Now Will the RIAA Stop Trying to Kill Its Industry?

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File-sharing boosts CD sales, according to a new study by two university professors, according to the Washington Post. From the article:

Songs that were heavily downloaded showed no measurable drop in sales, the researchers found after tracking sales of 680 albums over the course of 17 weeks in the second half of 2002. Matching that data with activity on the OpenNap file-sharing network, they concluded that file sharing actually increases CD sales for hot albums that sell more than 600,000 copies. For every 150 downloads of a song from those albums, sales increase by a copy, the researchers found.

"Consumption of music increases dramatically with the introduction of file sharing, but not everybody who likes to listen to music was a music customer before, so it's very important to separate the two," said Felix Oberholzer-Gee, an associate professor at Harvard Business School and one of the authors of the study.

So will the idiots who run the Recording Industry Association of America drop their lawsuits and let the artists get back to making money?

NEXT: Rice To Testify

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  1. “To promote the Progress of Science and useful Arts…”

    Try promoting it without protecting it.

    See Soviet Union.
    East Germany.
    North Korea.
    Cuba.
    etc.

  2. This study offers a “little” empirical data, but not much. The weight of evidence shows file sharing hurts CD sales, not helps them. The reporter highlighted this study because it is sensational.

    The study was is apparently just statistical models that correlated sales of cd’s to file sharing activity.

    The article discusses two other statistical models, in less detail, which showed no effect, or declining sales, attributed to downloading.

    Did they ever demonstrate that a person who downloaded a song actually bought it on CD, or pursuaded someone else to? That would be real empirical data in this case.

    Selectively presentating facts is always asking for trouble…

  3. The issue here is not as simple as, “It’s property, so taking it is theft!” The issue is made much murkier by government intrusion. Consider:

    1. The ability of people to hear music through alternate channels such as radio is severely restricted by the FCC. When internet radio started, the radio stations were willing to pay the same royalties as broadcast. The RIAA was having none of it, because maintaining their monopoly on access to content was more important than the royalties. The government backed them.

    2. The entertainment industry donates more money to political campaigns than any other industry. The result has been an endless series of laws and regulations favoring the industry. Everything from ‘work for hire’ rulings that strip artists of copyright to the extension of the lifespan of copyright protection long past anything that was contemplated when copyright law was first established.

    3. The eroding of ‘fair use’ – always an important part of copyright law, fair use has been under attack by the entertainment industry for a long time. When the entertainment industry sells me a product that cannot be copied, they strip me of my fair use rights to make backups, make a mix CD for my car, put an MP3 of a CD on my computer for easier access, etc.

    4. The outright expropriation of my money through government action. Here in Canada, the RIAA successfully lobbied the government to impose a tax on blank recording materials. Every time I make a backup of my hard drive, I have to pay a fee to the RIAA. Despite the fact that we are now paying a tax under the assumption that we copy materials and should pay for it, the RIAA is now suing Canadians who share files on P2P networks.

    5. The use of shoddy and illegal bookkeeping to withold profits from artists. There have been numerous examples of movies that grossed hundreds of millions of dollars but studio accounting practices ensured that they’d show a loss on the books, thereby removing the requirement to pay royalties. The record companies do the same thing.

    6. Intimidation. The RIAA is constantly pressuring government to allow them to do things like hack the computers of suspected pirates. Their practice of firing shotgun lawsuits on shaky grounds with the intention of forcing a settlement rather than going to court. Demanding (and getting!) the private records of ISPs without a court order, usually on threat of legal action if the ISP refuses.

    And the list goes on. The entertainment industry is crooked, and is heavily abetted by government. I am as strong a proponent of intellectual property rights as you’re likely to find, but in this case I recognize that this is not a fair playing field. The entertainment industry is a giant oligopoly protected by government, and file sharing is the attempt to democratize it.

  4. The issue here is not as simple as, “It’s property, so taking it is theft!” The issue is made much murkier by government intrusion. Consider:

    1. The ability of people to hear music through alternate channels such as radio is severely restricted by the FCC. When internet radio started, the radio stations were willing to pay the same royalties as broadcast. The RIAA was having none of it, because maintaining their monopoly on access to content was more important than the royalties. The government backed them.

    2. The entertainment industry donates more money to political campaigns than any other industry. The result has been an endless series of laws and regulations favoring the industry. Everything from ‘work for hire’ rulings that strip artists of copyright to the extension of the lifespan of copyright protection long past anything that was contemplated when copyright law was first established.

    3. The eroding of ‘fair use’ – always an important part of copyright law, fair use has been under attack by the entertainment industry for a long time. When the entertainment industry sells me a product that cannot be copied, they strip me of my fair use rights to make backups, make a mix CD for my car, put an MP3 of a CD on my computer for easier access, etc.

    4. The outright expropriation of my money through government action. Here in Canada, the RIAA successfully lobbied the government to impose a tax on blank recording materials. Every time I make a backup of my hard drive, I have to pay a fee to the RIAA. Despite the fact that we are now paying a tax under the assumption that we copy materials and should pay for it, the RIAA is now suing Canadians who share files on P2P networks.

    5. The use of shoddy and illegal bookkeeping to withold profits from artists. There have been numerous examples of movies that grossed hundreds of millions of dollars but studio accounting practices ensured that they’d show a loss on the books, thereby removing the requirement to pay royalties. The record companies do the same thing.

    6. Intimidation. The RIAA is constantly pressuring government to allow them to do things like hack the computers of suspected pirates. Their practice of firing shotgun lawsuits on shaky grounds with the intention of forcing a settlement rather than going to court. Demanding (and getting!) the private records of ISPs without a court order, usually on threat of legal action if the ISP refuses.

    And the list goes on. The entertainment industry is crooked, and is heavily abetted by government. I am as strong a proponent of intellectual property rights as you’re likely to find, but in this case I recognize that this is not a fair playing field. The entertainment industry is a giant oligopoly protected by government, and file sharing is the attempt to democratize it.

  5. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  6. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  7. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  8. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  9. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  10. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  11. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  12. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  13. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  14. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  15. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  16. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  17. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  18. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  19. Critic-
    Out of print. If I were one of those musicians I’d be furious; companies like Sony still own the rights to my songs but WILL NOT publsh them.

    I’m thinking of some particular one-hit wonders of the 80s; various songs done by various Prince proteges. . . . or even filler songs on albums. Remember the old Toni Basil song “Mickey?” That single is available on all sorts of “Best of the 80s” compilation discs, but whatever other songs were on that album are not available for purchase. Or the other songs on the album with “Come on Eileen,” or “Tainted Love,” or whatever.

  20. Jennifer,

    Yeah, civil disobedience might work, but only if there are enough people who are willing to pay the price (jail time, and difficulty finding a good job later.) I don’t see that happening, when all you have to do nowadays is pay a one-time fee, usually less than $10,000, to get them off your neck.

    Just to be clear, I do believe copyright is a good thing, and it does enrich our lives when it is protected and creators can expect some renumeration for their work. But I don’t see how longer than lifetime helps anyone, other than lawyers, who didn’t do any of the creating in the first place.

  21. When the entertainment industry sells me a product that cannot be copied, they strip me of my fair use rights

    You do not have “fair use rights.” No one is obligated to sell you media in a form that can be copied.

    If you happen to copy, and are sued for copyright infringement, “fair use” may be available to you as a possible defense. It is not, however, a positive “right” that has been stripped from you.

  22. WHat the hell? I swear, I didn’t even realized I double-posted, let alone that multiple monstrousity!

  23. I brought this up in another thread, but never got a response: The comments system here has become insanely bogged down. Very, very, very slow posting. It’s obviously causing problems for posters like Jennifer, who apparently kept hitting “POST” since the thing now moves so slowly you can’t tell if your comments are gonna go through or not.

  24. Sam you were-
    But I only hit post twice. I can see a double posting, but fourteen?

  25. Sam I was:

    I direct you to Section 107 of the Copyright Act. There are indeed fair use provisions in the copyright act. I quote:

    “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    2. the nature of the copyrighted work;

    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    4. the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    The ‘Four Factors’ have been widely interpreted by the courts to include the right to make personal copies for non-commercial use. The ‘Fair Use’ provision is an integral part of the copyright act. In essence, it says “We’ll agree to protect your intellectual property, provided that you are willing to allow ‘fair use’ of your product”.

    Removing the ability to copy a copywritten work for educational, personal, research, or critical use is a violation of the spirit of the copyright act.

  26. OFF TOPIC:

    14 dups, Jennifer. Golly, I doubt I could have done that if I tried. I’m just glad it didn’t happen to me. πŸ™‚ πŸ™‚ πŸ™‚ As Sam I Was just said, the H&R posting software seems to have been acting up for the last couple of weeks now. Maybe the backend database they’re using is starting to crack under the volume of messages. If that is the case, swapping it out can be a real pain in the ass.

  27. What if I buy a CD, don’t I own that CD? So why can’t I share the information on the CD?

  28. “Time out” for Jennifer!

  29. Dan, thanks, I’m well-acquainted with U.S. copyright law, including the fair-use provision. So I will say again: “Fair use” is not a positive right, and no one is obligated to provide media that can be copied. If you buy media that you can’t digitally reproduce on a PC, then stick a tape machine up to your speakers and hit “RECORD.”

    If I come up with a pristine-sounding music technology that just so happens to result in media that can’t be reproduced, are you telling me I’m violating the “spirit” of fair use if people willingly purchase my stuff? That’s ludicruous.

  30. Luca Brasi:

    When you “buy a CD”, you bought the plastic and metal that makes up that CD, probably along with a license to use the information (holes, really) on that CD in certain ways. You did NOT buy the songs / software / pictures / whatever on that CD, unless the creator of that information (or their representative) says that you bought the information.

    Then again, the argument that file sharers are costing the record industry money doesn’t hold much weight with me because the industry hasn’t convinced me that the file sharers would have otherwise bought the CDs that they’ve downloaded. Unless I see evidence otherwise, I would suspect that people would have simply not listened to the music they downloaded, or requested it on the radio stations they listened to.

  31. Jennifer,
    How’s this for pissing off the RIAA?
    Step 1: Buy lots and lots of songs on old records or cassettes. Preferably, dirt cheap at a garage sale. Or if you wanna break the law, but still leave the RIAA out to dry, just buy empty cases.
    Step 2: Download every song, on every album that you buy. Try to get caught.
    Step 3: When they send you the letter asking to settle, send them a picture of you giving them the finger.
    Step 4: Go to court with the pile of evidence proving that you owned the song, but you wanted a digital-digital copies, not a conversion from analog.
    Step 5: Laugh maniacally.

  32. For further notes on the crooked nature of major label business practices, I direct you to producer Steve Albini’s essay.

    http://www.negativland.com/albini.html

  33. People have committed civil disobedience when individuals’ rights have been violated — during the early civil rights era, for example. People have committed civil disobedience when they are so strongly attached to a life-or-death principle that they see no other choice — people engaged in the abortion debate, for instance.

    But breaking the law, violating someone’s rights as a copyright holder, in the name of “pissing off the RIAA”? WHY? Because it was fun getting free music for a while there before reality kicked back in? I mean, seriously, where does the overheated passion come from?

  34. Mo-

    I’ve often wondered about the implications of doing what you described, as well. Nowlet me see if I can get this online. I swear, I only hit Post TWICE the last time. I don’t know where the other dozen repetitions came from.

  35. Sam I was said:
    “If I come up with a pristine-sounding music technology that just so happens to result in media that can’t be reproduced, are you telling me I’m violating the “spirit” of fair use if people willingly purchase my stuff? That’s ludicruous.”

    Perhaps, but what if you create an encryption algorithm which has the sole purpose of defeating attempts to copy the material as the copyright law clearly allows? Furthermore, what if you lobby the government successfully and get laws passed that make the mere attempt at cracking the encryption illegal? The entertainment industry has done all of this.

    I would argue that your example is not relevant because it is not a violation of the spirit of the law, but part of the intrinsic nature of the material. The right to copy material for fair use does not include the right to free access to a copy machine. But the example I offered is fundamentally different – it’s an active attempt to thwart rights specifically described in the copyright act, and enforced by law. The person who sponsored that particular legislation also happens to be the largest recipient of entertainment industry funds in Congress.

    You have to go back and consider the purpose of copyright law. It is a contract between producer and consumer, enforced by government, with the ultimate goal of giving people an incentive to create new works that benefit society as a whole. To do this, we give creators a reasonable amount of time to profit from their work, and protect them from theft during this period. Part of the contract for consumers is that they be allowed fair use of the product if they buy it. And then eventually the copyright expires, the work enters the public domain, and the culture benefits from it.

    Now look what is actually happening: Copyright protection is being extended indefinitely. Fair use provisions are being eroded. Tell me how the culture benefits when a copyright is extended indefinitely, and the copyright holder takes the work out of print and doesn’t make it available at any price? Look at Disney’s practices: They have a habit of releasing material on DVD for a short period of time, then very publically announcing that it goes back into the ‘vault’ for another ten years. When my daughter was born, I wanted her to see ‘Beauty and the Beast’, one of the best animated films made. But I couldn’t, because Disney took it out of circulation. That’s fine, because the work is fairly new and Disney owns a legitimate copyright for it (although I might argue that copyright holders should have a responsibility to make sure the product is available for sale). But what about Mickey Mouse? The copyright on Mickey should have expired long ago, but Disney has successfully extended it. And even though those early cartoons should be in the public domain, Disney has kept many of them out of circulation completely.

    Imagine how much poorer our culture would be today if we were not allowed to build on the works of the past that are now in the public domain. What if Shakespeare were still under copyright? Or the works of Beethoven or Bach? If the entertainment industry gets its way, new works will not enter the public domain as older ones do. I hope that in 200 years the music of The Beatles is available to everyone, but I have my doubts.

    In any event, this is a bit of a sidetrack. The thing is that fair use is an important part of the social contract embodied in copyright law in the first place, as was a reasonable expiry period. Both of these important aspects of the law are now being changed due to lobbying pressure.

  36. Sam I Was:

    I think the problem that a lot of the “stick it to the man” people have with the RIAA is that the copyright holder of music is almost never the creator of the work, but the distributor. As a computer programmer, I have usually objected to terms in my contracts that turn over ALL my programming work to the company I work for, whether it was on my own time or not. Sometimes we were able to change that, other times, not, depending on how desperately I wanted the paycheck. I can understand how people would get “righteously indignant” if they knew that a non-creator was getting rich off the work of a creator, while the creator received almost nothing.

  37. Shawn:

    That may be the honest case for some. But it’s hard not to notice that much of this “stick-it-to-the-man” reasoning came up only after the rise of a mechanism that not only stuck it to the man, but that just happened to provide people the man’s stuff for free, too.

  38. it’s funny, because indie labels and acts are getting fucked by downloading a lot harder than larger label acts are, since they make so much more (and lose so much more) per cd/LP/etc.

    it’s sort of fucked, really.

    to be fair, i DL a few dj and live sets from various artists. and when those acts are in town for a pa or dj gig or they release stuff, i buy it cause i feel i owe them, even if it’s just a badly recorded MD boot from some small club. sometimes i get rewarded by getting a better copy of the same show (pansonic put out a series of live gigs that resulted in a few gems two years ago i think)

  39. Most downloaders are kids with rocks for brains. They won’t learn the true meaning of “property” till they own some.

  40. Jennifer, just to drag this thread back up to the top again —

    If you were told between October 1992 and October 1998 that
    noncommercial copying was legal, you were CORRECTLY informed.
    In 1992’s Audio Home Recording Act, the music business traded
    away their right to sue for noncommercial copying in exchange
    for getting a percentage of the sales for certain kinds of blank
    digital media (DATs, the “Music-Only” CD-Rs designed for home-
    stereo burners, etc.) — the so-called “DAT Tax”. They took back
    the right in the DMCA six years later (but still collect the
    DAT tax — hmmm).

  41. Sam,
    I pay for my music. If I feel it’s overpriced, I don’t buy it and I borrow my friend’s copy. Wanna know why I feel the urge to “stick it to the man?” The RIAA bilked me out of money due to years of price fixing. You know how much of that I got back? Four-fucking-teen dollars. Not even enough to buy an album. Why should I give a damn about an organization that illegally colludes (you may think that anti-collusion laws are unfair, but they’re still the law), tries to break into my computer and bribes Congress to extend copyright (and restrict innovation ala the DMCA) in a way that would make our founding fathers have a stroke?

  42. Sam,

    I won’t argue with your stance on copyright law, but you stated “For those of us who argue this from a philosophical standpoint”. The question is WHY argue philosophy when reality paints an actual picture rather than a theoretical one?

    From the days of sheet music, to piano rolls, to AM radio, to 78’s, etc. there has been an argument of copyright and the cry of lost sales when the actual results have been the exact opposite.

    Downloading is just the next target in the righteous idignation that has a basis only in philosophy but not in fact. The RIAA like to flood the market with data regarding the drop in the number of units shipped, but steadfastly refuses to release any data reagrding new releases. It’s disingenuous for the RIAA to make any claims about what the data says when they won’t release all the raw data.

    Downloading services (pay or not) are what many customers want, certainly new customers like that method. This puts artists and publishers in control of their product and puts record companies in the position of being promotional entities at best. Perhaps the record companies, especially in the situations of costly acquisitions, have loaded themselves with debt at the wrong time. Tough shit for them.

    I don’t care about the business plan of the record compaines nor do I care about the business plans of individual artists. If they suffer because their plan reduces the exposure of their work to me, I do not feel sorry for them. If they expect to be paid for each “impression”, that’s their bad business plan in action, not my “theft”. Perhaps I should be charging them for the impressions. I probably won’t get any takers, but it’s still valid as a philosophy, right?

  43. Lazlo: There is no tax on CD-R. The Audio Home Recording Act was written for a specific kind of device — a digital audio tape recorder — and involved built-in restrictions that prevented serial copying.

    The technology never really took off, and thus the Audio Home Recording Act is mostly moot at this point.

    In any event, the AHRA did not provide Jennifer or anyone else the right to sit around making multiple copies — i.e., serial copying — to give away.

    I don’t understand why people think the threshold for copyright infringement is whether they profit off their distribution. The threshold is whether the copyright holder has been damaged by the distribution — something that can happen whether Jennifer sells or gives away unauthorized copies. (Notwithstanding fair-use exemptions, of course.)

  44. Sam,

    I won’t argue with your stance on copyright law, but you stated “For those of us who argue this from a philosophical standpoint”. The question is why argue philosophy when reality paints an actual picture rather than a theoretical one?

    From the days of sheet music, to piano rolls, to AM radio, to 78’s, etc. there has been an argument of copyright and the cry of lost sales at the verge of every technological advancement when the actual results have been the exact opposite.

    Downloading is just the next target in the righteous idignation that has a basis only in philosophy but not in fact. The RIAA likes to flood the market with data regarding the drop in the number of units shipped, but steadfastly refuses to release any data reagrding new releases. It’s disingenuous for the RIAA to make any claims about what the data says when they won’t release all the raw data.

    Downloading services (pay or not) are what many customers want, certainly new customers like that method. This puts artists and publishers in control of their product, if they so choose, and puts record companies in the position of being promoters/marketers. Perhaps the record companies, especially in the situations of costly acquisitions, have loaded themselves with debt at the wrong time. Tough shit for them.

    I don’t care about the business plan of the record compaines nor do I care about the business plans of individual artists. If they suffer because their plan reduces the exposure of their work to me, I do not feel sorry for them. If they expect to be paid for each “impression”, that’s their bad business plan in action, not my “theft”. Perhaps I should be charging them for the impressions. I probably won’t get any takers, but it’s still valid as a philosophy, right? If my father had a nickel for every time he didn’t want to hear The Beatles…

  45. “If they suffer because their plan reduces the exposure of their work to me, I do not feel sorry for them.”

    Bingo!

    Perhaps P2P is the greatest marketing tool ever to come along for recorded music. Maybe it is the salvation of artists and those with whom they sign contracts. Maybe it’s all that and more.

    But if a copyright holder wants to be an idiot and not take advantage of this glistening new technology, then it’s HIS problem, and he’ll suffer for it. Aren’t we all market believers around here? Won’t the market step in and provide the products we want, delivered the way we want them delivered? When Kmart made poor decisions, we didn’t “punish” it by going in and stealing its stuff. We just started shopping at Wal-Mart instead.

    There’s nothing stopping anybody from making music and sticking it out there for the file-sharing masses.

    The RIAA like to flood the market with data regarding the drop in the number of units shipped, but steadfastly refuses to release any data reagrding new releases. It’s disingenuous for the RIAA to make any claims about what the data says when they won’t release all the raw data.”

    What are you referring to, exactly? Where has the RIAA refused to release which data regarding new releases?

  46. Most downloaders are kids with rocks for brains.

    The tracks you like for free vs. paying an egregiously inflated price for an entire album which you may or may not like. Who’s got the rocks for brains? Do not confuse moral fortitude with intelligence.

  47. the copyright holder of music is almost never the creator of the work, but the distributor

    It mitigates the moral argument somewhat that the distributor has used his control over both music distribution and the copyright system that supports it to extort intellectual property from an artist. The concept of the industries represented by the RIAA as “owning” the material, and of downloaders having “stolen” it from them, is based on a contractual distinction. How do you make normal, generally lower to middle class people feel bad about stealing from thieves and – to a far lesser extent – wealthy primadonnas obsessed with bling-bling?

    I was among those who bought more after I started downloading, because the exposure I got to bands I had previously never heard of was huge both from just personal interest (“holy shite, I didn’t know they even made music like that”) and as a researching consumer faced with the choice of which CDs to buy. The recording industry did not do enough to provide the information I wanted in the medium in which I wanted it. Luckily for them at least insofar as I am concerned, being able to download and listen to select songs by select artists led me to branch out and increase my purchasing significantly. But in a global sense, the industry will either cater to the demands of its consumers, or it will suffer. Whether file swapping actually has caused the kind of damage which the industry claims it has, it is an industry that must fulfill the demands of its consumers, and a powerful black market in low quality reproductions (MP3 sucks, kids…it was designed to be a compressed soundtrack format for video files) is an indication that it has not. None of the litigation, legislation, advertising, and pissing and moaning so far has significantly lessened file swapping, and no copy protection at all will get around the basic fact that at some point, a song on a computer has to exist as unencrypted digital data before being piped through a sound card. There is no way to absolutely prevent file-sharing, because there is no way to absolutely copy-protect media.

    The pertinence of this study however, if it hasn’t already been said, lay in the legal veracity of the lawsuit. Music downloading is already illegal, but the lawsuit was never based on that. The question in a civil suit is has the industry been damaged by music downloading (and, specifically, by the music which the defendants made available) to the kind of degree to warrant strong-arming ISPs into giving out subscriber information, dragging children and the elderly through drawn out litigation processes which are obfuscated out of an intent to intimidate the layman, and demanding settlements for losses which cannot be blamed on the defendant, but rather on the number of people like the defendant (acting alone, each defendant could not have made any impact on sales without the assistance both from other defendants and from the P2P network that connected them)? The attitude that it has is I suppose cum hoc, propter hoc: music sales fell as music downloading increased, therefore music sales fell because music downloading increased. However, the RIAA has failed, publicly at least, to establish a compelling causative link between the two, instead pretending that to paint everyone who downloads music as someone who does not buy music is a claim that rests on its own merits.

  48. I’ve downloaded maybe 500MB of music from Kazaa…but I would not have bought it no matter what the price. I only buy vinyl since I am a dj, and I spend a lot of money on vinyl.

    Am I evil?

  49. J Alex,

    Depends on how you spin that vinyl…

  50. J. Alexander Lowman,

    If downloading were not available to you, what would you have done? Copied it from friends onto tape, listened to the radio more, not listened to it at all, or something else? No value judgements, I would simply like to know. Thanks.

  51. My general thoughts on the subject:

    1) Is downloading music stealing? Probably. I don’t really care, quite frankly. As long as the RIAA continues to bribe politicians who, in turn, abuse my tax dollars by passing whatever pet piece of legislation the RIAA has in mind, I won’t be purchasing their product.

    2) It’s unclear to me whether or not musicians suffer more from my downloading of their music..or from the political pressure and intimidation that the RIAA has applied to the government to allow them complete ownership of a piece of music (i.e. by classifying musical works as “works for hire”).

    3) Yes we need copyright protection but it cannot be extended indefinitely. I won’t re-hash this argument..see Dans well though out posts for more.

    BTW, I love this t-shirt…bought it for a friend for his birthday πŸ™‚

    http://www.tshirthell.com/shirts/tshirt.php?sku=a251

  52. There is no tax on CD-R. The Audio Home Recording Act was written for a specific kind of device — a digital audio tape recorder — and involved built-in restrictions that prevented serial copying.

    In the US the price of “music” CD-Rs, which are required by most consumer-level standalone CD recorders, includes a standard per-blank royalty fee that goes directly to the RIAA. (These recorders incorporate the SCMS technology you allude to.) Under the AHRA, these royalty fees must be paid for any “digital audio recording device” or “digital audio recording medium” (as defined by the Act and subsequent court decisions) manufactured in or imported to the United States.

    The technology never really took off, and thus the Audio Home Recording Act is mostly moot at this point.

    These provisions of the Act are still in effect and can still be applied to new technologies as they become available.

    In any event, the AHRA did not provide Jennifer or anyone else the right to sit around making multiple copies — i.e., serial copying — to give away.

    In the context of the AHRA, “serial copying” refers to making a digital copy of a digital copy, which the Serial Copy Management System is designed to prevent. Per section 1008 of the act:

    No action may be brought under this title [Title 17, “Copyrights”] alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

    In other words, unauthorized copying of musical recordings for noncommercial reasons was no longer punishable under US law under this Act.

    I don’t understand why people think the threshold for copyright infringement is whether they profit off their distribution.

    The RIAA seemed comfortable with that threshold when they helped craft the AHRA.

  53. Sam,

    Try googling for the RIAA data yourself. I tried and all I could find was RIAA quotes saying they don’t release that data.

    Again, I can’t argue against the philosophy of copyright, but I contend that copyright isn’t even the issue; it is merely the excuse to evoke sympathy for the middleman.

    It wouldn’t even bother me that one middleman would take action against another middleman; it’s when the end customer gets the bulk of the wrath that I question the motives and business sense. I worked for a guy who refused to give employee discounts, and even argued “you should want to pay more to keep us in business.” It’s the “What’s good for GM is good for America” logic that is nothing but pure bunk. I’d like to see one historical example of customers killing the golden goose, I suspect there aren’t any.

    Whatever legal, moral, or philosophical grounds they may have, record companies are staring down the barrel of insignificance and in a few years’ time it won’t matter anymore. The same thing’s run the same course several times already, only the technology has changed. In five years we’ll have almost all music purchased by download, and ten years after that we’ll get stories about how the amount of downloading has dropped X% from the the years before and there will be some new boogeyman that’s the cause of the decline. It was bullshit before, it’s bullshit now, and it’ll be bullshit again.

  54. Of course, those CD sales that file trading promotes are for *blank* CD’s to burn the pirated loot.

  55. It never ceases to amaze me how theft is continually justified by “No, really, it’s good for them.”

  56. Given this crowd, I didn’t expect to see the two opposing views above. I’ll add my “So theft is ok?” reply anyway. Philosophical equivocators who attempt to separate physical from intellectual property will follow me.

  57. Yeah, why let a little empirical data get in the way of one’s healthy righteous indignation?

  58. Empirical data that says stealing is justified?

  59. I’m very interested in the pragmatic balance between exclusion and availability that encourages the production of intellectual property–but that’s very long other discussion, but see Reason’s interview with economist Paul Romer at URL: https://reason.com/0112/fe.rb.post.shtml for some insights.

    But surely it’s an interesting kind of “stealing” that makes me richer, isn’t it?

  60. Bryan:
    If I steal a candy bar from the 7-11, what happens? The police might charge me. So if downloading a song is “theft”, then why aren’t these people being charged with crimes? I mean, you don’t see M&M-Mars suing everyone who lifts a candy bar, do you? The lawsuits from the RIAA are extortion, nothing less. They know that the folks will settle, even if they believe themselves to be innocent, because the court costs alone would be more than a settlement. And so each and every lawsuit is a 100% slamdunk for them. AKA extortion.

    If it’s legally “theft”, then charge people with the crime of theft. I’m not trying to justify theft by saying “well, theft drives up prices”. But intellectual property laws aren’t that cut and dried. If they were, then I imagine every last one of us would be in prison for dubbing a tape or ripping a CD. The laws just aren’t that solid on this matter. What you’re saying, however, is, “well, it’s not really theft, so we should prosecute, but it really is theft, so we should sue.” Which is it? If it’s theft, then everyone who ever dubbed a tape, burned a CD, or downloaded an MP3, should go to prison. If it’s not theft, then the RIAA shouldn’t be suing.

  61. why let a little empirical data get in the way of one’s healthy righteous indignation?

    This would be a valid retort only if it were addressed to someone righteously indignant about file-sharing’s effect on sales.

    For those of us who argue this from a philosophical standpoint — who believe copyright infringement is wrong, and that much file-sharing is infringement — “empirical data” about sales during some given period is irrelevant.

    I realize I am in some ways speaking for Critic here, but I don’t recall his arguments being based on “righteous indignation” about file-sharing’s effect on sales.

  62. I’m firmly in the intellectual property is still property camp, but it annoys me that people think that just because you download a song you won’t buy the cd. I hadn’t bought a cd for years until Napster came out. It prompted me to buy 8 or 9 cd’s. Frequently I would buy multiple albums of a band after downloading one of their songs. Similarly I bought a copy of Adam Smith’s “Wealth of Nations” *after* reading most of it online. I also bought two Mark Twain books after reading “The Mysterious Stanger” online. So, I think we need to seperate two different issues: 1) the value of intellectual property rights and 2) the, in my mind, idiotic thinking of the recording industry that people either download or buy. For me, downloading is simply a taste test.

  63. “But surely it’s an interesting kind of “stealing” that makes me richer, isn’t it?”

    Ron,

    It is interesting. And if it looks legit to the industry, they probably will allow some free samples, suitably packaged as such, into the data stream for free downloading. Creating promotionals is nothing new in the business world. But is it not reasonable that the property owners should have sole control over when and how they promote their wares?

  64. I have a question about the supposed theft of intellectual property: say some guy invents a machine enabling cars to run on tapwater. Obviously I am not allowed to manufacture and sell these machines without permission from the inventor, but am I allowed to make just one such device and put it on my own car? What about making the devices and GIVING (not selling) them to friends?

    I’d always been told that it was not illegal to make copies of tapes and CDs and GIVE them away (good thing because I did a lot of that in the 80s); it’s selling them for profit that was illegal. So I don’t really understand how the RIAA has the legal authority to go after those who download copies of songs, or allow others to download off the computer.

  65. If it’s theft, then everyone who ever dubbed a tape, burned a CD, or downloaded an MP3, should go to prison. If it’s not theft, then the RIAA shouldn’t be suing.

    This is at heart a petty semantics argument. Yes, the violation is copyright infringement, not “theft.” And the law calls for criminal prosecution of copyright infringement only in cases that meet selected criteria (for example, commercial infringement and a retail value over $1,000).

  66. I’d always been told that it was not illegal to make copies of tapes and CDs and GIVE them away

    You were misinformed.

  67. To “Sam I Was”:

    You said, “For those of us who argue this from a philosophical standpoint — who believe copyright infringement is wrong, and that much file-sharing is infringement — “empirical data” about sales during some given period is irrelevant.”

    So, for you, this is purely philosophical issue, completely separate from empirical sales data. Hmmm. Then I suppose that, before MP3’s, you were standing on street corners holding signs that said “SAY NO TO TAPE DUBBING!”?

    Here’s my problem with your argument. You say that empirical data doesn’t matter, and that it’s purely philosophical. But if that was truly the case, then numbers don’t matter, and me dubbing a RUN-DMC tape back in 1987 is just as bad (philosophically) as me downloading 40 gigs worth of songs today.

    For the record industry, it is indeed “empirical data” that matters. Why? Because, these lawsuits came about based on their falling CD sales, which were due to (according to them) filesharing. It has little, if anything, to do with philosophical objections, and everything to do with EMPIRICAL DATA, aka CD sales. If it WERE “philosophical”, then the RIAA would have been suing tape dubbers back in the 80’s. But noooooo, they didn’t go after the “philosophically wrong” music sharers until their CD sales started to plummet. Then, all of a sudden, they started trumpeting the value of “intellectual property”.

    So, their actions are, quite obviously, in reaction to empirical data about CD sales. But somehow, you claim that CD sales don’t matter? Whatchootalkinbout? So, empirical data is a good enough reason to START suing people, but it’s not a good enough reason to STOP suing people? Not exactly “consistent”, SamIWas.

    SO, were YOU out there protesting tape dubbing 15 years ago? Or did your newfound “philosophical objection” come about as a result of falling CD sales, aka, EMPIRICAL DATA? Are YOU any more consistent than the RIAA? Somehow, I doubt you were worried about copying cassette tapes….but who knows. Maybe I’m wrong.

  68. What’s more interesting is that while the major labels are bleeding cash and spending ridiculous amounts of money to go after file swappers, indie labels continue to make money in the face of file sharing. Go figure.

    Here’s a question; what about tab? If you can’t separate physical from intellectual property, then someone that translates music from his favorite band into tablature is commiting the same crime as someone who downloads an MP3. Maybe even more so, since the tab is the actual song (and intellectual property) whereas an mp3 is a recording of it.

  69. What in the world do I have to do with the RIAA? And what in the world does the RIAA have to do with the broader argument against copyright infringement?

    You’re isolating one aspect of a bigger debate — a group called the “RIAA” and its decisions on how to approach a phenomenon called “file-sharing” — and using it to paint broad strokes. I don’t care whether the labels represented by the RIAA choose civil prosecution or not; I don’t have any interest in the arbitrary ups and downs of overall CD sales over the past couple years. I care about the rights of an individual intellectual property owner, as they exist and as they should exist.

    These arguments far too often descend into discussions about the mechanics of some group called the RIAA. Who cares? It has nothing to do with the right or wrong of copyright infringement, or with an individual copyright holder’s rights.

  70. Ronald Bailey says, “So will the idiots who run the Recording Industry Association of America drop their lawsuits and let the artists get back to making money?”

    Ronald, how did you ever get the idea that the music business was primarily (or even substantially) about ARTISTS making money? Instead of paying attention to the RIAA lawsuits, perhaps you should pay attention to the lawsuits that artists file against their recording companies. Prince, for example of someone who had both artistic and commercial success, but ended up “owing” a big chunk of his earnings to “the company store”? For every high-profile Prince, there are tens or hundreds of less-popular artists who can’t get out of the financial quicksand of their recording contracts.

    The RIAA and record companies like to use artists as “poster children” for their IP cause. But consider, many artists — live, flesh and blood people with hopes, dreams, and dues they’ve paid — have died broke after suffering in obscurity. The corporations — fictional “people” that may outlive generations of artists — which own the record companies and call the shots for the RIAA, just keep getting richer.

    It’s not just the recording industry that’s guilty of this kind of stuff, mind you, but show-biz in general. I just read the other day where Lucy Lawless and Kevin Sorbo are suing their studio (Universal, I believe), for alleged fraudulent bookkeeping that establishes both Xena and Hercules as “unprofitable,” thus relieving the studio of its contractual obligations to split the profits with the artists. Really! Such a maneuver would be very familiar to the poster children of the RIAA.

    I say the artists should do as Prince did for much of his recen career: distribute directly to consumers via the internet. That way, the artists can actually see some coin.

  71. These arguments far too often descend into discussions about the mechanics of some group called the RIAA. Who cares? It has nothing to do with the right or wrong of copyright infringement, or with an individual copyright holder’s rights.

    Silly me, here I was, talking about the RIAA, and then it turns out that this issue has nothing to do with them. Dang! Thanks for straightening me out, Sammy.

    Aww, hell, wait a minute. Wasn’t the subject of this commentblog, “Now Will the RIAA Stop Trying to Kill Its Industry?”? Yes, yes it was.

    So, you want to take the RIAA out of the equation now, since the RIAA is not philosophically consistent. However, if it weren’t for the RIAA, we’d not be having this discussion right now.

  72. The RIAA is their Boogey Man, Sam.

  73. Jennifer,

    It sounds like you’ve just described something that would (probably) be covered by a patent. If someone did patent a device allowing automobiles to run on tap water, and you came up with the same device (whether independently or not), they could sue you under patent law. Copyright would only apply to the actual plans, not anything made from the plans. And yes, I believe (IANAL) they could sue you for patent infrigement. It depends if it is worth it to them to do so.

    As far as I know, copyright applies to ideas that have a physical representation, or something like that. A speech delivered on a street corner is not copyrighted, unless it was first written on paper, or recorded in some way (audio or video). That recording will be protected by copyright law (life of creator + 75 (95?) years).

  74. ewilliam, YOU can discuss whatever you want about the RIAA. But Julian Sanchez started this tangent above, when he identified “righteous indignation” on a topic where there is none. I responded to Sanchez; you responded to me; I responded to you.

    Follow that discussion, and there’s nothing inconsistent about what I’ve written. I haven’t taken “the RIAA out of the equation now,” because I never inserted the RIAA into the equation in the first place.

  75. Shawn Smith: Yes, copyright protects an original expression of an idea. At its heart, it protects an exclusive RIGHT to COPY this original expression.

  76. LOCK YOUR DOORS!
    HIDE YOUR CHILDREN!!
    FOR GOD’S SAKE CLOSE YOUR BLINDS!!!
    THE RIAA IS COMING!!
    RUN! RUN!
    BWAAA-HAAA-HAAAA-HAAA!!

  77. Idea for anti-RIAA Civil Disobedience:

    Get a computer and use it to download zillions of songs; also, stuff your files with zillions of songs for others to download. BUT, make sure all of these songs are out of print, so that even if you did buy them you’d do so in a used-music store and the RIAA wouldn’t get a penny anyway.

  78. If we look at the PURPOSE of copyright, as specified by Article I, Section 8, Clause 8, it is “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Now, please explain why copyright needed to be extended twenty years. More than fifty years wasn’t long enough? please. And wouldn’t a shorter copyright term (say, 14 years + 1 possible 14 year extension) force successful creators to create more “useful Arts,” instead of just living on the laurels of past successes? And in some cases, the successes of ancestors?

    Yes, I know SCOTUS said no (in Eldred v. Ashcroft).

  79. Jennifer,

    Out of print or expired copyright?
    Big difference.

  80. Critic – πŸ™‚ Damn well, thank you.

    Shawn – nothing…I wouldn’t have bought it, I don’t listen to the radio very often, and if I were to hear that music at all, it’s probably at a friend’s house or at the club or something.

  81. Correlation is not causation.

    If a study showed that the most popular stores were robbed the most, that would not demonstrate that the robberies caused the high level of sales. It’s not at all surprising that the recordings which sell the most are also pirated the most; I consider it far more likely that the popularity drives the piracy rather than the other way around.

    The RIAA acts like a bunch of jerks, but that doesn’t justify tossing out pragmatic excuses for violating property rights.

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