RIAA the Punching-Bag

by on January 2, 2008 · 17 comments

Over the slow holiday season, the Internet has been alight with outrage over the Recording Industry of America’s argument in a file-sharing case that, per the Washington Post, “it is illegal for someone who has legally purchased a CD to transfer that music into his computer.”

But as copyright expert William Paltry explains, it simply ain’t so:

[T]he RIAA is being unfairly maligned. I have read the brief (and you can too here). On page 15 of the brief, we find the flashpoint: “Once Defendant converted Plaintiffs’ recordings into the compressed .mp3 format AND they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.”

I have capitalized the word “and” because it is here that the RIAA is making the point that placing the mp3 files into the share folder is what makes the copy unauthorized. The RIAA is not saying that the mere format copying of a CD to an mp3 file that resides only on one’s hard drive and is never shared is infringement. This is a huge distinction…

An interesting point from Joel Johnson:

That it seems possible that the RIAA would go after people for ripped CDs says a lot about the way most people—including the Washington Post, apparently—view the organization…

This is true, but is any other course imaginable? CD sales, and record company profits, seem to be in free-fall, and it’s beyond credulity at this point to argue that online file-sharing isn’t, at least to a significant extent, to blame. Why would an industry fade without a struggle?

As the recording industry grasps desperately for revenues, it is perhaps inevitable that it will increasingly clash with record buyers, musicians, and the public. So expect more alarmism, more yellow journalism, and greater vitriol from the “copyfighters” and their allies and expect (probably) for all this to be used as further leverage to push “open culture” policies, however tenuous their connection to the source of conflict, the collateral damage of an industry’s slow collapse–which itself is no new or unique thing.

In other words, expect a lot more of these kind of stories in 2008. John Tierney’s article yesterday on the sociology climate change is a better explanation than most as to why.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    CD sales could simply be falling because there is no market demand. Apparently, this plausible scenario is beyond the comprehension of those apologizing for the RIAA.

    You wrote “CD sales, and record company profits, seem to be in free-fall, and it’s beyond credulity at this point to argue that online file-sharing isn’t, at least to a significant extent, to blame. Why would an industry fade without a struggle?”

    So what about the possibility that the sale of CDs is simply the result of market forces similar to the decline in the sale of automobiles. The New York Times wrote on November 7, 2007 “But auto sales have been weakening. Analysts and auto company executives expect industry sales this year to be about 16 million vehicles, the weakest since 1998. Lately, executives have been forecasting that sales next year could fall below 16 million vehicles.” CDs, like autos, are subject to consumer demand. Sales could be dropping because the music is simply bad.

    Felix Oberholzer and Koleman Strumpf wrote “Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing
    is the primary reason for the recent decline in music sales.”

    In theory, we live in a free market economy. If a business model is failing the free market solution is to reinvent the model, not government support for corporate welfare. Should buggy whip manufactures have had a right to demand that every car sold come with a buggy whip? If the existing RIAA business model ends up failing, too bad.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    CD sales could simply be falling because there is no market demand. Apparently, this plausible scenario is beyond the comprehension of those apologizing for the RIAA.

    You wrote “CD sales, and record company profits, seem to be in free-fall, and it’s beyond credulity at this point to argue that online file-sharing isn’t, at least to a significant extent, to blame. Why would an industry fade without a struggle?”

    So what about the possibility that the sale of CDs is simply the result of market forces similar to the decline in the sale of automobiles. The New York Times wrote on November 7, 2007 “But auto sales have been weakening. Analysts and auto company executives expect industry sales this year to be about 16 million vehicles, the weakest since 1998. Lately, executives have been forecasting that sales next year could fall below 16 million vehicles.” CDs, like autos, are subject to consumer demand. Sales could be dropping because the music is simply bad.

    Felix Oberholzer and Koleman Strumpf wrote “Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing
    is the primary reason for the recent decline in music sales.”

    In theory, we live in a free market economy. If a business model is failing the free market solution is to reinvent the model, not government support for corporate welfare. Should buggy whip manufactures have had a right to demand that every car sold come with a buggy whip? If the existing RIAA business model ends up failing, too bad.

  • http://linuxworld.com/community/ Don Marti

    Remember the Diamond Rio case? The RIAA sued to stop sales of this device on the grounds that it could be used to store files ripped from CD.

  • http://linuxworld.com/community/ Don Marti

    Remember the Diamond Rio case? The RIAA sued to stop sales of this device on the grounds that it could be used to store files ripped from CD.

  • Carl

    The RIAA’s battle is SO over, as we sit here in 2008. Musicians will sell their music directly to fans over the Internet, and lots and lots of copies will be spread around like snowflakes.

  • Carl

    The RIAA’s battle is SO over, as we sit here in 2008. Musicians will sell their music directly to fans over the Internet, and lots and lots of copies will be spread around like snowflakes.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Obviously, the In Rainbows distribution method will spread, and as Jack Black reminded us in School of Rock, Rock n Roll is about sticking it to the man, and there ain’t no bigger man than the big four studios that are the muscle behind the RIAA. They are going down and that’s it.

    However, the recent purchase of EMI was so dumb, and those who wasted their money are going to be so angry when they realize they’ve been had. So it won’t be pretty.

    But of course we have the folks here TLF to reinvent reality, for example when Andrew repeats the meme from the Paltry Copyright blog that the RIAA is being unfairly maligned, it just isn’t so and he should know it.

    Yes, the man is alleged to have ripped .mp3′s and placing them in shared folder. That is factually correct.

    However, what did the RIAA itself say about this? As quoted in the Washington Post article:

    “RIAA’s hard-line position seems clear. Its Web site says: “If you make unauthorized copies of copyrighted music recordings, you’re stealing. You’re breaking the law and you could be held legally liable for thousands of dollars in damages.”

    Also, one question Andrew: Why do you ignore a very significant criticism of the RIAA that was mentioned in Paltry post, that is the use of Media Sentry and their questionable legal tactics in pursuit of the RIAA’s lawsuits?

    The Media Sentry folks hired by the RIAA are little more than fascist thugs, and they should should be prosecuted by the Oregon AG.

    People have suffered enough at the hands of the RIAA and their heartless legal machine. They have crossed long ago any line of moral behavior and they (the big four studios) fully deserve to go bankrupt, and that will make me very happy to see them get what they deserve, finally.

    How can anyone who cares about freedom stomach a law like the DMCA?

    How can anyone who cares about due process stand idly by while Media Sentry and the RIAA run roughshod over the Bill of Rights?

  • http://enigmafoundry.wordpress.com eee_eff

    Obviously, the In Rainbows distribution method will spread, and as Jack Black reminded us in School of Rock, Rock n Roll is about sticking it to the man, and there ain’t no bigger man than the big four studios that are the muscle behind the RIAA. They are going down and that’s it.

    However, the recent purchase of EMI was so dumb, and those who wasted their money are going to be so angry when they realize they’ve been had. So it won’t be pretty.

    But of course we have the folks here TLF to reinvent reality, for example when Andrew repeats the meme from the Paltry Copyright blog that the RIAA is being unfairly maligned, it just isn’t so and he should know it.

    Yes, the man is alleged to have ripped .mp3′s and placing them in shared folder. That is factually correct.

    However, what did the RIAA itself say about this? As quoted in the Washington Post article:

    “RIAA’s hard-line position seems clear. Its Web site says: “If you make unauthorized copies of copyrighted music recordings, you’re stealing. You’re breaking the law and you could be held legally liable for thousands of dollars in damages.”

    Also, one question Andrew: Why do you ignore a very significant criticism of the RIAA that was mentioned in Paltry post, that is the use of Media Sentry and their questionable legal tactics in pursuit of the RIAA’s lawsuits?

    The Media Sentry folks hired by the RIAA are little more than fascist thugs, and they should should be prosecuted by the Oregon AG.

    People have suffered enough at the hands of the RIAA and their heartless legal machine. They have crossed long ago any line of moral behavior and they (the big four studios) fully deserve to go bankrupt, and that will make me very happy to see them get what they deserve, finally.

    How can anyone who cares about freedom stomach a law like the DMCA?

    How can anyone who cares about due process stand idly by while Media Sentry and the RIAA run roughshod over the Bill of Rights?

  • http://purveyorofiniquities.com Andrew Grossman

    Enigma,

    I’m not a defender of RIAA, not exactly, just not much of a partisan either way. I’m probably becoming more of a critic, because it is inevitable that the recording industry will lash out as forces beyond its control spell its twilight. RIAA’s legal tactics, from what I’ve read of its briefs, don’t seem to me to be “questionable,” though its strategy is probably, in the end, pointless and rent destroying.

    In a sense, then, I agree with Carl above, that “The RIAA’s battle is SO over, as we sit here in 2008.” In Rainbows is probably not a viable method for unestablished musical artists, but thee are other options and surely more will spring up in the years ahead–that’s what the market’s good at, after all.

  • http://purveyorofiniquities.com Andrew Grossman

    Enigma,

    I’m not a defender of RIAA, not exactly, just not much of a partisan either way. I’m probably becoming more of a critic, because it is inevitable that the recording industry will lash out as forces beyond its control spell its twilight. RIAA’s legal tactics, from what I’ve read of its briefs, don’t seem to me to be “questionable,” though its strategy is probably, in the end, pointless and rent destroying.

    In a sense, then, I agree with Carl above, that “The RIAA’s battle is SO over, as we sit here in 2008.” In Rainbows is probably not a viable method for unestablished musical artists, but thee are other options and surely more will spring up in the years ahead–that’s what the market’s good at, after all.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    If you say: RIAA’s legal tactics, from what I’ve read of its briefs, don’t seem to me to be “questionable,” though its strategy is probably, in the end, pointless and rent destroying.

    then I would ask if you are familiar with what Media Sentry is/has been doing?

  • http://enigmafoundry.wordpress.com eee_eff

    If you say: RIAA’s legal tactics, from what I’ve read of its briefs, don’t seem to me to be “questionable,” though its strategy is probably, in the end, pointless and rent destroying.

    then I would ask if you are familiar with what Media Sentry is/has been doing?

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    From Wikipedia, re: MediaDefender, who has been involved in DOS attacks against sites it doen’t like, among other things:

    In February 2007, MediaDefender launched a video sharing site called Miivi.com. On July 4, 2007, file-sharing news site TorrentFreak alleged that Miivi.com was created to trap uploaders of copyrighted content.[4][5] The site’s origins were discovered by a blogger who looked up Miivi.com domain registration information.[6]
    After the allegation was re-posted throughout the blogosphere, Miivi.com was shut down on July 4, 2007.[7] In an interview with Ars Technica, chief executive Randy Saaf stated that “MediaDefender was working on an internal project that involved video and didn’t realize that people would be trying to go to it and so we didn’t password-protect the site”.[8] MediaDefender blamed file-sharing groups such as The Pirate Bay for starting the story.[8] Following MediaDefender’s subsequent email leak, TorrentFreak alleged that MediaDefender’s statement was revealed to be a deliberate falsehood.[9] Saaf denied that MiiVi was “a devious product” and that the company aimed to entrap users, stating only that it was part of MediaDefender’s “trade secrets.”[10]
    The MPAA denied any involvement with MediaDefender.[8] On September 14, 2007, internal emails from MediaDefender were leaked on to BitTorrent file sharing networks, which contradicted MediaDefender’s claims of MiiVi being an “internal test site”. These e-mails also revealed additional detailed information about the website. The emails also revealed that the site was closed when the connection between it and MediaDefender became public knowledge, and was scheduled to be re-launched as http://www.viide.com. Viide.com has not yet been opened up to the public.[4] The e-mails also revealed direction by MediaDefender founder Randy Saaf to have an engineer attempt to eliminate the information about MiiVi from MediaDefender’s Wikipedia entry.[11]
    “I will attempt to get all referenes [sic] to miivi removed from wiki. I should easily be able to get It contested. We’ll see if I can get rid of it.”[12]

    Leaked e-mails
    On September 14, 2007, 6621 of the company’s internal e-mails were leaked, containing information contradicting previous statements and details of strategies intended to deceive pirates. The emails link MediaDefender to projects that management previously denied involvement in. The Associated Press and other media outlets suggest that the leak may confirm speculation that MiiVi.com was an anti-piracy “honeypot” site.[14][15] One e-mail suggests using the MiiVi client program to turn users’ PCs into drones for MediaDefender’s eMule spoofing activities. The leaked e-mails discuss responses to unexpected and negative press, and expose upcoming projects, problems in and around the office, Domino’s pizza orders, and other personal information about employees. Beyond strategic information, the leak also exposed login information for FTP and MySQL servers, making available a large library of MP3 files likely including artists represented by MediaDefender’s clients. The emails also revealed that MediaDefender probably was negotiating with the New York Attorney General’s office to allow them access to information about users accessing pornographic material.[12] As of September 15, 2007, there has been no official response from the company.[9] However, evidence exists that MediaDefender has been employing both legal and illegal actions to remove copies of the leaked emails from their respective hosting sites. In addition to the usual cease-and-desist letters from their legal department, IP addresses that are owned by MediaDefender were found to have been used in denial-of-service attacks against sites hosting the leaked emails.[16]
    Developer Dylan Douglas of MediaDefender in one of the emails dated 5th July, 2007 also asks Developer Ben Ebert to vandalise text on the wikipedia article on MediaDefender (this article), to remove the line “In February 2007, MediaDefender launched a video sharing site called Miivi.com in order to trap unsuspecting uploaders of copyrighted content.” occuring on the page. Randy Saaf responds in an email on the same day saying,”I will attempt to get all referenes to miivi removed from wiki. I should easily be able to get It contested. We’ll see if I can get rid of it.”

  • http://enigmafoundry.wordpress.com eee_eff

    From Wikipedia, re: MediaDefender, who has been involved in DOS attacks against sites it doen’t like, among other things:

    In February 2007, MediaDefender launched a video sharing site called Miivi.com. On July 4, 2007, file-sharing news site TorrentFreak alleged that Miivi.com was created to trap uploaders of copyrighted content.[4][5] The site’s origins were discovered by a blogger who looked up Miivi.com domain registration information.[6]
    After the allegation was re-posted throughout the blogosphere, Miivi.com was shut down on July 4, 2007.[7] In an interview with Ars Technica, chief executive Randy Saaf stated that “MediaDefender was working on an internal project that involved video and didn’t realize that people would be trying to go to it and so we didn’t password-protect the site”.[8] MediaDefender blamed file-sharing groups such as The Pirate Bay for starting the story.[8] Following MediaDefender’s subsequent email leak, TorrentFreak alleged that MediaDefender’s statement was revealed to be a deliberate falsehood.[9] Saaf denied that MiiVi was “a devious product” and that the company aimed to entrap users, stating only that it was part of MediaDefender’s “trade secrets.”[10]
    The MPAA denied any involvement with MediaDefender.[8] On September 14, 2007, internal emails from MediaDefender were leaked on to BitTorrent file sharing networks, which contradicted MediaDefender’s claims of MiiVi being an “internal test site”. These e-mails also revealed additional detailed information about the website. The emails also revealed that the site was closed when the connection between it and MediaDefender became public knowledge, and was scheduled to be re-launched as http://www.viide.com. Viide.com has not yet been opened up to the public.[4] The e-mails also revealed direction by MediaDefender founder Randy Saaf to have an engineer attempt to eliminate the information about MiiVi from MediaDefender’s Wikipedia entry.[11]
    “I will attempt to get all referenes [sic] to miivi removed from wiki. I should easily be able to get It contested. We’ll see if I can get rid of it.”[12]

    Leaked e-mails
    On September 14, 2007, 6621 of the company’s internal e-mails were leaked, containing information contradicting previous statements and details of strategies intended to deceive pirates. The emails link MediaDefender to projects that management previously denied involvement in. The Associated Press and other media outlets suggest that the leak may confirm speculation that MiiVi.com was an anti-piracy “honeypot” site.[14][15] One e-mail suggests using the MiiVi client program to turn users’ PCs into drones for MediaDefender’s eMule spoofing activities. The leaked e-mails discuss responses to unexpected and negative press, and expose upcoming projects, problems in and around the office, Domino’s pizza orders, and other personal information about employees. Beyond strategic information, the leak also exposed login information for FTP and MySQL servers, making available a large library of MP3 files likely including artists represented by MediaDefender’s clients. The emails also revealed that MediaDefender probably was negotiating with the New York Attorney General’s office to allow them access to information about users accessing pornographic material.[12] As of September 15, 2007, there has been no official response from the company.[9] However, evidence exists that MediaDefender has been employing both legal and illegal actions to remove copies of the leaked emails from their respective hosting sites. In addition to the usual cease-and-desist letters from their legal department, IP addresses that are owned by MediaDefender were found to have been used in denial-of-service attacks against sites hosting the leaked emails.[16]
    Developer Dylan Douglas of MediaDefender in one of the emails dated 5th July, 2007 also asks Developer Ben Ebert to vandalise text on the wikipedia article on MediaDefender (this article), to remove the line “In February 2007, MediaDefender launched a video sharing site called Miivi.com in order to trap unsuspecting uploaders of copyrighted content.” occuring on the page. Randy Saaf responds in an email on the same day saying,”I will attempt to get all referenes to miivi removed from wiki. I should easily be able to get It contested. We’ll see if I can get rid of it.”

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    The New York Times, through the Associated Press, reports: “U.S. Album Sales Fell 9.5% in 2007″ (January 4, 2008)

    In summary the Times writes: “Album sales in the United States plunged 9.5 percent last year from 2006, as the recording industry had another weak year despite a 45 percent surge in the sale of digital tracks, according to figures released Thursday.”

    The Times of course makes the gratuitous “piracy” statement but also acknowledges the existence of other market forces: “The recording industry has experienced declines in CD album sales for years, in part because of the rise of online file-sharing, but also because consumers have spent more of their leisure dollars on other entertainment, like DVDs and video games.” (emphasis added)

    The Times also recognizes the birth of new market opportunities: “The recording industry continued to benefit from mobile music, with mobile phone owners buying 220 million ring tones, the firm said.” The Times also stated that the Eagles released there latest album independently, which I assume means without the blessings of the RIAA or the payment of any extortion monies to the RIAA.

    It’s time for the RIAA to acknowledge that its existing business model is obsolete, to accept market changes, and to re-invent itself.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    The New York Times, through the Associated Press, reports: “U.S. Album Sales Fell 9.5% in 2007″ (January 4, 2008)

    In summary the Times writes: “Album sales in the United States plunged 9.5 percent last year from 2006, as the recording industry had another weak year despite a 45 percent surge in the sale of digital tracks, according to figures released Thursday.”

    The Times of course makes the gratuitous “piracy” statement but also acknowledges the existence of other market forces: “The recording industry has experienced declines in CD album sales for years, in part because of the rise of online file-sharing, but also because consumers have spent more of their leisure dollars on other entertainment, like DVDs and video games.” (emphasis added)

    The Times also recognizes the birth of new market opportunities: “The recording industry continued to benefit from mobile music, with mobile phone owners buying 220 million ring tones, the firm said.” The Times also stated that the Eagles released there latest album independently, which I assume means without the blessings of the RIAA or the payment of any extortion monies to the RIAA.

    It’s time for the RIAA to acknowledge that its existing business model is obsolete, to accept market changes, and to re-invent itself.

  • http://boards.ioacentrm/index.php?showuser=8324 Fernbleable

    I keep listening to the news speak about getting free online grant applications so I have been looking around for the best site to get one.

Previous post:

Next post: