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.

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Moby Explains RIAA Mindset: Please Make The Future Die

from the moby-and-mossberg? dept

It's a bit of an odd pairing, but musician Moby was recently interviewed by Walt Mossberg, and among other things they discussed issues like file sharing and the RIAA's strategy. Moby, of course, has complained about the RIAA's strategy in the past, calling for it to be disbanded following the Jammie Thomas verdict. He's also found success experimenting with giving away his music, so his positions probably don't come as a surprise. He says he has no problem with people downloading his music (though he likes it when they buy it as well), as he's "honored" that people want to listen to his music, and if they download an unauthorized copy: "more power to you." On the RIAA, he can't understand why they're doing something that so clearly alienates fans, but then does a pretty good job explaining why, noting that the current business model of major labels:

"underpins the failure of major labels--they think, it used to be this way, so it ought to be this way." Their ethos is, "Please go away. Make the future die."

Not much new, but the quote is definitely a succinct way of explaining the position held by some at the major record labels over the past decade. Rather than deal with reality, they just want it to go away.

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Correcting A Few 'Facts' From The RIAA... For Which We Feel We Deserve Payment

from the we're-waiting-for-the-check... dept

After the Jammie Thomas ruling, the RIAA kept its typical gloating to a minimum, recognizing the PR disaster that the nearly $2 million judgment presented for its already widely disliked members. A few mistakes slipped through, but for the most part, the RIAA kept pretty quiet hoping that Thomas would settle rather than appeal (that didn't work). However, with the Joel Tenenbaum ruling, it appears the RIAA is going in a slightly different direction, posting a snarky blog post about Joel supposedly under the guise of "facts." Now, I've been clear that I think Tenenbaum never should have gone to trial and should have settled a while back. As more facts became clear in his case, it made little sense for him to fight against the RIAA. He broke the law and admitted it. You're not going to get very far fighting in court on that front. I think he's a bad test case (and had terrible legal representation).

So I can see where some of the opening comments from the RIAA's Cara Duckworth come from (basically trying to tear down Joel). But, for the life of me, I can't figure out what good the post does for the RIAA. It's a rather typical tone-deaf pronouncement from a group that's been about as tone deaf as it could possibly be to consumer desire for over a decade. To the people who already support Joel, it comes across as yet another attack. To people who already support the RIAA, it adds nothing new. To people in the middle... it just looks mean to attack this guy. Yes, Joel broke the law. But he was fined $675,000 for 30 songs (and, yes, the RIAA tries to point out that he downloaded/shared much more, but if that's their point, they should have sued him for that as well). Plenty of people see that punishment as totally out of line with any sense of reality. There's a tremendous amount of evidence that file sharing has not been a problem for the music industry -- it was a failure of the labels, often at the urging of the RIAA itself, to embrace new technologies and new business models.

And rather than recognize that, it now wants to smack around a guy they may have just sentenced to a life in poverty? That'll win over supporters...

I can't believe it needs to be said again, but you DON'T win customers by suing the biggest fans of your product. You DON'T win customers by doing everything you can to hold back innovation unless its under your terms. You DON'T win customers by exacting a massive pound of flesh and overvaluing your contribution over everyone else's.

As for the specifics of the RIAA's "facts" they get a bunch wrong. For example:

FACT: As much as he wants to make this into one, this is not a crusade against the RIAA or the laws that protect creators. This is not about us. It's about Joel Tenenbaum and his egregious illegal behavior which robs artists and music creators of the right to be paid for their work, and robs record companies of the ability to invest in new artists and bring new music to the public.

That's not a "fact." That's very much an opinion, and the second part of it is flat-out wrong. It's not a fact, it's a lie. Tenenbaum's actions robbed no one. No one has a "right to be paid for their work." You have a right to try to convince people to buy, and the RIAA and its labels FAILED in convincing Tenenbaum to do that. But that's the market at work. Today for lunch I may pick the deli rather than the pizza shop next door. Based on the RIAA's logic here, I have just "robbed" the pizza place of its "right to be paid" for its work. There is no right to be paid. Only a right to try to convince people to buy. As for "robbing the ability to invest," again, please explain how people choosing not to buy your product is the fault of the people not buying? If you simply put in place business models that work (which we point to all the time, showing artists who embrace file sharing and make more money because of it), there would be plenty of money to "invest in new artists."

And, of course, the woe-is-us routine is bogus as well. As we've seen in two recent studies (the latter from the music industry itself), the music ecosystem is thriving. More money is going into music and music-related goods than ever before. It's just that less and less of it is filtering through the RIAA's labels who (oops!) have a nasty history of not actually paying their artists money they owe them. The idea that not giving money to the RIAA somehow means less music will be brought to the public is laughable. It's not a fact, it's pure propaganda. Thanks to these same new technologies that the RIAA has tried to kill off, it's easier than ever for bands to create, promote and distribute music. And because of that, there's more new music out there than ever before.

Hey, let's agree on the fact that Joel broke the law and it was silly for him to go through with this lawsuit. Done and done. But don't spew a line of pure bull that this was ever about investing in artists.

FACT: Mr. Tenenbaum has put forth the defense that "his generation" has grown up learning that file-sharing isn't wrong. This is a bogus argument. I'm a member of Tenenbaum's generation. I was taught I shouldn't take what doesn't belong to me without permission.

Funny, then, can you explain all the lawsuits that artists have filed against major record labels asking where the money owed to them has gone? Why is it the RIAA's biggest name members seem to have no problem "taking what doesn't belong to them without permission"? And can you explain why the RIAA has been fighting for a new tax on radio stations? Isn't that just "taking what doesn't belong to you" as well? The RIAA has no problem taking what doesn't belong to them (though, usually it works hard behind the scenes to get politicians to pass laws to give it the appearance of legality).

FACT: The best anti-piracy strategy is a thriving legal marketplace that gives music fans a wide variety of innovative options where they can get their favorite music in affordable, hassle-free ways.

Which is why your members, under your legal direction and strategic input have sued a significant number of those services and tried to make the MP3 player itself illegal? Uh-huh.

Because there are some people like Mr. Tenenbaum who believe music should be free, we've had to enforce our rights to protect all those hard-working individuals who create the music.

There's a bit of a problematic logic train here... Because someone doesn't want to buy from us, we have to sue, to get money for the people we work so hard to not give money to. Hmm. Can Cara Duckworth and the RIAA share with us some details on how the "settlement fees" from all the folks threatened by the RIAA has been distributed to artists? The RIAA has no requirement to enforce its rights. As we've seen time and time again, artists who purposely chose not to enforce those rights, but to instead provide something of real value to consumers have found that they can make more money than they ever got from an RIAA member. There's no such thing as that you "had to enforce" your rights. Instead, you could have innovated. You chose not to.

FACT: We do not want to be in court. We'd rather be investing in new artists and bringing great music to the public's collective ears.

If we're dealing in "facts" here, we should get one straight. If a plaintiff doesn't want to be in court, then he or she doesn't sue. It's that simple. Making this out like the RIAA was somehow forced to go to court is ridiculous. Edgar Bronfman Jr. announced nearly a decade ago that he was sending an army of lawyers to sue file sharers. You made the conscious decision to declare war on your best customers. You weren't forced into it at all.

But artists, musicians, music companies, and all the working-class folks who rely on the legitimate sale of music to make a living deserve to be paid for their work.

There we are with the "deserve to be paid." Hell, I "deserve to be paid" for my work too. But, the world doesn't work that way. Deserving to be paid for your work and a nickel gets you five damn cents. You earn money by offering something in the marketplace that people want to buy. You didn't do that. You failed at business 101 and you started suing people because of it.

FACT: We remain willing to settle this case, but Tenenbaum is so far insisting on filing more motions and appeals in order to continue to pursue his misguided mission to get music for free.

You could drop the case. You've already declared (somewhat misleadingly) that you were giving up this strategy of suing music fans. Why continue to tarnish the RIAA's reputation by bankrupting a kid for listening to music?

Nobody can argue that people don't deserve to be paid for their hard work. But through all his illegal actions, Tenenbaum has argued exactly that.

Indeed. No one is likely to argue that people don't deserve to be paid for their hard work, but out here in the real world, deserving to be paid is meaningless. Cara, since I spent so much time correcting your errors, half-truths and misdirections, I feel that I deserve to be paid for this hard work I have done for you. Based on your logic, I should see a check in the mail from you shortly, yes? Clearly, if you don't pay up, we can only assume that you are arguing that I don't deserve to be paid for my hard work. So which is it?

No matter how clearly Tenenbaum broke the law, it doesn't change the only real fact: the RIAA has failed to embrace new business models when they appear, has attacked and held back new technologies and innovations at nearly every opportunity until dragged kicking-and-screaming into the new era (which it still refuses to fully embrace), and has created a PR nightmare for itself that isn't helped by lying to the public in the name of a bunch of bogus "FACTS."

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Moby Says 'Disband The RIAA' For Winning $1.92 Million From Jammie Thomas

from the representing-the-artists?!? dept

As a whole bunch of you have sent in, the musician Moby has put up a blog post where he suggests the RIAA should be disbanded for its $1.92 million win over Jammie Thomas. While (unfortunately) he gets a few of the facts wrong (they didn't sue her for $2 million, but it's what the jury chose -- though it is accurate that the RIAA has clearly suggested it has no problem with the statutory rates for infringement in the past), his overall point is sound. It's ridiculous that the RIAA thinks this is the proper strategy:

argh. what utter nonsense. this is how the record companies want to protect themselves? suing suburban moms for listening to music? charging $80,000 per song?

punishing people for listening to music is exactly the wrong way to protect the music business. maybe the record companies have adopted the 'it's better to be feared than respected' approach to dealing with music fans. i don't know, but 'it's better to be feared than respected' doesn't seem like such a sustainable business model when it comes to consumer choice. how about a new model of 'it's better to be loved for helping artists make good records and giving consumers great records at reasonable prices'?

i'm so sorry that any music fan anywhere is ever made to feel bad for making the effort to listen to music.

the riaa needs to be disbanded.

This isn't new territory for Moby. Way back in 2003, he got angry after finding out that some of his songs were being used by the RIAA to sue people, and stated: "I'm tempted to go onto Kazaa and download some of my own music, just to see if the RIAA would sue me for having mp3's of my own songs on my hard-drive."

Still, we're seeing more and more artists react poorly to the RIAA, who still claims to represent them. Why is it that our politicians still buy that clearly incorrect story?

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How The Recording Industry Changes Its Own Story

from the anything-for-the-money dept

We've already discussed how silly the Performance Rights Act is -- and how it's basically an attempt by the record labels to get their own bailout courtesy of radio stations. There are all sorts of problems with it, and Jess Walker does an amazing job explaining just how ridiculous the Performance Rights Act is. In doing so, he highlights one point that is quite a common trick in the RIAA's bag of tricks, but which doesn't get enough attention: how it changes the story to flip things around to its advantage over and over and over again. Case in point: the RIAA is arguing that it needs to get royalties to performers for radio air play to "even out" the situation, since radio is the "only" platform where performers don't get royalties. For example, they point to internet radio and satellite radio, where artist do get paid.

So, the RIAA claims, this is unfair... after all, why should they get paid for all of those, but not radio?

Except, the RIAA conveniently wants us all to forget history. That's because it was the RIAA who argued that satellite radio, internet radio and other forms of broadcasting were different from terrestrial radio, and therefore required different royalty structures. In other words, the only reason why this "unfair" dichotomy exists in the first place is because the RIAA lobbied for it by claiming that satellite radio and internet radio were different.

Now it wants everyone to forget that and pretend that it's some weird "anomaly" that terrestrial radio doesn't include performance royalties? Don't buy it. This is the sort of thing the industry has pulled off for years -- pushing one country to extend copyright laws, and then moving to other countries and working up a lobbyist campaign about how that country isn't keeping up with other, more reasonable countries, concerning copyright laws. Have you noticed what's happening in Canada these days? That's a direct example of this sort of thing.

Walker also takes on other points to show how silly and dangerous the Performance Rights Act would be. It benefits no one but the record labels. It harms radio stations. It harms independent musicians. It harms big musicians as well (since most of the money doesn't go to them, but to the record labels). Who does it help? The RIAA, of course:

And for what? Imagine, as a thought experiment, that this bill were passed and, simultaneously, payola were made fully legal. Does anyone doubt that more money would flow toward the radio stations than away? Radio remains the primary means by which the music industry promotes its product. By pushing for this fee, the labels are essentially asking their advertisers to pay them for the service of selling their stuff.

Ah, you say, but what about the independent artists who don't get big promotional pushes from the major music labels? Surely they'd benefit from a new revenue stream? Actually, they'll be even worse off. The economic mission of most commercial radio stations is to deliver audiences to the sponsors whose spots are aired between tunes. So programmers have a built-in preference for music whose mass appeal has already been proven. If you increase the cost of playing a record, that just intensifies the incentive: The more you pay to play a song, the more conservative you'll be about which songs you play. The marginal cost of playing each track is the same, but the commercial payoff is greater for established artists.

Generally speaking, the more it costs to run a station, the more risk-averse it will be. That's one reason low-power and Web outlets are more experimental: They don't have as much money on the line. But those stations--the ones that go out of their way to play diverse and unfamiliar material--are precisely the ones that have the hardest time paying the song tax. The proposed law acknowledges the problem by introducing a sliding scale, with the least profitable outfits paying $500 a year. But while that may be chump change for a big broadcaster, it's a pretty big piece of the operating budget for a low-power, volunteer-run community or student station.

Nor is it the only cost the law will impose. "The record labels are completely out of touch as to how college radio stations operate," Warren Kozireski, president of College Broadcasters Inc., recently complained on his organization's website. "The extensive record keeping requirements that will be required by the Copyright Royalty Board alone will add hundreds, if not thousands of dollars to the true cost of a performance fee." It's relatively easy to do that book-keeping if you have a narrow playlist and rarely deviate from it, as is the case with most large commercial radio stations. But if you have a library of thousands of albums and 45s, many of which were never reissued on CD, and if you allow your DJs to choose which ones they play--or even to bring in still more music from their personal collections of rare soul or jazz or bluegrass or electronica obscurities--then tracking the data suddenly becomes a full-time job.

Worse yet: Though the rhetoric around the proposal focuses on the benefits to musicians, much of the money won't make it to the artists in the first place. In part that reflects the fact that the fees go not just to the performers but to the copyright owner, which frequently means the record company. But it also reflects the corruption in the industry, which legislation like this has probably abetted.

As we've seen time and time again, if the RIAA supports it, it's not good for consumers. It's not good for musicians. It's not good for anyone but a small selection of record labels. Hopefully, Congress recognizes this for the pure money grab it is and shuts it down.

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Class Action Lawsuit Against The RIAA For 'Stolen' Money?

from the this-won't-end-well dept

A bunch of folks have been submitting the story about how Jammie Thomas' new lawyer, Kiwi Camara (a Charlie Nesson protege) and Nesson himself are apparently preparing to file a class action lawsuit against the RIAA in an attempt to get back the $100 million plus that they claim the industry "stole" in its settlements. This may be interesting from an academic standpoint (or from a PR/circus standpoint), but I have difficulty believing it will get very far in terms of actually succeeding. I do find the settlements distasteful, and bordering on extortion ("pay up or we sue" is really questionable), but earlier attempts at similar lawsuits haven't gone very far at all. Still, considering that the RIAA has always insisted that its entire legal campaign was part of a grossly misguided and ultimately self-damaging "PR campaign" perhaps it's okay that someone is effectively doing the same thing on the other side.

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Administration Lobbyist Ban Not Doing What It's Supposed To Do

from the too-bad dept

While conceptually, I think many people appreciate President Obama's stance against bringing lobbyists into his administration, in all practicality, the rule has been a combination of meaningless or troubling. Tom Barger points to a NY Times article where many people are upset that some extremely qualified folks who worked for non-profit human rights organizations are being denied positions in the administration. There's been some pushing to get the administration to make an exception for human rights and non-profit lobbyists, noting that the intent of the rule was to bar corporate lobbyists from gaining too much influence, but the administration has struck down those suggestions, saying it leads to a slippery slope.

But, of course, in reality, we know that slippery slope already exists. That's because the ban on "lobbyists" is really only being used for folks who were officially registered as lobbyists. That leaves out tons of people who worked for these corporate entities or even for the lobbyist groups themselves, but weren't officially registered lobbyists themselves. We've already seen how the Justice Department is, for example, being filled with lawyers who regularly worked with the RIAA, MPAA and BSA -- three of the biggest copyright lobbying organizations, and those individuals have wasted no time in expressing their desire to continue pushing those industry's viewpoints in their new positions.

So the idea that lobbyists are being kept out is pretty silly. As the NY Times article notes, all this really does is encourage lobbyists not to register themselves as lobbyists, but to focus on lobbying unofficially, so that they can still get administration positions at a later date. That creates less openness and transparency, and a larger risk of regulatory capture, rather than a diminished one. We all like the idea of trying to keep corporate influence out of the law making (and law enforcement) side of government, but a blanket ban on all lobbyists, while letting non-lobbyist lobbyists in the back door isn't exactly reassuring.

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Consumer Interest Groups Ask Obama To Stop Appointing RIAA Lawyers

from the good-luck... dept

With the Obama administration appointing a whole bunch of copyright maximalists to various positions (despite an early indication that perhaps he recognized issues with copyright law), a bunch of public interest and consumer interest groups have gotten together to write a letter to Obama, asking him to recognize that he seems to be filling every open slot with a very heavily biased viewpoint which could do significant harm towards innovation. Some of the letter may be inspired by the rumored candidates for the IP Czar position -- all of whom also fall into the copyright maximalist camp. Though, the fact that it's taken Obama so long to appoint this position (upsetting the Senators who wrote the law requiring the position in the first place) suggests (at the very least) he isn't considering this to be a priority.

Still, the EFF also took the opportunity to point out that it seems likely that Obama violated copyright himself, in giving a gift of an iPod filled with music to the Queen of England. It's almost impossible to know whether or not copyright was violated, but that's exactly the problem. Of course, this is likely to be of little concern to the President -- which is itself another problem. Too many people, who have little familiarity with copyright law, simply assume that "copyright is good" and that "more copyright is better," leading to the false belief that those who have a history twisting copyright to their own advantage are the best positioned to speak on copyright policy. That's regulatory capture at its finest -- something the Obama administration had claimed it was trying to avoid. Obviously, there are more important things for Obama to be focused on, but relying so heavily on copyright maximalists who have benefited from distorting the purpose of copyright is quite troubling.

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DOJ Sides With RIAA In Tenebaum Case

from the shocker dept

Considering that the Justice Department has hired a bunch of the RIAA's favorite lawyers, it was widely expected that the Justice Department would weigh in on the Joel Tenenbaum case -- despite the fact that folks in the Obama administration aren't supposed to be involved in situations that relate to work they did recently (oops). So, of course, the Justice Deparment has filed an amicus brief supporting the constitutionality of the statutory fines for copyright infringement. As Ray Beckerman notes, the Justice Department seems to have conveniently ignored numerous other precedents -- and doesn't bother to explain why earlier cases that upheld damages of 116 and 44 times damages means it's okay to have damages pushing hundreds of thousands of times over potential damages (and an argument can be made that there were actually no damages at all solely due to Tenenbaum). So while this is hardly surprising, it is a bit disappointing that the DOJ filed this brief, given the obvious conflicts of interest concerning its recent hires.

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Massive Layoffs Hit The RIAA: Maybe Focus On Building Business Rather Than Suing Customers Next Time?

from the just-a-thought dept

Details have been spilling out over the last few days that the RIAA has been making pretty massive cuts to staff. We already knew that EMI was cutting back on its support of the RIAA/IFPI, and it seems that with the rest of the RIAA's major label supporters also having economic troubles, the writing is on the wall that the RIAA is about to go through a major transformation. I'm sure some will somehow "blame piracy" for this turn of events, but it's hard to see how that's even remotely the issue. The real issue is that the RIAA has basically managed to run one of the dumbest, most self-defeating strategies over the last decade. Rather than helping major record labels adjust to the changing market, it continually, repeatedly and publicly destroyed its own reputation and the reputation of the labels -- each time shrinking their potential market by blaming the very people they should have been working to turn into customers. They may claim that they "had" to take this strategy because it's what the labels wanted (and, indeed, that was Hilary Rosen's excuse), but that's ridiculous. It was evident to pretty much anyone who took the time to understand the issues back in the mid- to late-90s, that the internet represented an opportunity to those who embraced it. The RIAA's decision to fight progress and its own customers at every turn has been nothing short of a complete disaster. That the group is now being gutted is the inevitable result of a poor strategy that could have easily been avoided.

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Recording Industry Looking At Bribing ISPs To Side With It Against File Sharing

from the incentives dept

At the MidemNet event this past weekend, there were multiple discussions concerning the role of ISPs in solving the recording industry's problems. Some believed that ISPs were obligated to be involved, some felt that ISPs should be totally separate, and then there were some viewpoints in between. However, one theme that popped up a few times was the idea that having ISPs acting as enforcers could "open up new business opportunities and revenue streams for the ISPs." That seemed a bit odd, because the ISPs would be spending time trying to crack down on file sharers and would be losing customers. However, now it's becoming clear what may be meant: bribes.

Well, more technically, they're calling it "revenue sharing." Thus, there are reports of ISPs being offered a deal, whereby they have to crack down on file sharing, kicking off file sharers -- but then get a split of any money obtained from music fans who pay up when challenged by an antipiracy company. I'm sure there are some ISPs that would be open to such a thing, but it won't stop a lot of angry users from looking for a more customer friendly ISP. Also, when your whole business model is based on squeezing people who don't have very much money in the first place, it's difficult to see this surviving very long.

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RIAA Just Can't Seem To Stop The Momentum On Filing Those Lawsuits

from the legal-inertia dept

On December 19th, it was announced that the RIAA was giving up on its legal strategy of suing individual file sharers, and instead was going to go with some mysterious agreements with ISPs (that no ISPs will admit to) to cut off those accused (not found guilty of) file sharing. In talking about it, the RIAA insisted that it had actually stopped filing lawsuits back in August. Of course, that was quickly proven to be not true leading the RIAA to clarify, saying that it hadn't started planning for any new lawsuits since August, but somehow couldn't stop lawsuits already in motion (this, of course, makes no sense).

Of course, now it's looking even worse, as on December 26th, well after it announced an end to the lawsuits, and insisted no more were going to be filed, a new lawsuit was served on an individual for file sharing. Apparently, the RIAA continues to have trouble with some rather basic facts. Saying you're not suing individuals anymore would be a lot more believable if, you know, you stopped suing individuals. Just saying...

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RIAA Apparently Unable To Stop Lawsuits In Motion

from the legal-inertia? dept

Following last week's announcement that the RIAA was going to back off using mass lawsuits, some were pretty confused by the RIAA's subsequent claim that it had actually stopped filing such lawsuits back in August. In fact, it turned out to be an outright lie, as plenty of lawsuits had been filed pretty much right up until the announcement. However, the RIAA is now trying to explain its "no new lawsuits" message by claiming that it actually meant no new lawsuits in the pipeline. The ones filed since August were apparently already "in motion" and apparently in RIAA-land once you kick off the process of filing a bogus lawsuit based on flimsy evidence, the inertia is simply too powerful to pull it back and stop it from running its course. Or did I misunderstand the RIAA's statement on the matter?

The folks at the RIAA and at various major record labels have complained to us that we don't give them a fair shake, but every time we think about giving them the benefit of the doubt, they pull out some totally bogus claim like "no new lawsuits" and, when called it on, follow it up with a whopper about these legal wheels in motion, as if they had no way of stopping the lawsuits from actually moving forward. Do they really think that everyone is stupid?

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RIAA's New Policy Isn't About Deterrence, It's About Sidestepping Due Process

from the it's-for-your-own-good dept

On Friday, the RIAA announced its plan to end their campaign of suing thousands of alleged downloaders; instead, it has negotiated with ISPs to disconnect subscribers who the RIAA identify as repeat infringers. From what little is known about the system, ISPs would pass along warning emails to the customers the RIAA claims are downloading copyrighted material. Following 2-3 warnings, subscribers would have their connection terminated.

Speaking to CNET on Friday, RIAA President Cary Sherman said that the tactical change was an attempt to deter would-be infringers. "The idea is to create deterrents. This deters people from engaging in illegal behavior." This is either misleading or mistaken, if the claim is that warning emails and the threat of having to switch ISPs is more of a deterrent than an incredibly expensive lawsuit. Unless the RIAA can convince ISPs to flood their subscribers with warning emails early and often, more people are likely to hear about the end of lawsuits and stop fearing potentially costly litigation or settlement.

The more likely reason for the change in approach is that the RIAA recognizes that the lawsuit approach has been an abject failure. Not only does it alienate fans, it is costly and rests on shoddy legal theories. As courts have begun to realize that IP addresses aren't solid evidence and that "making available" doesn't constitute infringement, the RIAA has been forced to realize that their goals don't align with thoughtful justice. So, what's a dying industry to do? Obviously, cut out those pesky judges and their principles of due process. Although Cary Sherman insists the wrongly accused will "have a place to go and make their complaint," the lack of specificity is as worrying as the RIAA's previous mistakes concerning their lawsuits.

Kevin Donovan is an expert at the Insight Community. To get insight and analysis from Kevin Donovan and other experts on challenges your company faces, click here.

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Record Labels Disobey Court Order On How Student Info Can Be Used

from the this-is-a-surprise? dept

Ray Beckermann points us to the news that in a lawsuit involving various record labels against some USC students, the record labels asked the court to help identify the students -- which the court granted on the condition that the only use of the student info would be to seek injunctive relief (i.e., get them to stop file sharing) rather than monetary relief. However, as LAist is reporting, it only took a few months for the record labels to, instead, demand money via a typical pre-settlement letter, that demands thousands of dollars to get the RIAA and labels to not sue you. This certainly appears to be contempt of court, going in direct contrast to the judge's order.

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RIAA Just Keeps On Suing Students: Conversation At The End Of A Gun Barrel

from the some-conversation dept

The folks at Warner Music Group insist that their efforts to convince universities to enforce a not-so-voluntary "usage fee" on all students is part of an attempt to start a conversation on new business models. However, they conveniently leave important stakeholders (those who would be forced to shoulder the bill) out of such a conversation, and have still refused to actually participate here in the conversation. So far, their only "participation" was having a PR person send a statement scolding me for daring to raise questions about such a plan. Apparently, the sort of conversation Warner Music wants is one where everyone lines up and agrees with Warner Music.

And, of course, it should surprise no one that the RIAA, where Warner Music has plenty of influence, is still out there filing more lawsuits, even as Warner insists it's turned over a new leaf and is looking for a more reasonable solution. In other words, this isn't a "conversation" at all. It's a protection racket. Warner Music and the other major record labels are just going to keep suing until people agree to hand them a big chunk of money, apparently.

So, Warner Music, if you really want people to believe that you've turned over a new leaf, and that you're interested in a real conversation about new music industry business models, how about you call off the legal dogs and stop filing lawsuits against both individuals and companies and actually participate in a conversation? We're still more than willing to help facilitate such a conversation.

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RIAA Sued For Racketeering Yet Again

from the we'll-see-how-this-works dept

A few people have filed lawsuits against the RIAA for racketeering in the past, though these charges have always been dismissed. In one such case, where the filed charges were dismissed over the summer, new claims were filed again charging the RIAA with racketeering for extortion, mail fraud and wire fraud in its ongoing efforts involving weakly supported threats against alleged file sharers demanding money to avoid being sued. The file-sharing defendants are trying to turn this into a class action lawsuit on behalf of everyone falsely accused by the RIAA. Given the (lack of) success of all previous racketeering lawsuits on this topic, I wouldn't get too optimistic of this one going anywhere just yet.

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Judge Slams RIAA Tactics

from the about-time dept

Early on, in the RIAA's legal campaign against file sharers, it appeared that judges were mostly siding with the RIAA, and taking the RIAA's claims at face value. However, due to widespread backlash, and an improved understanding of how the RIAA's tactics are legally questionable, it appears that opposing lawyers have become much better at pushing back on some of the dubious claims by the RIAA, including the basis for the whole campaign. It's nice to see judges are beginning to recognize this as well. While we've seen it in judges rejecting RIAA arguments in court, in one case, it appears that Judge Nancy Gertner pointed out how ridiculous the RIAA's position was and suggested they stop their legal blitz:

"...counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...."

The RIAA used to count on the "sympathy" vote in court, and played the role of a "victim" quite well (they're pirates! they're stealing!). However, it appears that many judges just aren't buying it any more.

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Judge Reject's Woman's Request For A Jury Trial; Orders Her To Pay RIAA

from the vexatious-indeed dept

Ignoring numerous other court rulings concerning whether or not "making available" is copyright infringement, a judge has rejected a woman's request for a jury trial in her file sharing lawsuit, and ordered her to pay the $7,400 fine already set. This was the case we had just discussed last week, where the woman claimed that the RIAA only had evidence that she had shared six songs, even though she admitted to making 37 songs available. There was already an agreement in place that the fine would be $200/song, so the real question was whether it should be $7,400 or $1,200. The woman argued that, in light of the Jammie Thomas mistrial and other rulings, the RIAA needed to show actual infringement, rather than just that the files were made available. Unfortunately, this judge rejected that argument and ordered her to pay the full $7,400.

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RIAA Calls Another Critic Vexatious After She Points Out Flaw In RIAA Logic

from the time-to-get-a-thesaurus dept

It appears that someone in the RIAA's legal team discovered the word "vexatious" lately and now likes to use it. First, the RIAA declared lawyer Ray Beckerman vexatious, and now it's trying to pin the same word on a woman who is demanding a jury trial in her battle against the RIAA. We had written about this case back in August, where the woman used an innocent infringement defense to try to get the fines for file sharing decreased. That is, she admitted that she had shared the files, but rather than accepting the $750 to $150,000/per song fines that might entail, she claimed that she had no idea what she was doing was illegal, and that the law allows for such cases to be reduced to a $200/song fine.

The RIAA initially pushed back on this, but eventually relented and let the judge set a $7,400 total fine, thinking that the case was pretty much wrapped up. Except... there's the problem of the Jammie Thomas mistrial ruling, which added to a long list of rulings that claimed that "making available" files wasn't necessarily infringement. So, the woman in this case, Whitney Harper, is now pointing out that the number of files she's "guilty" of infringing should be reduced based on the Thomas ruling. She notes that while she made 37 songs available for download (hence the $7,400 fine), the RIAA only has evidence that six songs were downloaded. Thus, she believes the fine should be reduced to $1,200, and would like a jury to hear the case. You can understand why the RIAA might be frustrated, but considering how quickly it rushes out to tell other judges in ongoing cases whenever one judge rules in its favor, it seems only reasonable to have a court reconsider this case in light of the Thomas ruling.

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