Andy on the Road

5 January 2010

Clearing the Cobwebs

Happy 2010, all.

I’m back in DC after another lovely few weeks up in Massachusetts. I feel as though I’ve been out of touch with the world of current events, so I took a slice of my extended break to catch up on my RSS feeds. Here are a few stories that caught my eye. Once things settle down here a little bit I’ll start writing in earnest again.

  • Although I never wrote much about it on this blog for reasons I expressed here, I’ve been following the recent developments in the Sony v. Tenenbaum case. After the jury verdict came down and formal judgment was entered in December, much has been made of the constitutionality (and in some circles, the prudence) of the $675,000 verdict in Tenenbaum and $1,920,000 in Captiol v. Thomas. The team defending Tenenbaum have now filed a motion for a new trial on these grounds, arguing the verdict violated due process under St. Louis I.M. & S. Ry. Co. v. Williams and progeny. Predictably, Torrentfreak sees this as potentially diluting the lofty statutory damages used by the RIAA to scare its patrons into so many $3500 settlements, while Ben Sheffner over at Copyrights & Campaigns notes the conspicuous absence of any case that has found statutory damages (as opposed to punitive damages) to be violative of due process. UPenn was gracious enough to host an excellent back-and-forth between Sheffner and Pamela Samuelson on this exact subject, for the especially curious. Constitutional question aside, Ron Coleman over at Likelihood of Confusion gives a great wide-angle perspective on the whole affair, which I found rather refreshing.
  • Speaking of Mr. Sheffner, he posted up on Wired the 5 cases that defined music law for 2009. While I disagree with his analysis (I often do), he lays out exactly where we are in this field today: RIAA filesharing battles finding results with massive judgments against individuals, the MGM v. Grokster “inducement” theory finding some teeth in the Bit Torrent realm, and content creators clashing head-on with online service providers over DMCA safe harbors. (And Bridgeport v. Dimension Films is still good law, much to my chagrin.) And while we’re on the subject of Wired end-of-the-era lists, here are the top 10 cybercrimes of the decade.
  • Meanwhile, some law nerd circles – including the always excellent Volokh Conspiracy – are buzzing about the constitutional questions raised by the health reform legislation pending in Congress. The argument, according to those raising it, is that the mandate that all persons buy health insurance is an unconstitutional exercise of congressional power under the Commerce Clause. As I was discussing with my roommates tonight (GWU Law 2Ls, the lot of us), I just don’t see this argument flying under the modern-day Lopez test. Nevertheless, there appears to be a lawsuit waiting for ripeness in the wings.
  • On the music front, my friend Sawyer Jacobs’ fantastic music collective Underwater Peoples just released their winter sampler. For those of you that missed it, they made a good splash back in June with their summer analogue, including some rare praise from Pitchfork. Fully acknowledging my bias after spending a great summer with Mr. Jacobs last year as Berkterns, I think these guys are one of the coolest collectives to hit the scene since Elephant Six. And speaking of those cats, one of the first new issues to come out of E6 in what seems like years is a new Apples in Stereo / Olivia Tremor Control side-project, Thee American Revolution. Both the UP Winter Sampler and the Thee American Revolution albums have been in heavy rotation on the ol’ iPod over the past week or so. Well, those and the annual DJ Earworm United State of Pop mashup.
  • My buddy (and singer-songwriter) Brian Bergeron has gone all Kerouac on me and moved from his (and Kerouac’s) hometown of Lowell, MA out to San Francisco. While out there he’s been firing up the blog and commenting on music, media, and society – subjects close to both of our hearts. I am delighted to see him take up the issue of net neutrality (which he correctly identifies as a less-flashy-than-normal cause for artists, but extremely important), and wish him all the best on his adventures out there.
  • For Brian and my other music industry friends: take a moment to read Bob Lefsetz’s predictions for 2010 and beyond. It’s rather 30,000 feet and raises more issues than it solves, but I suppose those are the sort of characteristics that go with the future-predicting territory. I think he was dead-on to raise the potential Live Nation / Ticketmaster merger as the most significant event on the horizon this year. I’m studying antitrust law now, in part to help me wrap my head around this beast. My fellow industry wonks may also appreciate this recent interview of Donald Passman in the Berklee Music Business Journal, marking the release of the new seventh edition of his All You Need to Know About the Music Business.
  • On the lighter side, way back in November Wicked Local Brookline brought us the best use of federal stimulus money I’ve heard yet: a proposal to fix the MBTA 66 Bus.
  • My new favorite blog is the Legal Satyricon, brought to you by IP and First Amendment lawyer Marc Randazza (working in one of the most interesting places a First Amendment lawyer can work these days: the adult entertainment industry). Randazza is most recently famous for representing the owner of glennbeckrapedandmurderedayounggirlin1990.com against an attempted WIPO takedown by Glenn Beck himself. Randazza’s eventually successful response brief (PDF) has to be the funniest legal filing I have ever seen. As his casework suggests, the Legal Satyricon is a profoundly irreverent (and sometimes downright nasty) look at IP and free speech issues, delivered in a smug but intelligent way. Recently he took aim at  Alan Grayson for using an anti-fraud statute to attempt to imprison the founder of an anti-Grayson website (I know. I used to like the guy too.), and totally destroyed former Representative Ted Klaudt for trying to use “common law copyright” to keep news sources from printing stories about his conviction of child rape and witness tampering.
  • Another excellent blogger is my friend and former coworker Chris Devers, who has been combining his various Internet presences into a Posterous blog which I’ve been following recently. A recent highlight was his writeup of the last day of the Zeiss Projector at the Boston Museum of Science’s planetarium. Half the fun of going to the planetarium was seeing that mutant steampunk barbell in action. I hope the new projector can live up to its predecessor.
  • And finally, while I’m as excited as the next tech-minded 20something about the new Apple tablet, I share Mr. Colin Ashe’s well-honed and succinct skepticism about its ability to singlehandedly save the publishing industry.

It’s good to be back. Here’s to a successful new year in all of our endeavors.

20 June 2009

Thoughts on Capitol v. Thomas-Rasset

The retrial of the first (and only) filesharing case to end in a jury verdict (for the record companies, for many thousands of dollars, but under a faulty “making available” theory) started last Monday.  By the end of the day Thursday, we had a stunning, $1.92 million verdict against Jamie Thomas-Rasset, for sharing the following songs on Kazaa:

  • Aerosmith – Cryin’
  • Bryan Adams – Somebody
  • Def Leppard – Pour Some Sugar On Me
  • Destiny’s Child – Bills Bills Bills
  • Gloria Estefan – Coming Out in the Dark
  • Gloria Estefan – Here and We Are
  • Gloria Estefan – The Rhythm is Gonna Get You
  • Goo Goo Dolls – Iris
  • Green Day – Basket Case
  • Guns ‘n’ Roses – November Rain
  • Guns ‘n’ Roses – Welcome to the Jungle
  • Journey – Don’t Stop Believin’
  • Journey – Faithfully
  • Linkin Park – One Step Closer
  • No Doubt – Bathwater
  • No Doubt – Different People
  • No Doubt – Hella Good
  • Reba McEntire – One Honest Run
  • Richard Marx – No and For Ever
  • Sarah McLaughlan – Building A Mystery
  • Sarah McLaughlan – Possession
  • Sheryl Crow – Run Baby Run
  • Vanessa Williams – Save the Best for Last

That’s $80,000 per song downloaded.  Her No Doubt adventures alone cost her $240,000: more than the original verdict of the first trial.  (Of course, it would be naive to assume that No Doubt will see any of that money.  If these companies approach the litigation campaign like they approach releasing albums, they’ll use the high profits from the top 5% to pay for the 95% that lose money, leaving none for the artist at the end of the day.)

There has been all sorts of ink spilled on this issue, from Ars Technica, Ray Beckerman’s RIAA vs. The People, P2Pnet, Ben Sheffner’s Copyrights & Campaigns, Wired, and even the Electronic Fronteir Foundation (raising some intriguing constitutional questions regarding the verdict).

The quote that sticks out for me from all of this comes from Ben Sheffner’s article he wrote for Billboard, where he wrote:

But a question arose after the verdict about whether the sheer size of the damages could lead to a backlash against an industry that is already portrayed in some quarters as overreaching.

Why Billiboard – an organization enjoying a place of high regard amongst all industry professionals due to decades of objective analysis of the music industry – would let such a known hard-line copyright figure pen their lead story on this all-important case escapes me, but even more confusing is how they could let such a gross misstatement of the public reaction onto their pages.  “[A]n industry that is already portrayed in some quarters as overreaching”?  Sheffner may be forgetting (and so I’ll remind him) that the RIAA was rated the worst company in the world in 2007 by Consumerist, edging out Halliburton for the dishonor (a website that appeals to a rather wide and large demographic, according to Alexa).  Amongst people aged 15-30 in America, the disdain for this lawsuit tactic is near universal.  In my Music Industry classes at Northeastern I never once met a person who thought this was a good idea.  Even my friends that went on from college to work for the RIAA or its labels agreed that this was a profoundly stupid business decision.  This is not just a handful of nerds, angry that Napster shut down and left to spreading hate speech on slashdot; this is an entire generation.  Sheffner’s comment makes about as much sense as saying “Coca-cola is considered in some quarters as a satisfying refreshment.”

Sheffner is absolutely right that no one expects the RIAA to get $1.92 million out of this, but what remains to be seen is if that’s because Thomas-Rasset goes bankrupt and liquidates her assets to the RIAA or because her attorneys successfully raise a valid appeal.  This case is most certainly not over, and its aftershocks will be felt for some time.  At the end of all of this, let’s not forget that a mother of four’s financial life was ruined on Thursday.  And what did we, or anyone else, get in exchange?

Update: Meanwhile, Pierce Law students have managed to successfuly settle an RIAA case there (against a woman who had no computer), getting the case dismissed with prejudice.

24 May 2009

Quick update: /. says Last.fm did in fact give up users to the RIAA (but they didn’t want to)

Filed under: followup,RIAA-WTF,seriesoftubes — Andy @ 10:20 pm

Update 6/3 - As that “grain of salt” warning suggested, Ars Technica posted on Monday 6/1 that that last.fm denies this in the clearest terms possible:

As a result, Last.fm’s Russ Garrett has issued a strongly worded denial on Last.fm’s forums. “That particular data is controlled tightly inside Last.fm and is only stored for a short period of time. Any request for such data would have to be approved by myself first. The suggestion that CBS’s ops team provided this data is just not possible—Last.fm operates as a separate entity and their operations staff do not have access to our system,” Garrett said. “It really seems like someone is trying to slander us here.” In another post, Garrett clarified that Last.fm has never given data linking IPs to scrobbles to any third party or to CBS, for that matter.

This doesn’t really change my analysis below as to whether they could do such things without violating the Privacy Policy for the website, but it certainly should allow last.fm users to breath a sigh of relief.

Original post below…

All of this is done with anonymous sources, so take it with a grain of salt, but /. contributor “suraj.sun” says TechCrunch, the party responsible for breaking the Last.fm-gives-up-users-to-the-RIAA story in February, now has released another story claiming additional sources have confirmed that Last.fm data was leaked to the RIAA, by way of parent company CBS:

Here’s what we believe happened: CBS requested user data from Last.fm, including user name and IP address. CBS wanted the data to comply with a RIAA request but told Last.fm the data was going to be used for “internal use only.” It was only after the data was sent to CBS that Last.fm discovered the real reason for the request. Last.fm staffers were outraged, say our sources, but the data had already been sent to the RIAA.

I documented the initial leak back in February, and I noted how impractical it would be to try and base an infringement claim on Last.fm data. It seems TorrentFreak agrees with that conclusion. I still am very skeptical that this happened, but given what we’ve seen from the RIAA over the past few months I’m more inclined to believe the RIAA would try this, as part of their “kitchen-sink” strategy for litigation.

TechCrunch also argues in the link above that such disclosure would violate Last.fm’s own Privacy Policy. I assume the part they mean is…

Certain third party individuals or organisations may have access to your personal information (excluding your email contact information) via Last.fm’s API and webservices or as a result of agreements between Last.fm and its preferred partners. (However, you should be aware that if you provide your e-mail contact information and/or username directly to any such third parties, they may use your information for their own purposes.) Such partners may use such information for their own purposes, which may be either commercial or non-commercial in nature and which may include targeted advertising or direct marketing. These third parties may be based in the United Kingdom or elsewhere (including outside of the EEA). [Emphasis added; British spellings in original]

…paired with this:

We believe in privacy and therefore will take all reasonable measures to ensure that your personally identifiable information remains private. However, in the event that we are required to disclose personally identifiable information by a court, the police or other law enforcement bodies for their investigations, regulation or other governmental authority we will make such a disclosure without being in violation of this Policy.

Assumedly, TechCrunch is arguing that Last.fm lists mandatory disclosure to “a court, the police, or other law enforcement bodies” at the exclusion of other interested third parties (to wit, the RIAA). As Last.fm promises not to give up your “email contact information,” this would mean a personally identifying disclosure to someone who is not a court or the police would be off limits acording to the Privacy Policy. However, you also see this clause…

We collect data regarding the users of Last.fm, including: (i) The Internet Protocol (IP) address of the user’s computer. This may or may not be associated with a particular Internet Service Provider (ISP); (ii) The referring URL, if any; (iii) The browser software identification (i.e. the brand and version of your browser software).

… and it makes no mention as to whether or not the IP address is part of the “personal information” which Last.fm makes available to third parties. So, by disclosing the IP address and not the email, CBS/Last.fm could still give up info to the RIAA and not violate the Policy.

(When I posted about this a couple months ago I also got into a quasi-fight with one Jonty Wareing of Last.fm, who thought I was doubting his existence. Jonty? You still read this? Want to comment on this story?)

17 May 2009

Dark Night of the Soul

Filed under: huh.,missingthepoint,music,RIAA-WTF,seriesoftubes — Andy @ 1:39 pm

(Sparklehorse, from Flickr user broma)

Hello again, folks. My transition into summer has left me with little time for blogging. This is a shame, as always, as there has been a veritable eruption of news in areas about which I love to write. I hope to post up a couple more heady things on current IP affairs over the next few days. In the meantime, I wanted to make sure you all heard the news regarding the new Sparklehorse/Danger Mouse album.

This collaboration is the materialization of a rumor that has been around for years. Danger Mouse helped Sparklehorse on some tracks in 2006′s Dreamt for Light Years in the Belly of a Mountain, and Sparklehorse’s artistic center, Mark Linkous, had cryptically mentioned a more formal collaboration in several interviews since that time. In early April Pichfork noted that the longstanding rumor looked to be true, and what’s more, they were bringing a tour de force of guest artists, including Black Francis (of the Pixies), James Mercer (of the Shins), The Flaming Lips, Scott Spillane (of Neutral Milk Hotel and The Gerbils), Vic Chesnut, and Iggy Pop. Early this month we learned more: the project, called Dark Night of the Soul, is not exactly an album, but rather a multimedia series which you can explore in the link above. The album/book, indeed featuring all of the artists mentioned, was slated for release later this month, with an art installation in LA debuting May 30th to highlight some of the works and showcase some media created by the one and only David Lynch to accompany the music.

As of last week the indie rock world was buzzing in anticipation of this pending, star-studded album. But then, on Friday, Billboard announced that the album was “scrapped” due to “unspecified legal issues with EMI.” This puts the parties involved in a very awkward situation, as on May 7th the album was leaked, and earlier on Friday NPR began streaming the album as part of an exclusive first-listen series. As Idolator and Boing Boing and many others have since reported, also on Friday (and the timing of all of these events is very unclear for those who just got all these news stories in an RSS-feed dump), Danger Mouse and others decided to release the album as a blank CD-R with the full booklet and a label disclaiming “For Legal Reasons, enclosed CD-R contains no music. Use it as you will.” In subtext, it sounds as if Danger Mouse is going to rely on the same filesharing architecture which made him world famous in 2003 to help spread his latest project.

It’s hard to comment on this until details about the legal issues around this album come to light. For what it’s worth, my guess is that it has to do with appearance rights for one of the guest artists. Often times as part of a larger record deal an artist will promise not to appear on other record labels’ albums without prior approval from their record affiliate. This is only a guess, however, and we’ll have to see in time what is the actual problem at issue here. Certainly the blank CD-R move is a pretty clever stunt, and probably helps drum up some publicity for the album, but an album with this lineup needs no large publicity push and Danger Mouse doesn’t exactly need to do anything to prove his anti-RIAA stance and thus earn fans in the college age, tech-driven demographic. However, equally apparent is the fact that people are not going to come out in equal volumes to buy an album containg a blank CD. It’s hard to remember sometimes, but there are many millions of music consumers out there that do not follow the web and its affairs as thoroughly as us, and without knowing the backstory behind this album they aren’t going to buy up the guy from Gnarls Barkley’s latest spinoff project unless the CD actually has the audio on it. Besides, unless this “legal issue” has to do with one’s exposure to further liability from a third party (e.g. EMI is preventing Danger Mouse from releasing this because EMI might then get sued by company X for whatever reason), all involved would probably be better off if they simply allowed the album to be relased. It seems as though those who seek to scrap the album have never heard the old expression about trying to unring a bell. At this point the album will never disappear, any damage is likely done, and whoever is holding this up likely has little to lose and everything to gain going forward.

The NPR stream is still live, and I encourage everybody to listen here. I’ve been listening while writing this, and I love it. Danger Mouse’s influence I clearly felt, and his signature presence does much to unearth the broody layers that have made Sparklehorse one of my favorite bands for years (Good Morning Spider is without a doubt a desert-island record for me). Hearing so many familiar voices, with songs tied together by Sparklehorse’s instrumention, is beautiful accompaniment for this quiet Sunday afternoon. Let’s hope the parties involved can work through whatever’s keeping this from having a full release and give this work the full commercial benefit it is most certainly due.

31 March 2009

Quick words on Sony v. Tenenbaum

Filed under: admin,RIAA-WTF,theroad — Andy @ 6:32 pm

The case of Sony BMG Music Entertainment v. Tenenbuam has been quite the legal curiosity for those of us who follow the RIAA lawsuits. There’s lots to learn from a case like this, not necessarily in terms of its professionalism or legal practice standards (those that know far more than me say this is a far cry from a hallmark case), but in the actions of its cast of characters. This lawsuit, one way or another, has brought in every legal mind in this field, on both sides of the issue. And everyone is writing about it. A lot. I suspect that this will be the case people will remember when the story of the RIAA lawsuits gets written up some years from now.

Charles Nesson, a Harvard Law Professor and longtime legal guru, now heads the case for the defense. He also founded and does extensive work at the Berkman Center at Harvard. I will be working this summer at Berkman. I know a lot of you have asked me to write on this case, and while that does a whole lot to inflate my ego, I think it would be better in light of my perceived conflict of interest to instead link out to others for now. I’ll bring you news as it comes forth, but for now I leave the discussion to others. Thanks for understanding.

Here’s who I have been reading to stay abreast of this:

- Recording Industry vs. The People (Ray Beckerman)
- Joel Fights Back
- eon (Charles Nesson)
- CyberOne
- Copyrights & Campaigns (Ben Sheffner)
- Excess Copyright (Howard Knopf)
- Twitter user CopyrightLaw (Michael Scott)
- Corante Copyfight blog (Alan Wexelblat)
- Slashdot YRO
- Groklaw

6 March 2009

RIAA Update: the lawsuits haven’t stopped

Filed under: followup,intellectual property,music,RIAA-WTF,seriesoftubes — Andy @ 9:21 am

Late last December I wrote about the supposed suspension of the RIAA’s mass-lawsuit campaign against filesharers, as reported by the Wall Street Journal. There I noted (care of Recording Industry vs. The People) that several new lawsuits were filed immediately after the announcement. At the time this fact was dismissed by the Association, claiming these complaints were already headed down the pipeline, and therefore not new in the way they meant when speaking with the WSJ. I met that argument with a healthy dose of skepticism, and today it seems my doubts were validated.

It is two and a half months later, and RIAAv.TP reports that at least one new case has appeared in courts as recently as two days ago. Techdirt is jumping on this claiming the WSJ announcement was nothing but a “huge PR campaign.” Could it be that the ISP-filtering tactic proposed by the RIAA was so soundly rejected by the tel-coms that they decided to revert back? Was this all PR? Didn’t we already establish the lawsuits were a gigantic waste of money?

I’m trying very hard to give the RIAA the benefit of my (substantial) doubts, but it’s getting increasingly harder to do so.

25 December 2008

The RIAA has stopped filing lawsuits… only they haven’t quite, and they’re not going to stop just yet, either.

Filed under: followup,music,RIAA-WTF — Andy @ 12:28 pm

Perhaps the biggest splash I missed while dealing with the chronic power failures out in central MA would be the surprise announcement from the Wall Street Journal that the RIAA will stop their 5-year campaign of filesharing lawsuits, opting instead to team up with ISPs to set up some sort of warning, “three-strike” system.

WSJ:

After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry is set to drop its legal assault as it searches for more effective ways to combat online music piracy. […]

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take. […]

The new approach dispenses with one of the most contentious parts of the lawsuit strategy, which involved filing lawsuits requiring ISPs to disclose the identities of file sharers. Under the new strategy, the RIAA would forward its emails to the ISPs without demanding to know the customers’ identity.

Though the industry group is reserving the right to sue people who are particularly heavy file sharers, or who ignore repeated warnings, it expects its lawsuits to decline to a trickle. The group stopped filing mass lawsuits early this fall.

It isn’t clear that the new strategy will work or how effective the collaboration with the ISPs will be. “There isn’t any silver-bullet anti-piracy solution,” said Eric Garland, president of BigChampagne LLC, a piracy consulting company.

Mr. Garland said he likes the idea of a solution that works more with consumers. In the years since the RIAA began its mass legal action, “It has become abundantly clear that the carrot is far more important than the stick.” Indeed, many in the music industry felt the lawsuits had outlived their usefulness.

Be sure to also read the Wired piece interviewing Cara Duckworth (cue a bazillion Mighty Ducks references) of the RIAA. She lays some initial fears to rest: namely, that this ISP/RIAA operation would not be filtering, but some sort of warning system. Naturally, that system is ripe with its own problems – how are we to appeal or challenge the accusations of the RIAA? Will the user in question be party to the messaging between the RIAA and ISP?  I’m reminded of the YouTomb operation coming out of a bunch of brilliant kids at MIT, where they track the takedown notices coming from YouTube in an effort to check their validity. I wrote a bit more about this operation last May after the Berkman@10 conference. Their problem is the same that users will see in this RI(SP)AA solution – where is their day in court to challenge these warnings?

But, we may not even be able to trust Ms. Duckworth’s statements as far as to believe their attack plan won’t involve Internet filtering (which is also a terrifying idea, and if you don’t believe me take a read at Lessig’s Code). There’s another statement she made that warrants some serious scrutiny. According to her, the RIAA not only plans to phase out the lawsuits, but they haven’t filed a new lawsuit in months. Well, Ray Beckerman over at Recording Industry vs. the People had a little bit of fun disproving that. Here are a handful of lawsuits filed last week:

(more…)

7 December 2008

Wow, RIAA. Just wow.

Filed under: gdublaw,missingthepoint,RIAA-WTF,thecommonlaw — Andy @ 11:06 pm

(“…they took it away / away from me…” Thanks, mecredis)

The RIAA’s lawsuits are now facing quite sincere and legitimate challenges from four excellent law schools (Harvard, Franklin Pierce, The University of San Francisco School of Law, and UMaine), and public opinion against the actions grows larger daily. For the RIAA, could it get any worse these days?

Why, yes. They could continue the lawsuits, and add “recovering transplant patients” to the list of grandmothers, infants (not under-18 “legal infants,” but still-in-diapers infants), and single parents they’ve sued for filesharing.

(more…)

30 November 2008

Sunday Morning Reading: Charles Nesson in Mass High Tech

Filed under: copyleft,followup,music,RIAA-WTF,stickittotheman — Andy @ 11:20 am

(from Geek&Poke)

As part of the ever-increasing attention being given to the RIAA filesharing case of Sony BMG Music v. Tenenbaum (see the witness list post from a few days ago), Harvard Law Professor Charles Nesson wrote a great, quick essay in the Mass High Tech journal, explaining his reasoning for having the case dismissed.

Nesson:

Joel Tenenbaum, who was a teenager at the time of the alleged copyright infringements, is being sued for downloading seven songs seven years ago from KaZaA, a file-sharing network composed of millions of his peers doing likewise. The RIAA will seek to prove that Joel downloaded those songs “willfully” and must therefore pay up to $1,050,000. Joel has already been interrogated by the RIAA for nine hours in a forced deposition; been made to endure the depositions of his mother, father, sister and friends; and may be compelled to submit his current computer, which is not even the machine on which the original copyright infringement was alleged to occur, to a RIAA-retained third party for complete imaging and forensic analysis. All this for the alleged download of seven songs.

We believe, and are asserting legally by counterclaim, that the RIAA litigation campaign against Joel and the millions of his generation like him is an unconstitutional abuse of law.

The center of their argument is quite plain and clear: the RIAA is abusing the statutory penalties in copyright law in order to call each and every download a “willful copyright infringement” worthy of the maximum fine: $150,000. That is what brings Nesson to the >$1M figure above.

The problem with this tactic is multifold; for one, this is nowhere near the actual damage suffered by an artist or the record labels. In fact, very few artists could claim a figure near that for the aggregate of losses suffered by the act filesharing. What’s more, as an oft-cited four-year-old NYT article puts it, you cannot draw a 1:1 ratio between downloaded files and lost sales. Not only are people downloading tracks they would never buy, thanks to the lowered burdens of downloading, many have suggested they will use peer-to-peer as a “try before you buy” method to dictate their musical purchases (though fewer actually practice this method). Given the fact that almost every lawsuit served by the RIAA is followed up with a settlement letter for less than one hundreth of the claimed damages (an offered settlement of $3000 for a claim of over $1,000,000 is frequently reported), it seems almost painfully obvious that the RIAA is using the legal system to terrify college students into having their parents pay up a few thousand dollars, probably a drop in the bucket compared to their kid’s tuition, to make this potential legal hassle go away. The RIAA is preying on the unique nature of college students – being in a new environment already very stress-inducing, having access to high speed Internet for the first time, having slightly more discretionary income than they will have again for years, and dealing with the transition from childhood to adulthood – to milk out money offsetting declining CD sales. They have done this thousands of times, and will likely do it again, and against that Nesson and his crew seem to be directing the brunt of their attack.

Underneath this argument is a much larger policy issue, however. If the purpose of copyright is to encourage creative contributions in the arts and sciences, and the penalties are purportedly in place to give creators protection from abuses of their works, how can one find economic incentive in filesharing lawsuits given the fact that, in the overwhelming majority of professional music contracts, musicians see few royalties from CD sales? Typically, when you sign into a major label deal, you give up all royalty interest in the sound recordings (even if you recorded it yourself without the label’s help), and sometimes the label even takes a sizable stake in the underlying composition, even though they did not write the song (this is done with a controlled composition clause). If the song is a cover, the artist would see none of this money either way. Shadowing above all of this is the terrible advance/recoup method of funding recordings, which makes it so even Gold Record artists are not seeing any money from CD sales.

Artists are okay with this, or at least they do not put up so much of a fight as to deny this Faustian bargain, because of the other perks one gets as a major artist. Far more lucrative than the remaing royalties from sales, there are synchronization licenses with films, TV, commercials, and other deals, not to mention the somehow-still-lucrative world of live performance. One area an artist normally controls most or all of his or her royalties around, interestingly enough, is merchandise, so while buying the CD of an artist helps him or her marginally, buying the T-shirt actually helps rather substantially. So, with that in mind, how can we say that giving statutory damages to filesharing activity helps the artist create, when an artist would see pennies of that revenue were the song purchased or downloaded legally? It’s also worth nothing that, while to date the RIAA has collected thousands upon thousands of dollars from these filesharing lawsuits, not one artist is reporting any money paid out from this pool.

I’ll try and give updates to this story as best as I can, but I have my own legal quagmire (exams) to deal with at the moment. For more head over to Ray Beckerman’s Recording Industry vs. The People.

22 November 2008

Big Guns coming out for Sony BMG Music v. Tenenbaum

Filed under: berkman@10,copyleft,RIAA-WTF,thecommonlaw — Andy @ 5:30 pm

I’ve been meaning to write about the effort put forth by veritable law legend Charlie Nesson and his Harvard Law Evidence class to quash the subpoenas brought by the RIAA in one of the Boston-centered filesharing lawsuits that still fill the courts today. Sometime over the break I hope to put forth his argument in clear terms here, as I find it very compelling, but sadly again work keeps my attention on other fields of law for the time being.

For now, aside from offering you a very interesting and somewhat voyeristic exchange between counsels posted up on eon (the blog of Nesson’s web avitar), I can also provide you with part of the defense witness list put together in the case of Sony BMG Music v. Tenenbaum. The list includes:

- John Perry Barlow – lyricist for the Grateful Dead, founding member of the Electronic Frontier Foundation.

- Prof. Johan Pouwelse – major P2P expert, and repeated expert witness in filesharing trials

- Prof. Lawrence Lessig – see my post from this morning

- Matthew Oppenheim – former senior VP of the RIAA, prosecuting attorney in Arista v. Does 1-19 (D.C. Cir.)

- Prof. Terry Fisher – Berkman Center director, author of music industry required reading Promises to Keep.

- Prof. Wendy Seltzer – Berkman Fellow, ICANN representative, and founder of Chilling Effects

- Prof. John Palfrey – Executive Director of the Berkman Center, author, and principal investigator for the OpenNet Initiative

- Prof. Jonathan Zittrain – Berkman Co-Founder, author, co-counsel for plaintiffs (with Lessig) in Eldred v. Ashcroft.

- Andrew Grant – former antipiracy specialist at Macrovision

The last time I saw these names in one room was the Berkman@10 conference. This is virtually every big gun in the copyright reformist world (save maybe Cory Doctorow, Jessica Litman, and a few others). This will be a landmark case for the RIAA lawsuits. I’ll be keeping an eye out for the trial dates on this one (assuming, of course, the case withstands Nesson’s attacks).

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