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

Washington Post Flubs Story On RIAA -- RIAA Still Not Going After Personal Copies (Yet)

from the who-needs-to-read-the-details? dept

Back at the beginning of December, we helped debunk a story making the rounds claiming that the RIAA was going after a guy named Jeffrey Howell for ripping his own CDs to his computer. That story was misleading, at best. While we know that the RIAA is constantly pushing to extend both the meaning and scope of copyright law, in this case the details were pretty clear that they were not going after Howell for just ripping his CDs, but for putting those ripped files into a shared Kazaa folder. Now you can (and we do!) disagree that simply putting files into a shared folder are infringement, but that's different than just claiming that ripping the CDs is illegal or that he was being targeted just for ripping the CDs. Unfortunately (and for reasons unclear to me), the Washington Post has revived the story, again repeating that Howell is being targeted for ripping his own CDs. That's simply not true, and it's nice to see a true copyright expert like William Patry question the Washington Post on this as well. It looks as though the Post's source for the story is the same as the earlier story: lawyer Ray Beckerman. Beckerman has done (and continues to do) a fantastic job fighting the RIAA against its bogus lawsuits. However, he still has failed to explain how the RIAA's filing actually says what he claims it says. While he suggested I don't understand because I am not familiar enough with the minutia of copyright law, I don't see how he can say the same for Patry, who literally wrote a nearly 6,000 page book on copyright. Of course, now that the Washington Post has republished this already debunked story, many other publications are spreading it. I emailed the Washington Post writer asking for clarification on Monday, but have not yet heard back.

Furthermore, there is one other point that is worth highlighting. It was noted in the comments to our original post. The filing points out that when Howell ripped his CDs and put them into a shared folder, those files were no longer "authorized." It's important to note that there's a difference between unauthorized and illegal. Beckerman seems to be saying that by saying "unauthorized" the RIAA means illegal -- but that need not be the case. It's perfectly legal to rip your CDs, even if it's not authorized. It's well established that ripping a CD for personal backup purposes is perfectly legal, even if it's not authorized. What the RIAA appears to be saying is that by putting those backup files into a shared folder, the rips no longer were made for personal use, thus pushing them over the line to illegal. Yes, the RIAA is still pushing its luck in its description, but as was clearly established back at the beginning of December, it is not (yet) claiming that Howell broke the law simply by ripping his CDs -- and it's too bad that the Washington Post has repeated it in a way that caused a bunch of other sites to suddenly claim that it was true.

Filed Under: copyright, riaa

Hollywood Continues Its Worldwide Push To Have ISPs Block Sites Like Pirate Bay

from the why-innovate-when-we-can-legislate! dept

It would appear that the IFPI is following in the footsteps of the US entertainment industry in pushing government around the world to force ISPs to block access to sites and content that the entertainment industry wishes weren't available online. This is the latest in an ongoing effort for the entertainment industry to pretend that the internet needs to conform to the way it wants the world to act, rather than conforming to the way the internet actually works. The push would include requirements such as having ISPs set up massive filters, similar to China's "Great Firewall," to block sites like the Pirate Bay (despite the non-infringing uses of such sites) and also to block any downloads of certain digital audio and video tracks as recorded by a digital fingerprint. The fact that the IFPI is pushing for this is no surprise, given the RIAA/MPAA's similar push within the US, as well as recent efforts in both France and the UK to implement such policies.

There are many, many reasons why such policies aren't just bad, but dangerous to innovation. As we're already seeing elsewhere, the entertainment industry now seems to think that any new innovation that makes it easier to distribute, copy or promote content now needs to get approval from the industry (while also paying a royalty fee). If Hollywood had its way, things like the VCR and the iPod wouldn't even exist -- despite the fact that both devices have helped to provide new life to the entertainment industry. The same will be true of various internet services -- but not if Hollywood succeeds in getting them blocked completely. It's amazing how many times Hollywood will need to relearn this lesson. Every time some new technology comes along, Hollywood freaks out that it might need to adapt -- and yet, time and time again, that new technology has only helped to reinvigorate the industry. Yet, by spreading FUD all over the place, the entertainment industry has become much better at bending politicians' ears to the point that those politicians incorrectly believe that the industry is doomed if it actually needed to adapt and change its business model, despite plenty of historical and economic evidence that those adaptations will come if the market is left alone to innovate.

Filed Under: filtering, hollywood, ifpi, isps, mpaa, piracy, riaa, unauthorized content
Companies: ifpi

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

EMI Might Not Like The RIAA Very Much

from the distancing-yourself dept

Kevin Stapp writes in to point to the rumor making the rounds that EMI is considering scaling back how much it supports the RIAA and IFPI financially. While this is positioned mainly as a cost-savings move, it could have much larger ramifications. EMI, of course, has actually been shifting slowly away from some of the more troubling positions of the RIAA. It was the first major label to sell DRM-free tracks on iTunes. More importantly, it was recently taken private by a private equity firm, whose bosses don't seem beholden to the old way of doing business, and are willing to rethink the business. For example, when Radiohead began its experiment with "name your own pricing," the CEO of that private equity firm used it as a call to action for the company to start thinking creatively about new ways to distribute music -- rather than trying to diminish its importance as the other record labels did.

If EMI lowers its funding of the RIAA and the IFPI it's basically an (all too late) admission, that the strategies of those two organizations are not helping EMI achieve its long term goals. This shouldn't be surprising, as it's been obvious for nearly a decade now that the RIAA's focus was solely on short-term goals at the expense of any long-term vision. Many people have pointed this out over the years, and people would respond that the RIAA was simply doing what the labels wanted it to do (even if those actions, like pissing off a huge number of fans) was incredibly damaging to the labels' own long-term prospects. EMI pulling back funding shows that even it no longer thinks the RIAA's actions are in its best interests.

Filed Under: funding, record labels, riaa
Companies: emi, riaa

RIAA Told To Hand Over Data On Cost Per Download

from the constitutionality-questions dept

Earlier this year, a court agreed to examine whether or not the fines the RIAA is asking for in its lawsuits against people accused of file sharing is constitutional (that whole "cruel and unusual" bit). The RIAA, in response, has fought hard to keep from revealing any information about how much a download really costs, but a judge isn't having any of that and has ordered the RIAA in the UMG v. Lindor case to turn over the data.

Filed Under: constitutionality, cost, downloads, fines, lindor, riaa
Companies: riaa