Solveig Singleton

Post pulls CD to iPod story About RIAA

Hanging out with an old friend over the weekend way outside the Beltway, he was asking me about copyright, and told me that the RIAA was coming out with a theory that copying music from CD’s that one owns to an iPod was now a target. I found that hard to imagine–it didn’t sound like an issue that RIAA would find it worthwhile to pursue, and indeed they’ve argued against liability in such a case on a few occasions (once on the theory that a license to do so was implied). And, indeed, the Washington Post has now pulled the story.

That such a rumor would spread points to deeper problems with press coverage of the music industry’s problems as a whole. Advocates have created an image of aggressive copyright holders proceeding without regard to their own long run interests in their own audience. By and large, journalists have bought into this. That the music industry and consumers have a *real* problem to solve–the difficulty of creating new business models without enforceable boundaries to keep out free riders en masse (not every single one)–has been neglected. That it is simply not plausible that an entire economic sector has mysteriously been populated by mean, short-sighted people is likewise ignored. Alas, some of us on the free-market side have bought into this, folks who one would expect to think in terms of the big picture and the long run, not personalities. Ah well.

January 10, 2008 | Comments |

Viewing 7 Comments

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    How would you say the music industry's recent mass abandonment of DRM reads on the theory that they're short sighted? They're now starting down a path that a lot of their critics suggest they follow a decade ago. Either they've been short-sighted for the last decade, or they're being short-sighted now.

    Personally, I think people are creatures habit, and it's excruciatingly painful for an industry that's been doing things the same way for 75 years to suddenly shift gears and start doing them another way. That makes it all but inevitable that they're going to be short-sighted, because they're going to coast on momentum until the evidence of impending doom is so overwhelming that they can't ignore it. They didn't abandon DRM when a lot of smart people told them it would hurt their business circa 2001. They abandoned DRM in 2007 when CD sales nose-dived by double digits and online revenues weren't making up the difference.

    Large, bureaucratic institutions do not turn on a dime. They certainly don't gracefully accept shrinking revenues. That's true of a government agency and it's equally true of a large recording company. Given the labels' structure and the wrenching changes they're currently facing, it would be surprising if they weren't short-sighted.
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    Perhaps you need to read this article in Wired: http://blog.wired.com/27bstroke6/2008/01/riaa-s...

    The Washington Post fell for their damage control attempts once they realised what the backlash would be.

    Two points: The attorney in the Jamie Thomas filesharing case specifically asked if she had permission to copy the CDs to her computer. Surely that's a nonsense question if she has the right to do so.

    Second, the RIAA is claiming the Sony testimony about copying CDs to a computer is theft was "a mistake". I think that's a lie. I think it was in Sony and the RIAAs interest to make that statement (by a lawyer and under oath). And it's now in their interest to retract it.

    The idea that Sony's head of litigation made such a massive error while testifying in a court of law strains credibility.

    and indeed they’ve argued against liability in such a case on a few occasions (once on the theory that a license to do so was implied).

    Again, where it was convenient for them to take that position, they do. But read the Wired article. When asked point blank, they talk about being "allowed" to copy your CDs, but they don't admit that you have a right to do so (i.e., that copyright law does not give them the right to prevent you).

    It would be like Ford coming out and saying "Actually, you don't have the right to drive your car across state lines, but don't worry, we won't sue you for it." Would you accept that?


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    Under DRM, the only intermediary who matters is whoever controls the DRM system. The record companies' decision to move away from DRM looks like a reaction to the "most powerful man in music" phenomenon, and the threat of iTunes becoming for music what eBay is for stuff. That's just how network effects and auction markets work.

    That wasn't obvious at the beginning of the music DRM mistake. Record companies could have planned on playing multiple DRM vendors against each other, since at the time the record companies decided to try the DRM strategy, vendors other than Apple looked viable. Now that the two choices are Apple or DRM-free, and people have seen what happens to the number two player in an an auction market, DRM looks much worse than it used to.

    So even if DRM is an obvious mistake now, it wasn't necessarily an obvious mistake at the beginning.

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    Yes, some lobbying by the corporate interests that control the media managed to get one of the few fair stories pulled, and you treat it as if the Post made some king of error here?

    Puhl-ease!

    However, what does the RIAA itself say about making copies for personal use:

    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."

    Further, in the complaint that is the subject of so much scrutiny, the RIAA is in fact alleging exactly that behavior--ripping cd's and copying them into a shared folder. They are not alleging that those songs were in fact ever distributed--they don't have evidence of that.

    Also, one question Solveig: Why do you ignore a very significant criticism of the RIAA that was mentioned in Patry 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?

    It is profoundly disheartening that, after so many have paid such a high price for our freedoms and rights you are willing to sell them for such a low price.

    Guess what? Because the big four studios don't care about the First Amendment and the Bill of Rights I am not inclined to shed a tear when they go belly-up.
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    Also a factual correction: the story was NOT pulled.

    Washington Post did: issue a correction, noting that the allgations in this case was about copying into a shared folder, not ripping an mp3 from a CD.

    Solveig, can you find one instance where the RIAA unequivocally states that consumers have a right to format shift, that is rip .mp3's from CD's?
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    Solveig:

    Here we have the RIAA itself, saying that home copying is illegal, as covered on the Patry Copyright blog:



    "Here is as much of Mr. Berman’s response as makes sense to reproduce here to avoid any conceivable claim of quoting out of context; I will, moreover, create a pdf of the whole answer Tuesday and send it to those who want it. Bear in mind that he is referring to copying of analog tape by individuals at home for what everyone else would call noncommercial purposes. Here are RIAA’s answers to Senator DeConcini, reproduced in the hearing transcript:

    Under Section 106(1) of the copyright law, the copyright holder is granted an exclusive right to reproduce the copyrighted work. There is no statutory exemption that permits “personal” copying merely because it is not commercial. Nothing in the copyright statute distinguished between “personal” copying and commercial copying.
    …
    The only conceivable basis for exempting home taping from the provisions of Section 106 would be the fair use doctrine, addressed in Section 107 of the copyright law.
    [quotes statute]
    None of these factors, however, justifies the conclusion that home taping of copyrighted sound recordings should be considered a fair use.
    First, home taping is a commercial use within the meaning of the “fair use” provision despite the fact that the home taper may not charge for his or her copies. [quotes Harper & Row v. Nation].
    Second, copyrighted works are sold for the purpose of entertainment. The home taper seeks to use the copyrighted work for the same purpose. …
    Third, home tapers record entire musical collections. Their appropriation of the copyrighted work is total.
    Fourth, the economic effect of copying on the potential market for the copyrighted work grows is so sever that the defense of fair use cannot be invoked. The studies, the market statistics, and economic analysis of the home taping problem vividly document home taping’s adverse effect on sales of records and prerecorded tapes. The displaced sales, lost because of home taping, cost the industry $1.5 billion annually.
    …
    Thus, there is no personal use exemption, nor any fair use immunity for home taping. Contrary to the premise of the question, there is no distinction between commercial and home personal taping.
    (pages 37-39, emphasis in original).
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    One of the central concepts of Libertarian thought is that of property rights. Solveig writes "... without enforceable boundaries to keep out free riders en masse (not every single one)—has been neglected.". My concern, from the property rights, perspective is not one of neglect but simply a failure of Solveig to acknowledge the necessity to adapt to a changing environment.

    Solveig, notes the necessity of clearly defined "boundaries" as an essential component of a property right. My problem is what happens if NO clear property boundary exists?

    To go a step further, if property can be created it logically follows that property can also evaporate. For example, a landowner adjacent to water, can accrete ownership in response to sand deposition. However, if the beach is eroding, the landowner looses ownership to the eroded land. In the extreme, all the land can be eroded away. (I do recognize that, for the land currently owned, the rights of ownership don't change.)

    Over the past several years we have seen the emergence of technologies and products that blur clearly defined property lines. When a property line becomes blurred it means that it is fading into oblivion. Given the demise of a property right, the Solveig's assertion for "enforceable boundaries to keep out free riders" is both reactionary and misplaced. The correct free market solution is a modified business model that incorporates the evolving changes of the market place.

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