ISPs Ask Judge To Reconsider Order Allowing Copyright Trolling To Move Forward

from the time-to-reconsider dept

There have been a bunch of rulings in a variety of district courts around the country rejecting a variety of ways in which copyright trolling operations have been seeking to use the judicial system as a part of their business model -- not to actually take anyone to court, but merely to (a) identify people they can threaten and (b) threaten them with the possibility of a lawsuit if they don't pay up. Thankfully, an increasing number of judges have been calling the trolls out on this, and saying they won't be a part of this. Usually this comes in the form of rejecting a request for expedited discovery (which would allow the trolls to subpoena subscriber info from ISPs) or arguing that lumping together so many users into a single case was improper.

However, there has been one major exception to these rejections: the case in the DC district court by Judge Beryl Howell... who just happens to have been a former RIAA lobbyist, who only recently left that job to take a seat on the bench. The Howell ruling is regularly cited by trolls as proof that there's nothing wrong with the way in which they pursue these lawsuits -- ignoring a massive number of rulings that say otherwise.

The ISPs in that original case, though, filed by AF Holdings, represented by Prenda Law (which, you may recall, is connected to John Steele), are asking Judge Howell to reconsider (especially in light of all those other rulings). On top of that, they're saying that if she won't reconsider, they'd like to take the issue up to the appeals court before proceeding with the rest of the case. That could become important, as it would be the first time an appeals court weighs in on this. Some public interest groups, including the ACLU and EFF, have filed an amicus brief as well, asking Judge Howell to change her decision concerning discovery.

The hearing on this is today, and we'll let you know what happens.

Filed Under: aclu, beryl howell, copyright troll, eff, riaa, shakedown
Companies: af holdings

Music Industry Creates New Royalty Rates... But Did They Do So For Systems That Don't Require Royalties?

from the seems-like-it dept

There's been some buzz in music circles about the news that the RIAA, the NMPA (music publishers) and the DMA (digital music companies) have reached an "historic" agreement on mechanical royalty rates, potentially avoiding what often is a contentious rate setting process at the Copyright Royalty Board (CRB). The CRB still needs to approve the deal, but the fact that an agreement was reached outside of having to go through such a contentious process, where the results often seem arbitrary and disconnected from reality, is mostly a good thing.

That said, I do have some concerns. Because beyond setting the rates for existing mechanical licenses, the groups also sought to create new rates for new types of service. THR has the details:

• Mixed service bundles (for example, a locker service, limited interactive service, downloads or ringtones combined with a nonmusic product such as a mobile phone, consumer electronics device or Internet service)
• Paid locker services (subscription-based locker providing on-demand streaming and downloads)
• Purchased content lockers (a free locker functionally provided to a purchaser of a permanent digital download, ringtone or CD where the music provider and locker have an agreement)
• “Limited offerings” (subscription-based service offering limited genres of music or specialized playlists)
• Music bundles (bundling music products such as CDs, ringtones and permanent digital downloads)

Now, to some extent it's nice to see them coming to agreements with the idea of allowing certain new types of sites to easily make it clear that they are licensed under a clear rate, and move forward with that. But some of this is concerning in that it partly seems like a way to overclaim rights that copyright doesn't, in fact, cover: for example, the license rates for locker services. As has been discussed, it's not clear that locker services need to pay any copyright under existing law. If it's just about enabling users to store and listen to their own music, what copyright issue is there? Yet it appears that at least some such services may be expected to pay these mechanical rates.

Filed Under: copyright royalty board, dma, nmpa, riaa, royalties

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 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

Why Are Police Going After Mixtapes... And Why Are They Bringing Along RIAA Reps?

from the are-they-really-that-stupid? dept

You may recall the story from about four years ago of the RIAA getting a SWAT team to raid a popular DJ for making mixtapes. Of course, mixtapes are pretty common -- especially in (but not limited to) the hiphop world. Hell, remember Lily Allen was distributing her own mixtapes off of her own website, which she later claimed was controlled by EMI. Mixtapes tend to be considered a "murky" area of copyright law. In most cases, they do involve some level of infringement, mixed with some authorized works. They're often used to promote a new artist, by mixing his or her work with more established artists. Record labels and producers regularly send out pre-release tracks to top DJs hoping to get them into a hot mixtape, knowing that it will be a boon to those artists.

Of course, when they do so, it's never with an explicit license that this is okay. I've seen directly how these things work, and it usually involves an email -- from a label or a "promoter" hired by the label -- sent to a DJ or to a popular music blog, highlighting some new song that they want to push. Everyone involved knows what's happening. The labels want the song out there. But there's no explicit license, and the whole thing works on the assumption that the labels won't ever go after the people promoting their work.

But, it doesn't always work that way. We've seen it in some of the domain seizures by Homeland Security, some of which included music blogs that were a part of the blogging side of this promotional equation. And, just like the mixtape arrests a few years back, the same thing appears to be happening again. Emily Kaiser, from Washington City Paper, points us to an article that WCP recently put out describing a police raid of a popular studio because its owner, a popular DJ, was selling some mixtapes.

From the article, it seems pretty clear that, like most mixtapes, this one included a mix of authorized and unauthorized works. While the guy who owns the studio, Jeremy Beaver (or DJ Boom), claims to have the rights to all the music, and claims to have worked with all the artists on the mixtape, it appears, again, that this may be only partially accurate. Beaver, for a time, worked at XM Radio as "director of hip hop programming," and it sounds, from the article, that he may have taken some liberties in using recordings from his time there. Other songs, however, definitely do involve some big name hip hop artists, like KRS-One, who not only used Beaver's studio, but created some songs with shoutouts to the studio and Beaver himself.

From a technical standpoint, it seems likely that at least some of the mixtapes were infringing. But, if you end your analysis there, you're missing the point. These mixtapes are everywhere, and the major record labels quite directly support them all the time. These somewhat random arrests of DJs that the labels themselves rely on seems incredibly short-sighted. From Beaver's standpoint, while he insists that he has the rights to release all the music as a mixtape, the reality is that he probably views the mixtape as something of a portfolio of work that he's had some hand in, whether producing at his studio or via his former work at XM.

Both things make sense. Mixtapes as a promotional vehicle have been fantastic and tremendously valuable to the industry and to many, many artists -- which is why all of the major record labels support them quite a bit. On top of that, the ability for a producer DJ to be able to show off his or her skills in a portfolio also makes sense. The problem, of course, is that due to the way copyright laws are set up today, it can likely be against the law. That's a problem with the law -- not with the makers of mixtapes.

The second big problem here, however, is the role (of course) of the RIAA in all of this. It likes to put its head in the sand concerning the popularity and value of mixtapes, but the really troubling part is that it appears to have actively taken part in this particular raid:

Beaver says he caught sight of a man in a dark suit standing in the background who resembled the late comedian W.C. Fields. Fields, he recalls, seemed to ooze authority and contempt. He eventually told Beaver who he was, or at least what he represented: the Recording Industry Association of America.

This raises all sorts of questions. Why would the police allow an RIAA representative to come along on a "bust"? Bringing a private corporate interest along on a raid does not seem reasonable. Of course, the flipside remains an important question as well: what are the police doing busting down mixtape creators anyway? The whole thing seems like a typical boondoggle of epic proportions involving clueless law enforcement officials and hamfisted RIAA reps, seeking to "make a statement," by going after the very people they rely on to promote their work.

Filed Under: copyright, mixtapes, police, riaa

RIAA Threatening ICANN About .music; Claiming It Will Be Used To Infringe

from the when-you're-an-organization-of-lawyers... dept

Oh look, the RIAA is overreacting yet again -- and doing so the only way it knows how: by rolling out the legal threats. This time it's threatening ICANN over its new top level domain program, which allows all sorts of new TLDs to be registered -- including planned proposals for a .music domain. But the RIAA isn't happy about this, because:

We are concerned that a music themed gTLD will be used to enable wide scale copyright and trademark infringement.

I'm sort of at a loss how the specific TLD makes any difference whatsoever in enabling infringement. A website's a website, no matter what the TLD is. How will having a new TLD enable any more infringement at all? It seems like the real goal of this is (of course) to get ICANN to act as a copyright cop for any such TLD. Just as the RIAA has sought to make copyright cops out of ISPs, the government and other third parties, now it's seeking help from ICANN, who hopefully knows better. So it suggests that it would like to "work with ICANN... to ensure this type of malicious behavior does not occur."

And, of course, in typical RIAA fashion, if ICANN says no, the RIAA plans to go legal:

We strongly urge you to take these concerns seriously... we prefer a practical solution to these issues, and hope to avoid the need to escalate the issue further.

I'd love to see the RIAA try to "escalate the issue further." What's it going to do? Is any court really going to go so far as to say that just because something that has not yet been created, and might possibly in some weird stretch of the imagination be used for infringement, that ICANN has to block it?

Filed Under: domains, icann, music, riaa, tlds, top level domains
Companies: icann, riaa

RIAA Spent $90 Million In Lobbying The US In The Past Decade

from the and-musicians-got? dept

If you want to know why US politicians seem to always rollover and support the preferred legislative agenda of the recording industry, perhaps it's because the RIAA has spent $90 million in lobbying in the US alone since 2000 -- and the numbers have increased as the decade wore on. In 2000 the RIAA spent $4 million in lobbying, but by 2009, it spent $17.5 million. Of course, the spend has been somewhat in inverse correlation to the success of the major record labels. Considering how often we hear people assume that correlation of file sharing stats to record label revenue means file sharing is the cause of the labels problems, shouldn't they also claim that the more the RIAA spends on lobbying, the worse the labels do as well? Perhaps the answer for the record labels is to get the RIAA to stop lobbying.

Filed Under: lobbying, riaa
Companies: riaa

PC Mag Responds To Legacy Recording Industry's 'Complaint' Letter

from the hello,-we're-the-press dept

We recently wrote about a bizarre and mis-targeted complaint letter sent by the bosses of pretty much every old school legacy music industry lobbying/trade group, officially sent to Ziff Davis to complain about two articles concerning Limewire alternatives, suggesting that the articles were promoting unauthorized copyright infringement. Of course, as we noted, these old school recording industry bosses were so upset, they failed to notice that one of the articles in question wasn't even published by PC Mag (the target of the letter), but by PC World, a competing publication put out by an entirely different company, IDG.

Apparently, in their haste to send a complaint to the wrong publisher, these geniuses of the recording industry also failed to leave an address for a reply letter, so PC Mag's Lance Ulanoff responded with a public response letter, which basically tells all of those organizations to learn what it means to be the press reporting on a topic, as opposed to an advocate pushing a particular viewpoint:

The story isn't encouraging or discouraging anything. That's not our role. PCMag's job is to cover all aspects of technology, which includes the products, services and activities that some groups and individuals might deem objectionable. We covered these Limewire alternatives because we knew they would be of interest to our readers. We understand that some might use them to illegally download content. We cannot encourage that action, but also cannot stop it. Reporting on the existence of these services does neither.

We have, obviously, written about many online and offline services, including some that these groups might consider legitimate or "legal." However, the fact is that some users store and manage illegally gained content in music applications like iTunes. We would not stop covering these utilities simply because some users place illegal or even inappropriate content in them.

More importantly, Ulanoff points out the same thing we did in questioning what the hell these industry groups thought they would accomplish in suggesting the press not cover a story:

It worries me that the music industry took this action, because it reeks of desperation. The RIAA and other music industry organizations have spent the better part of the decade fighting the digital transition, with only a shrinking business to show for it. In recent years, though, the fist of anger has turned into at least one open hand as the music industry embraces the once shunned digital music industry. Unfortunately, that warm embrace, and the change that comes with it, are not happening fast enough. Clearly the music industry is still losing money to music piracy and even the recalibrated profit margins brought on by legal music sharing services.

It's time for these music execs to pull their collective heads out of the sand and fully acknowledge and accept all the ways their industry has changed. They also have to understand that nothing will stop technology's inexorable march forward. Things will continue to change. Music downloads and sharing will never go away. These execs have to find a way to use all that technology allows and make a business that rivals the good old days of vinyl, cassette tape and even CDs.

We will continue to cover it all--as we must.

Not a particularly surprising response, but kudos to PC Mag for sticking to its principles, and not feeling bullied by these industry folks.

Filed Under: complaints, pc mag, riaa
Companies: limewire, riaa, ziff davis

Did The RIAA Really Just Come Out In Support Of 'Opt-In' Copyright? [Updated]

from the that-would-be-big dept

Here's some potentially big news. The RIAA, who has always appeared to be in favor of ever expanded copyright, may actually be changing its mind. Two separate reports out of the National Academies' meeting on "the impact of copyright policy on innovation" note that RIAA president Cary Sherman apparently stated that he now believes an opt-in registration "formalities" approach to copyright might make sense. Derek Slater, on Twitter, summarized Sherman's statement as:

"my opinion is that pre-Berne system, requiring some sort of registration, makes more sense today."

Of course, the MPAA and the BSA apparently disagreed, with the BSA saying copyright should definitely be opt-out rather than opt-in. That said, it is nice to see the MPAA come out in favor of flexible fair use policies, though I'm sure that's as an alternative to actually improving copyright law.

I've asked the RIAA for comment (updated below) on whether or not this represents a change of position for them, and whether the group would now support an opt-in copyright system that only gives copyright to works that are formally registered (as we had for many, many years). If true, this would really be a huge deal. While an opt-in system has many problems, if set up properly, it's a lot better than the current opt-out system, which obliterated the public domain. An opt-in system at least makes it much easier to feed the public domain.

Update: The RIAA responded to my request as to whether or not this was a policy change, in response, I was told:

His basic point (and I'm quoting from his remarks) was that "we need better ways to distinguish when copyright is a beneficial property right, and when copyright is a meaningless and unwanted right." He was later asked what he meant by this, and he responded that it may be time for creators to affirmatively assert copyright, rather than have it automatically granted to them whether they want it or not. He also explained that this was a personal view, not an RIAA position.

The note also pointed out, correctly that there really "is no way to opt-out" of copyright today. So, while it's not the official RIAA position, I'm still really surprised that Sherman would feel this way, but kudos to him for making a statement that would seem at odds with the RIAA's standard position on copyright.

Filed Under: cary sherman, copyright, formalities, opt-in, riaa
Companies: riaa

RIAA Defends Lawsuit Spending... But Reminds Everyone How It Helps Screw Over Musicians

from the who's-rationalizing-now? dept

A few weeks ago, there was a lot of attention paid to the story of how the RIAA had spent $17 million and got back $391,000 in settlements. The RIAA is now defending its legal strategy by claiming that the lawsuits had other benefits, such as injunctions against certain sites and (my favorite) to "foster a respect for the rights of creators." It's difficult to see how that's working, as the legal strategy has not only mobilized many music fans against the RIAA and ridiculous copyright laws, but has even gotten top musicians to speak out against the RIAA and its views on copyright. On top of that, given the continued increase in file sharing usage, the whole claim is a joke.

Separately, though, the RIAA says that the numbers are misleading because "sometimes recoveries go directly to record label plaintiffs."

But that raises a different question. If the labels are getting this money... has any of it been passed on to artists? In the discussion on the original story, we had one commenter, who works as an auditor in the music licensing field, who pointed this out and noted that this money isn't going to artists or songwriters at all. We had pointed this out back in 2006, when part of the Google buyout of YouTube involved paying off the big record labels... and that deal was structured in a way that those labels didn't have to share that money with artists.

We've already seen how record label accounting is used to screw over musicians, but this is an important point as well. The RIAA positions itself as defending artists' rights. It talks about how these lawsuits are carried out to protect musicians and help those musicians earn a living. But it's becoming increasingly clear that of the money that actually comes in from these lawsuits, very little of it ever is seen by the artists the labels claim they're protecting.

Filed Under: lawsuits, riaa, success
Companies: riaa