Presidential Candidates Asked If They've Stopped Beating Their Wives With Weak Copyright Laws

from the big-content-propaganda dept

Patrick Ross apparently has no shame. For years, at the Progress and Freedom Foundation, he presented ridiculous statement after ridiculous statement about intellectual property. There was the one about how fair use harmed innovation. Then there's my personal favorite, where he argued that the DMCA shouldn't be changed because markets shouldn't be regulated -- ignoring the key point that the DMCA, itself, was a regulation that was tremendously distorting the market. After attacking me for suggesting that his viewpoints were influenced by the fact that he was paid to promote the positions of the entertainment industry (when I hadn't even suggested that), Ross went on to make it official that he was shilling for the entertainment industry, by creating a super-lobbying group that represented all the different big copyright groups under one umbrella: The Copyright Alliance, made up of the MPAA, the RIAA, the BSA, the ESA and others.

Ross' latest stunt is to demand that all presidential candidates answer his survey of stunningly loaded questions about copyright. The questions are all of the "and have you stopped beating your wife?" variety -- even causing the reporters attending Ross's press conference to make fun of the questions as being ridiculously leading. Of course, the questions are publically available (pdf) for anyone to view. Let's go through them one by one in order to help the presidential candidates step around the incredibly loaded nature of the questions to do a better job with them. Hopefully, Ross won't accuse us of a copyright violation in reposting the questions.

• How would you promote the progress of science and creativity, as enumerated in the U.S. Constitution, by upholding and strengthening copyright law and preventing its diminishment?
  
  Well, first, it might help to point out that the U.S. publishing industry was initially built on extremely loose copyrights, so the very idea that strengthening copyright law is necessary to promote progress of science and creativity is provably false. Even the biggest defender of copyrights these days (and a backer of Ross' organization), Disney, owes much of its early success to being able to use the characters others created. That, alone, should be argument enough for a stronger public domain, rather than stronger copyright. On top of that, plenty of research has shown that by strengthening copyright, you will often diminish how much content is created. More to the point, with the rise of modern communications tools, and a world where content is made by everyone, rather than just a small group of professionals, the entire concept of copyright needs to be revisited from scratch to figure out what really is necessary.
  
  
• How do you feel the rights that have served our economy and spurred creativity in the physical world should apply in the digital world?
  
  The rights that have served our economy and spurred creativity are quite important. The First Amendment, for example, is a key right, preventing the government from passing laws that take away freedom of speech. It's that freedom that is important and clearly should be (and is) extended into the digital world. In fact, we should reinforce that by removing dangerous and creativity harming restrictions on speech, found in laws like the DMCA that hold back perfectly legitimate and reasonable uses of content, often hindering creativity.
  
  
• How would you protect the incentive to create by committing sufficient resources to support effective civil and criminal enforcement of copyright laws domestically and internationally?
  
  There's a false assumption there, that the incentive to create is copyright laws. If you look at the incentives to create historically, you'll see that copyright has rarely had much to do with it at all. Instead, plenty of other factors, often coming from the marketplace had much stronger incentives. In fact, copyright has all too often held back incentives to create. As you well know, plenty of people created plenty of content prior to copyright existing. And, famously, once copyright was put in place, it often gave those who had created content earlier less incentive to create, as they could just sit back and rely on royalties from earlier content. More importantly, modern communications systems have shown that the incentive to create often has little to do with monetary rewards. Much of the internet is filled with user-generated content that was created not because of copyright, but for many other reasons. In fact, we're seeing a tremendous explosion in content creation these days -- often in spite of copyright rather than because of it. So, the best way to protect the incentive to create is to continue to get restrictions on creation out of the way, remove barriers to creation, expand the public domain, broaden the definition of fair use and get rid of pointless restriction such as those found in the DMCA.
  
  
• How would you ensure inclusion of copyright protections in bilateral, regional and multilateral trade agreements to protect creators and foster global development?
  
  Aha! A trick question! Why would we want to include monopoly protections in a free trade agreement? Monopoly rights deserve no place in any free trade agreement -- and, in fact, are against the very idea of free trade.
  
  
• How would you protect the rights of creators to express themselves freely under the principles established in the First Amendment?
  
  An excellent and important question. I would do so by getting rid of much of the DMCA, which unfairly puts excessive restrictions on the rights of creators to express themselves freely. I'd also look towards lowering the copyright burden on creators, expanding the public domain, rolling back unlimited copyright extensions and increasing the power of fair use -- all with an eye towards protecting the rights of the majority of content creators today not to be bullied by a bunch of companies with huge lobbying budgets and increasingly obsolete business models.

Thanks, Patrick, for giving us the chance to address these important questions.

Filed Under: bsa, copyright, copyright alliance, esa, mpaa, patrick ross, presidential campaign, riaa

Bush Administration: Happy, But Wrong, About RIAA Courtroom Win

from the effective-policy? dept

It's no secret that entertainment industry execs tend to exaggerate the impact of their "successes" -- and it would appear that such thinking works with politicians as well. President Bush's Coordinator for International Intellectual Property Enforcement made a statement to applaud the RIAA's courtroom victory last week, saying that it shows that the legal system is working, and noting that: "Cases such as this remind us strong enforcement is a significant part of the effort to eliminate piracy, and that we have an effective legal system in the U.S. that enables rights holders to protect their intellectual property." Except, of course, that's simply politician speak. This win is not going to help the RIAA "eliminate" piracy. In fact, few think it will have any dent at all. And, it's hardly an "effective" legal system if the end result is just as much infringement and a ton of people pissed off that a single mom is being fined a quarter of a million dollars for wanting to listen to a few pop songs. If anything, it makes more and more people wonder what the hell is wrong with the legal system -- and the companies that insist this is the best way to keep their obsolete business model in place.

Filed Under: copyright, president bush, riaa
Companies: riaa

RIAA Wins Case, Gloats

from the this-won't-help dept

As we expected this morning, the RIAA has won its lawsuit against a woman for sharing files. This is unfortunate in the long run, as the decision is actually going to hurt the companies the RIAA represents more than if it had lost the case. That's because the RIAA will take this as a validation of its "sue our fans" strategy, rather than realizing it's finally time to try a different model. In the meantime, the woman in the case, Jammie Thomas, never should have let the case go this far as there appeared to be plenty of evidence that she actually did break the law. The RIAA often has weak evidence, but in this case the evidence was much stronger. Unfortunately, that distinction won't be made by most, and they'll simply assume that if the RIAA won this case, it should win many others. The RIAA, of course, wasted no time in gloating about the decision and is using this to push others to settle rather than fighting the RIAA lawsuits. This actually is reasonable advice if, as in this case, you were guilty of breaking the law and the RIAA has the evidence to show it. The problem is that's often not the case -- yet, again, that important point will get lost.

Filed Under: copyright, lawsuit, riaa
Companies: riaa

Will Investors Pressure RIAA To Change Its Ways?

from the we-can-hope dept

The Motley Fool had an article last week predicting that the RIAA will soon be forced to abandon its lawsuit-happy business strategy, as a number of lawsuit targets have not only been winning in court but also getting their legal fees covered by the recording industry. The article makes a lot of points that Techdirt has been making for years, but a couple of things are particularly interesting about the article. First, the Motley Fool is a mainstream investment site that's read by a ton of people on Wall Street. If the financial press starts writing stories about how the lawsuits are a waste of money, these companies could start to feel increased pressure from their shareholders to find a new strategy. Secondly, the article makes an important point about the effects of file-sharing on musicians: file-sharing can hurt artists by reducing their sales, but it can also help them by getting the word out about their music. The former effect is more important to the superstars, who are already famous. But for up-and-coming artists, the benefits of greater exposure greatly outweigh any losses from their (already small) sales. Since most musicians aren't superstars, the rise of file-sharing may actually help the average artist, by flattening out the distribution of music revenues: Justin Timberlake won't be as rich, but up-and-coming bands will find it easier to reach new fans.

Filed Under: riaa, wall street
Companies: riaa

Report Suggests RIAA's Lawsuit-Happy Strategy Still Not Working

from the creativity-needed dept

Marginal Revolution links to a new paper by economist Stan Liebowitz on the economic effects of file sharing on the recording industry. It's a response to an earlier paper that argued peer-to-peer file sharing has had little impact on CD sales. Leibowitz digs into the arguments and finds a number of problems. For example, one of the arguments in the original paper depends on the assumption that college kids use peer-to-peer networks less during the summer than during the school year. Unfortunately, Liebowitz presents data suggesting that's not true: in two of the three years they studied, file-sharing activity was actually slightly higher in the summer than the rest of the year. Liebowitz also faults the authors for failing to release their full datasets; he says he was unable to replicate several of their results using publicly available data. In the end, Liebowitz makes a pretty convincing case that file-sharing technologies are hurting the recording industry: industry revenues in the United States fell by a third from 1999 to 2005. Of course, Liebowitz's data also suggests that the RIAA's current strategy of suing everyone in sight—which they launched in 2003—isn't working so well either: revenues continued to fall between 2003 and 2005. They've tried suing technologists and suing customers, and neither has saved them. Maybe it's time they tried some more creative approaches that don't involve hiring lots of lawyers.

It's also worth noting that neither study looks at trends in the overall music industry, which includes not just CD sales but concerts, T-shirt sales, sponsorship contracts, musical instruments, music lessons, and so forth. These are all important part of the music industry, and some of them have been doing quite well lately. As people use peer-to-peer networks to discover more music they love, they're likely to be inspired to spend more money on these other music-related products and services. As long as plenty of good music is being created and listened to, then the copyright system is working the way it's supposed to, even if the people who ship little plastic discs around the country aren't making as much money as they used to.

Filed Under: riaa, strategy
Companies: riaa

Another Day, Another Smackdown By A Judge Against The RIAA

from the yet-again... dept

In the early days of the RIAA lawsuits, it seemed like judges just took the RIAA's word on things, but that's long since changed as lawyers defending those accused have become more sophisticated -- often realizing that the RIAA research tactics were questionable, the evidence they had was quite flimsy and the system was guaranteed to accuse all sorts of innocent people without much support. As this has happened, judges have become increasingly skeptical of these RIAA lawsuits and those who haven't done anything wrong actually (finally) have a decent chance of pointing out that the RIAA's evidence is wrong. And, in fact, judges are increasingly pushing the RIAA to pay the legal fees of the people they falsely accuse. In the latest such decision, a judge has smacked down the RIAA and ordered them to pay the legal fees in the case of Tanya Andersen. You may recall that the RIAA had accused Andersen of copyright infringement a few years ago -- and then continued to pressure and intimidate her long after it became quite obvious that Andersen clearly was not guilty of what the RIAA was accusing her of doing. The RIAA eventually dropped the case, but Andersen wanted her legal fees paid (separately, she's also suing the RIAA, claiming their investigation techniques are illegal).

The ruling from the judge on paying the legal fees is well worth reading, as it suggests yet another judge is sick and tired of the RIAA assuming that it can just throw up some flimsy evidence and then bully people into paying:

Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case. Plaintiffs exerted a significant amount of control over the course of discovery, repeatedly and successfully seeking the court's assistance through an unusually extended and contentious period of discovery disputes. Nonetheless, after ample opportunity to develop their claims, they dismissed them at the point they were required to produce evidence for the court's consideration of the merits..... this case provides too little assurance that a prosecuting party won't deem an infringement claim unsupportable until after the prevailing defendant has been forced to mount a considerable defense, and undergo all that entails, including the incurring of substantial attorney fees.

Filed Under: copyright, lawsuit, legal fees, riaa, tanya andersen
Companies: riaa

Judge Tosses Out RIAA Suit For Being Based On Nothing More Than Speculation

from the here-in-the-court-system,-we-rely-on-these-things-called-facts dept

Recently, we've seen the courts getting less and less willing to accept the RIAA's flimsy evidence as being enough to convict someone of breaking the law with file sharing applications. The latest such case is along those lines, as a judge dismissed a case noting that it was just a "boilerplate listing," lacking enough substance to make a case. Specifically, the judge found that: "Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation. The complaint is simply a boilerplate listing of the elements of copyright infringement without any facts pertaining specifically to the instant Defendant." It's about time that courts realized that the RIAA shouldn't be able to run around accusing all sorts of people without any real evidence.

Filed Under: copyright, lawsuit, riaa
Companies: riaa

40,000 Explanations For Why The Recording Industry Is Wrong About Business Models

from the start-counting dept

Among Apple's new iPod announcements was the inclusion of a 160Gb iPod Classic. As Steve Jobs noted, that means you could carry around 40,000 songs in your pocket. Forty thousand songs. Leave it to Bob Lefsetz to use this fact to point out how wrong the recording industry has been about music business models. He points out that this highlights how people want music -- in fact, they want lots of music -- and they want it conveniently and reasonably priced. That means at much cheaper prices (are you going to carry around $40,000 worth of music purchases in your pocket?) and without DRM.

He also highlights how the idiotic focus on getting more per song just as everything else about music and technology gets cheaper is hurting the record labels much more than it helps them. He compares the situation to how expensive it was to use mobile phones a dozen years ago. People were scared to use mobile phones because the charges were ridiculously high. You only used it in special circumstances. Today, however, the rates are much, much lower and that's massively grown the market for mobile services. Do you think the mobile operators would prefer to go back to $1/minute charges? Yet, why does the recording industry insist on $1/song charges when the infrastructure can support an entirely different model. Instead, make the music cheap and easily accessible. Take advantage of the infrastructure that allows people to carry around 40,000 songs in their pocket. Sell iPods that are pre-loaded with all kinds of music and watch them fly off the shelves. The record labels (and their supporters) will claim that it doesn't make sense to sell music for less when people are clearly willing to pay $1/song, but that's misunderstanding the market potential. People were willing to pay $1/minute for mobile phone calls too. And they were willing to pay $150/month for broadband access. But as all of those things got much, much cheaper it opened the markets up much wider, provided all sorts of new applications and services that made them more and more valuable -- and helped make the companies much richer by providing better services at cheaper prices. Why can't the recording industry understand that?

Filed Under: business models, ipods, lefsetz, riaa, storage, trends

RIAA Finally Pays Legal Fees On Mis-Filed Suit... But Manages To Screw That Up As Well

from the incompetent-or-just-arrogant? dept

Remember last month when the RIAA was simply ignoring a court order to pay up the legal fees for one of the people that they incorrectly sued for file sharing? Well, they've finally paid up... but even then they ignored both the interest they owed for being late and the instructions for how payment was to be delivered. At some point you have to wonder if they're just messing with people on purpose or if they're really this incompetent.

Filed Under: lawsuits, legal fees, riaa
Companies: riaa

How The Record Labels Are Only Ten Years Behind In Their Thinking About Business Models

from the eventually-they'll-get-there dept

The NY Times Magazine is running an interesting profile of Rick Rubin, the well-known producer who had tremendous success over the past twenty years producing all sorts of successful musical acts -- from the Beastie Boys to Slayer to Johnny Cash -- and who took over as the co-head of Columbia Records back in May. While the story itself is interesting and focused on some of Rubin's peculiarities and his key focus on finding and producing good music -- there are a few other interesting tidbits that come out. The first is how Rubin was completely pissed off at Columbia prior to joining the company because the Sony rootkit debacle hit just as a Neil Diamond album Rubin produced had come out to great fanfare. It was apparently number 4 on the charts -- the highest ever for a Diamond opening. Except, Columbia is a subsidiary of Sony BMG and so the Neil Diamond album was included among those that had the rootkit -- and the furor over that got it pulled from the shelves, and that basically killed its commercial prospects. So, at least we know that Rubin won't be a fan of such things.

However, the article suggests that Rubin and others in the industry are much more interested in setting up some sort of universal subscription system that would allow any subscribers access to any music on any platform. What's most amusing about this is that this is exactly the proposal the EFF suggested many, many years ago, which recording industry executives insisted would never work. What's even funnier is they might be right now, after managing to screw up all sorts of goodwill from customers. Back when the EFF suggested it, it probably still could have worked. However, Rubin is exactly right on where the industry is headed if it doesn't figure out these new business models quickly: "The future technology companies will either wait for the record companies to smarten up, or they'll let them sink until they can buy them for 10 cents on the dollar and own the whole thing." That's why I've always figured that things would work out in the end. If the RIAA members keep shooting themselves in their collective feet, then the problem will eventually take care of itself. Of course, the labels could avoid a lot of the problems if they learned how to actually embrace certain aspects of file sharing. It's not clear that Rubin (or anyone else in the industry) has gone that far yet. They're just still working through the ancient EFF plan they derided when it first came out. In fact, one of Rubin's other questionable ideas is setting up a fake word-of-mouth marketing organization, where Columbia has hired a bunch of young adults to promote their music online on blogs and in forums and such. Hasn't anyone explained to them that word-of-mouth is about people who legitimately enjoy the music -- not those who are paid to promote it? File sharing was legitimate word-of-mouth marketing. Hiring young adults to spam forums is not.

Filed Under: business model, columbia, music, riaa, rootkits
Companies: columbia records, riaa, sony