RIAA Boss Says That The DMCA 'Isn't Working' Any More

from the um..-wow. dept

RIAA President Cary Sherman is really doing a stunning job every time he opens his mouth this week. First, as noted earlier, he may have hurt the RIAA's chances in a Supreme Court case by directly stating the exact opposite of the RIAA's position in that case. Then, he got on stage at a "tech policy" shindig in Aspen Colorado, and said (apparently with a straight face) that "the DMCA isn't working for content people at all." Wow.

Now, this deserves some background. The key parts of the DMCA were almost entirely drafted due to pressures from the RIAA, who wanted this law passed badly. The RIAA has been one of the biggest supporters of the DMCA all along. The one tiny bit they don't like was the part put in at the request of service providers to get them to stop fighting the DMCA: a basic safe harbor that makes it clear that liability should only be applied to individuals or organizations who actually infringe on copyrights, not service providers whose tools are used by third parties. This isn't some revolutionary idea. It's basic common sense application of liability on the party that actually breaks the law. Even that was severely tilted in the RIAA's favor by requiring a notice-and-takedown provision, that almost certainly violates the First Amendment.

But much of the DMCA was an RIAA wishlist of the absurd -- such as the anti-circumvention clause. In fact, for years, tech companies warned about problems with the DMCA. There were a few attempts by Rep. Rick Boucher to reform the DMCA to get rid of the serious problems with it that totally favored the RIAA in often ridiculous ways, but the entertainment industry vigorously fought against these changes.

However, nothing ever came of that, and Boucher hasn't pushed to reform the DMCA in quite a few years at this point. Last I heard, the feeling was that both the technology folks and the entertainment industry folks had decided that reopening the DMCA was a can of worms that was far too dangerous. Tech companies feared losing the safe harbor protections, while the entertainment industry feared losing pretty much anything, such as some of the anti-circumvention clauses.

However, with the entertainment industry having such a "good friend" in Joe Biden, it apparently feels confident enough to try to reopen the DMCA to get rid of the one part it never liked. This is really quite stunning. The DMCA was a bill that was designed for the RIAA. It had one tiny safe harbor, and for Sherman to now attack that is a sickening attempt to twist the DMCA even further in favor of one industry, against everyone's best interests.

Even worse, his rationale for this is just laughable:

"You cannot monitor all the infringements on the Internet. It's simply not possible. We don't have the ability to search all the places infringing content appears, such as cyberlockers like [file-hosting firm] RapidShare."

Read that again. So because the RIAA is unable to monitor, others should be forced to do it for them, or face giant fines. Sherman admits that it's impossible to monitor, but in the same breath demands laws that will punish other companies for failing to do the impossible, while taking all of the responsibility off of the companies he represents. To make such a statement takes such incredible guts that it's amazing the room didn't burst out in laughter.

Of course, what this is really about is that Sherman and the RIAA are posturing for a three strikes law in the US. For two years now, they've tried (and failed) to get ISPs to agree to three strikes in the US. So, Sherman is kicking off a campaign to try to pressure ISPs to agree... or to get politicians to introduce a bill.

Filed Under: cary sherman, copyright, dmca
Companies: riaa

Did The RIAA Just Destroy Its Own Argument Concerning Innocent Infringement?

from the whooops dept

We just saw that amicus briefs are being filed over whether or not the Supreme Court should hear the case concerning whether or not an "innocent infringement" defense is a legitimate defense to an RIAA file sharing lawsuit. If you don't recall, a district court found that a teenager's claim of "innocent infringement" -- which knocks the potential statutory minimum down from $750 to $200 -- was a legitimate defense. An appeals court overturned the ruling, and said that the girl, Whitney Harper, should have known that downloading music was infringing because any CD has a copyright notice (even though she never saw the CDs of the music she downloaded).

I have no idea if the Supreme Court will take the case, but the JoelFightsBack website is pointing out that RIAA boss Cary Sherman, in a recent interview, appears to have undermined the industry's own claims in a recent interview with Vice magazine:

The time had come to shift over to a strategy that would be more effective. The lawsuits were obviously controversial in the media, but the reality was that most people had no idea that what they were doing was illegal at the time of those lawsuits. We did all sorts of surveys. We tried PR firms. We did everything to look at how to begin to change the culture of using illegal P2P. We realized that 1) none of the messages resonated, and 2) most people had no idea that what they were doing was illegal, let alone thought it was wrong. That completely flipped overnight when we started the lawsuits. It made an enormous impression and we were constantly generating dinner conversations about what you may or may not do with your computer. We think it would be very good if there were more such conversations about all the other things that can be done inappropriately with a computer. So we think it had a tremendous impact by very clearly searing in the minds of the public that maybe getting all of this stuff for free isn't legal after all.

That seems to undermine the claims that of course people knew it was illegal, doesn't it? Not surprisingly, the Sherman interview is chock full of other bizarre statements. Even just this one little quote is pretty funny with him trying to somehow redefine the lawsuits as a successful PR strategy. Of course, if they were actually successful in educating people, then wouldn't there be fewer people accessing unauthorized music today than when they started? Of course, the exact opposite is true. The rest of the article is filled with similarly laughable attempts by Sherman to pretend that the RIAA's strategy over the past decade has been successful, rather than a complete disaster that has helped the major record labels speed up their own demise.

Filed Under: cary sherman, copyright, innocent infringement, supreme court, whitney harper
Companies: riaa

With The Recording Industry In Free Fall, Why Are RIAA Bosses Getting Raises?

from the rewarding-failure dept

It's difficult to think of a more disastrous strategy pioneered for the recording industry than the one cooked up by RIAA bosses Mitch Bainwol and Cary Sherman. The two were the "masterminds" behind the plan to sue fans directly, which has been an uncontested disaster that did absolutely nothing to help the bottom line of the record labels. If anything, the evidence suggests that the lawsuit strategy has only galvanized folks to look for alternatives beyond spending money on RIAA labels. The RIAA finally dropped the lawsuit strategy, which was deemed a money pit by a recording industry exec and almost resulted in EMI leaving the RIAA. After all of that, the RIAA itself had massive layoffs.

Given all of that, you might think that Bainwol and Sherman should be looking for new jobs. Instead, apparently, they've been given hefty raises. P2Pnet notes that Bainwol in 2008 made over $2 million dollars -- an increase from the $1.485 million he made in 2007. Sherman made $1.332 million, noticeably more than the $985k he made a year earlier. While I don't have any issue with the absolute amounts, I do question why these guys are getting raises while presiding over what will clearly be looked back on as one of the biggest blunders by an industry in decades. On top of that, I can see how some might question how the RIAA can claim to represent "starving artists" when its execs are doing so well. Apparently, the answer to not being a starving artist is to go become boss of the RIAA.

Filed Under: cary sherman, mitch bainwol, salaries
Companies: riaa

Dear RIAA: It's Not 'Working Together As A Team' When It's Under Threat Of Regulation

from the do-these-guys-ever-make-sense dept

I've been trying not to respond to every RIAA blog post these days, but it's hard to let certain things go when they so rarely make any sense. For example, RIAA President Cary Sherman recently talked up the new regulations that force colleges and universities to "take proactive steps" to stop file sharing. He goes on to make it sound like universities decided to do this in the spirit of "teamwork" with the RIAA, rather than because they risked serious financial consequences under the law for not complying. He also leaves out the fact that tons of colleges and universities are pissed off and complaining about how much time, effort and money they're wasting on this just because Sherman and his friends still don't seem able to embrace modern music business models. Colleges and universities have enough to worry about without the government forcing them to act as the RIAA's police force. If it were truly about teamwork, Cary, you wouldn't have had to spend so much time getting Congress to pass a law to force them to do this.

Filed Under: cary sherman, filtering, lobbying, riaa, universities
Companies: riaa

ISP Copyright Filter Debate Continues: Verizon Stays Away, While Rep. Bono Is All For Filtering

from the not-so-much-a-debate-as-posturing dept

With the entertainment industry actively pushing for ISPs to filter unauthorized content, it seems that the discussion is getting wider and wider attention. Rep. Mary Bono (now Mary Bono Mack), who is rather infamous for the last copyright extension efforts, and who believes that fair use is theft, has now stated that it should be the ISP's responsibility to filter out unauthorized content. Thankfully, she hasn't reached the point of making it mandatory, but it's not surprising to hear her say that she supports the concept of ISP filtering. Not to be left out, Cary Sherman of the RIAA chimed in to note that he doesn't think we need new legislation, but that ISPs should voluntarily start filtering content.

While AT&T agrees (for reasons that still don't make any sense), it's nice to see Verizon feels otherwise. Verizon's Tom Tauke says that the company is not interested in becoming copyright police, noting the inevitable privacy questions this would raise: "We don't want to get into the business of inspecting the bits and figuring out what is and is not appropriate traffic." As much as we tend to disagree with Verizon's position on many policy issues, the company has at least a decent (though, certainly not wonderful) record in protecting privacy. Remember, it was Verizon who initially stood up to the RIAA on trying to get information on customers without filing lawsuits.

Filed Under: cary sherman, copyright filters, isps, mary bono, riaa
Companies: at&t, riaa, verizon

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

Lawsuits Don't Create New Markets

from the kicking-and-screaming dept

The RIAA has apparently been getting a lot of negative publicity for its six-figure judgment against a single mother for file-sharing. RIAA president Cary Sherman has a taken to the Web to defend his organization's actions. Personally, I don't have a great deal of sympathy for Jammie Thomas given the strong evidence against her, but I did think Sherman made a couple of misleading arguments. First, Sherman claims that the lawsuits have "created a legal marketplace" for music. But the primary way you create a "legal marketplace" for your products is to offer better products. The market is growing because services like Apple's iTunes make it convenient for consumers to get the music they want in a convenient and flexible format. But the major labels can hardly take credit for that, since they had to be dragged kicking and screaming into signing on to the iTunes store. Sherman says he'd rather be "helping artists make great music that we can distribute in lots of exciting new ways that music fans want." But for the most part, their approach has been the opposite: doing their best to sue new music technologies out of existence and sharply limiting the ways consumers can listen to the music they want. Secondly, Sherman repeatedly equates copyright infringement with theft, going so far as to say that the jury found Thomas "liable for copyright theft." But of course there's no such thing as "copyright theft." As the Supreme Court and others have pointed out, copyright infringement and theft are two different crimes, and it's misleading to treat them as if they were identical.

Filed Under: business models, cary sherman, lawsuits, markets, recording industry
Companies: riaa