublesome enough in real life without having to twist it further.

Filed Under: mp3s, personal copies, ray beckerman, riaa, shared files
Companies: riaa

Labels Concede That File-Sharing Isn't So Bad After All

from the a-little-late dept

Imeem, a social networking site that was in the recording industry's crosshairs earlier this year for allowing file-sharing on its network, has pulled off an impressive feat. This summer it settled its lawsuit with Warner Music by promising to give Warner a cut of advertising revenues from the site. Now the Wall Street Journal is reporting that it's signed similar deals with all four major labels, meaning that Imeem is now the first website whose users have the music industry's blessing to share music for free. What's especially striking about this is that for the last decade, the fundamental principle of the labels' business strategy is that sharing music without paying for it is stealing. They drove Napster, AudioGalaxy, Grokster, Kazaa, and other peer-to-peer file-sharing services out of business on that basis. As we pointed out way back in 2000, all this accomplished was to drive file-sharing underground where the recording industry couldn't get a cut of the profits. Had they approached Napster in 2000 the way they approached Imeem this year, they could have been collecting ad revenue from every file-sharing transaction over the last seven years. Instead, they wasted a lot of money on lawsuits, angered a lot of their customers, and ultimately still had to concede that music sharing might be OK as long as they get a cut. The only significant difference between Napster and Imeem is that Imeem only allows you to play music on its website, whereas Napster allowed you to download songs to your hard drive. But this isn't as big of a difference as it might appear at first glance. The Imeem website doesn't provide a "download" button, but there's no DRM involved, and it's quite easy to download music files from Imeem using third-party tools. And because Imeem's site doesn't use DRM, Imeem downloading tools are probably legal under the DMCA. So what we have here is the de facto legalization of Napster-like sites, as long as the record labels get a cut of the advertising revenue. It's an exciting development, albeit one that should have happened seven years ago.

Filed Under: advertising, file sharing, p2p, record labels, riaa
Companies: imeem, napster, riaa, universal