17,000 Downloads Does Not Equal 17,000 Lost Sales 398
Andrew_Rens writes "Ars Technica has a story on a ruling by a US District Judge who rejects claims by the RIAA that the number of infringing downloads amounts to proof of the same number of lost sales. The judge ruled that 'although it is true that someone who copies a digital version of a sound recording has little incentive to purchase the recording through legitimate means, it does not necessarily follow that the downloader would have made a legitimate purchase if the recording had not been available for free.' The ruling concerns the use of the criminal courts to recover alleged losses for downloading through a process known as restitution. The judgement does not directly change how damages are calculated in civil cases."
Comment removed (Score:4, Insightful)
And do they factor in (Score:4, Insightful)
Common sense prevails! (Score:5, Insightful)
Re:Exactly right! (Score:3, Insightful)
Exactly. Most of the music I have I have purchased as CDs in the past or bought as single tracks online. The music I have copied is music I never would've bought for myself. Those aren't lost sales. They were never going to be sales in the first place. I only have it because it cost me nothing so it didn't hurt to check it out. I still buy music that I am seriously interested in.
Their arguement is like someone discovering how to copy a Rolls Royce for free. Suddenly all the millions of Rolls Royces on the road being driven by people of modest means represent lost sales?
Living proof (Score:5, Insightful)
There's one band in particular whose entire discography I downloaded. I couldn't find anyone who has the CDs and the previews on Amazon were insufficient. Within a month, I liked it so much that I wanted to have higher-quality, lossless rips and to support the band, so I bought every album the band, and have bought every one since.
I know I'm certainly in the minority in my desire to support the band for its efforts, but there are more people out there like me.
Economics 101... (Score:2, Insightful)
Demand at $0 < Demand at $14
And they get paid to figure this out?
Does not affect civil cases!! (Score:3, Insightful)
More judges like these plz (Score:3, Insightful)
It does not logically follow, by any stretch of the imagination, that a downloaded song is a lost sale. In fact, it may be more logical to conclude that a downloaded song is a gained sale. Maybe not in the sense that I ran to iTunes to download it for $1, but maybe if I liked the song, I went to a concert, or bought a hoodie... both of which put more money in the pocket of the actual artist than the record label.
Record labels eat ~95% of the money taken in by music sales. This means that "supporting the artist by buying their music" is simply wrong. The artist sees almost none of the money from direct music sales. People, if you want to support your favorite artists, buy a shirt or go see a show. They see almost 100% of that money back, minus the cost of the roadie to see it at a show or the venue they held the show at.
Lost sale != total loss (Score:4, Insightful)
If you had read the ruling, you'd have noticed that this judge seems to be smart enough to realize that, even assuming a sale was lost, the amount the victims lost is not the same as the sale price.
The price of sale is equal to cost + profit. If a CD costing $10 is shoplifted instead of sold, the seller loses $10. If a CD is downloaded illegally, the seller may claim he lost a sale, but he cannot claim he lost the CD he had to produce and deliver to the store at a price. He still has the CD to sell, at a profit, to another customer.
I wonder what the reaction would be if a judge told the RIAA this: "OK, you lost a million sales. You can get $10 million in restitution, under the condition that you manufacture and deliver one million CDs to the defendant, who is free to sell those CDs at whatever price he can get".
Re:Exactly right! (Score:1, Insightful)
Are you one of those trolls trying to imply that black people cannot help themselves but steal?
Or are you simply mistaken that something which comes to pass as a result of your decision to download stuff for free is the same as being a slave?
Your forefathers are turning in their graves.
Re:1. perform a song (Score:3, Insightful)
> probably for books and movies too
I don't think this will apply to books. How many book-related 'special fan material' do you have? To how many book concerts did you go this year?
exagerated claims lead to bigger court wins $$$$$$ (Score:4, Insightful)
You guys are kidding yourselves if you think that one pirated song equals one lost sales.
I do not think they're kidding themselves; I think they're deliberately fooling others, for fun and profit.
Re:but how many sales? (Score:3, Insightful)
Of course there are lost sales.
For everyone here claiming they run out and buy the CD when they download something they like, there's going to be hundreds of people that ask themselves why they should buy it when they already have it.
Even if everyone who liked the song bought the CD (or purchased it in some other format), that still doesn't give people the right to infringe on other people's copyrights... if a music company is choking themselves of sales because they won't let you sample the content, that's their decision to make.
Re:Exactly right! (Score:5, Insightful)
See, I think you are part of the problem in this. On one hand, you say the RIAA doesn't deserve money from you. On the other, you illegally download their creations, sending a clear message that you have some demand for what they offer. If you want the RIAA to go away, just ignore them, and everything they create. While people download their stuff, they can justifiably whine about people ripping them off (because even though 17,000 downloads != 17,000 lost sales, it's also true that 17,000 downloads != 0 lost sales).
Just my thoughts (Score:1, Insightful)
I wonder how many court cases and lawyers it will require before the RIAA and the other producers realize that they can't stop online piracy. Why can't they just realize that they would make more money by releasing the album themselves either cheaply or free while still gaining income from advertisements. I'm very sure the majority of people won't download illegally if it was almost as cheap to download it legally, such as $2 an album or something. This is one of the only viable ways I can see to combat illegal file sharers without taking almost everyone that even looks at an illegal album to court.
Re:Exactly right! (Score:2, Insightful)
By the law saying you're not allowed to share that music?
Re:Exactly right! (Score:3, Insightful)
It's ludicrous to take the statement that 17,000 downloads doesn't equal 17,000 lost sales (well, duh!) and then swing to the other extreme and use it as an argument to say that piracy isn't causing lost sales.
Without any evidence to show that the net result is lost sales, you can't say that that's the case. The error in your assertion above is that you assume that the range we're looking at starts at "zero lost sales" and goes to "X number of lost sales, where X == number of MP3's in someone's download directory". Given that all we have to go on is anecdotal evidence, and that a non-zero number of anecdotes demonstrate that some downloads result in a sale that otherwise would not have happened, we are looking at a range of "X number of lost sales" to "X number of additional sales". Any claim that the number is known to be positive or negative must be accompanied by evidence from a controlled study. The true nature of reality is determined by scientific principles, not nebulous claims prefaced by "everybody knows..."
Re:1. perform a song (Score:1, Insightful)
The so-called Nine Inch Nails, and Radiohead way..
Seems to work so far ;)
again, it must be said that sales != revenue (Score:3, Insightful)
my point is that even if I downloaded songs and 'liked the artist' enough to buy more, I am still more likely to buy USED cd's on amazon than new ones.
first, I control the mp3 quality and encode process (or even flac). second, I know that NONE of my money is going to the riaa or mpaa for movies.
this is the elephant in the room that no one talks about: used cd and dvd sales NEVER 'help' the artist yet they are 100% legal.
we have to get away from the whole 'if its not good for the artist, its not good for anyone' thinking. its just wrong. downloading doesn't hurt artists anymore than used cd's hurt them. or help them. the x-axis doesn't "help" the y-axis either - they are different things that have no inherent correlation.
until 'first sale doctrine' is updated, I refuse to believe the industry in ANYTHING they say about sales, right/wrong or how things 'should' be in some new model they are hoping for.
as long as I can buy used cd's - I will continue to ignore the industry and its crying about 'fairness'.
Re:Economics 101... (Score:3, Insightful)
I think all the attention and lawsuits have pushed CDs out of the "commodity" range and into the "luxury" range
Advancing technology does that all the time, too.
For example, when the horse-and-buggy were the common means of transportation, horses were a commodity. With the invention of the automobile, horses became a luxury.
Re:Exactly right! (Score:5, Insightful)
You'll never get a large enough group of people to boycott
Then how do you explain their abysmal sales? Piracy? No, the years-long established boycott is working, but they're not blaming me and our boycott, they're blaming you and your piracy.
Stop downloading that crap. Download their competetion, the indies, instead. Most indies WANT you to download.
Re:Exactly right! (Score:5, Insightful)
From Lawrence Lessig's Free Culture [sslug.dk] (I've abridged the quote drastically)
Type B (try before you buy) can do nothing but increase sales, and every study not financed by the recording industry has concluded that "pirates" spend far mor of their money on music than non-pirates.
Lessig's book is available online under a GPL license, as well as in bookstores. Oddly, being able to legally "pirate" it hasn't kept it out of the bookstores, despite the atti-pirates' bleating that if you can get it for free you won't pay for it.
Only thieves have the mindset "if I can get it for free I won't buy it". Most people have scruples. Unfortunately the people in the RIAA labels don't.
Re:Exactly right! (Score:2, Insightful)
Hobbit has committed the logical fallacy of using a strawman argument.
At no time did I say anything about my black brothers being inferior.
What I said was that we were slaves before, but we will not be slaves again, not to the government and certainly not to an extortionist CEO running RIAA. "From time to time, the Tree of Liberty must be watered with the blood of Patriots and Tyrants." - Democratic Party founder Thomas Jefferson. Penalizing me or my countrymen 1-to-2 dollars for every song we download is fair. Penalizing $150,000 for every song is tyranny and extortion. If they target me with that fine, I will not bow down, I will not rest, I will not stop until the Tree of Liberty has been watered.
Re:Exactly right! (Score:4, Insightful)
When I told you that I perceived you as part of the problem, I actually meant, a part of the problem, not just some external fuss that doesn't affect you. It's a problem for you too, and a problem for people you know. In your efforts to hurt the RIAA, you may be only hurting them temporarily, and helping them gain a stronger stranglehold on policing your communications, and invading your privacy. Your actions may leave them as an unprofitable business with significant, almost universal demand, which makes them a prime candidate for government subsidies. Your actions allow (and encourage) others to be part of the same problem, fuelling and exacerbating it.
If you were to boycott them entirely, and spread the message as far as you can, you might actually make a dent in downloads and sales. Then again, maybe people actually do want the RIAA's music, and there's not much you can do about it. Whatever it is, what you are doing isn't helping anyone.
Re:Exactly right! (Score:3, Insightful)
Not a great argument...
I lost my first record collection, just shy of 1,000, when it failed to materialize along with the rest of the second crate of household belongings the U.S. military attempted to deliver from my base in England to my home in Maine, back in 1975. If you happen to know where it is, I'd go get it. Really.
My second collection, well over 1,500, I gave up when it was just not worth it to go back in that house. It just wasn't.
My current CD collection is around 3,000 and is growing very slowly. I tend to buy artist collections, and I'm saddled with probably 3 copies of every classic rock band's releases, between the initial releases, boxed sets, remasters, UK releases, cut-outs, LP singles, etc. It's all on a server now, the discs are packed away. Backing up the collection and changing servers now and then is in fact easier than boxes, cases, stands, all the hassle of physical media.
But would I buy most of the stuff I have downloaded over the years? Yes and no. I bought FSOL-ISDN after hearing it on an old radio show, and then have bought everything they've done and more. But no amount of downloading Britney Spears ever would have gotten me to *buy* a single track...
FM Radio at one time was the original peer-to-peer network. WABE in Atlanta used to play whole sides of albums late at night, usually new releases. I heard Dark Side of the Moon for the first time that way, and they prefaced the presentation with warnings, a nice announcer's "And now...", and a full 3 seconds of silence. My Revox reel-to-reel was cued on time. I listened to that tape for two months before I could buy the album. Napster just made it so much more convenient.
But large collections were the norm in vinyl days. My old DJ buddy had a collection of over 25,000 LPs from the disco era, most promos and cut-outs from the labels. He was a professional. Over 25,000 means closer to 45,000 we think. It was donated after his death to a NYC DJ, when his mother asked if any of us wanted 'this crap'. She had a container coming over to throw out his stuff. Not just the records, but turntables, videos (U-Matic mostly!), clothes of course. We had the makings of a terrific disco museum, and it went here and there. I wish I had those SL-1200MkIIs today.
The music industry seems to forget... (Score:1, Insightful)
that even without money, there will always be music.
Capitalism and music aren't dependent on one another. Each can exist without the other, though many times they can help each other.
No matter how much the RIAA and similar interests would like to suggest otherwise... money did not make music.
Re:again, it must be said that sales != revenue (Score:3, Insightful)
this is the elephant in the room that no one talks about: used cd and dvd sales NEVER 'help' the artist yet they are 100% legal.
You can claim the same thing about used cars. How can buying a used Ford help Ford? Well here is how: a good used market helps keep the price of new good up. New goods (cars, CDs, Houses,.. have more value when the buys knows there s potential resale value. With CD's this effect is small but I think it's real. Small with CD's because so few are re-sold, bigger with cars and building because most of these are re-sold.
Re:Exactly right! (Score:3, Insightful)
I find it interesting that you blame the CEO of a company when your justice system is handing out the verdicts. The fact that the RIAA can get away with these claims says more about your country than the RIAA's CEO. Are you Liberty-Tree-watering patriots really this blind? A penalty of $150.000 per song is a symptom, not the disease.
But hey, why listen to a bloody foreigner. What do I know?
Re:Exactly right! (Score:3, Insightful)
Nothin' particularly much to add to the discussion, but I couldn't resist replying to mention of the SL-1200MKII's. I worked at a radio station in college, and those of course were the standard. I can still feel that big rectangular button and visualize the start-up time of a cued-up LP sitting on one.
In all this discussion of downloading and the RIAA, I very rarely see any mention of the kind of downloading I do - pretty much exclusively NON-commercially-released live recordings. I'm closing in on 12,000 shows (so, surely 100,000+ songs/tracks, though many many duplicates of songs across different performances), and *almost* not a damn one of 'em has ever been available for sale legitimately.
(A *small* handful are out of print commercial releases - ten or fewer, an example being not even strictly an album, but the apparently-never-to-be-released-on-DVD movie of Tom Waits' Big Time.) *Many* of the live recordings are of bands who actively encourage trading of their live recordings.
Do I have any confidence that, if the RIAA's hired guns were to come across my collection of DVD-Rs/hard drives, that they'd bother to make the distinction? Nope.
Re:Exactly right! (Score:4, Insightful)
Then how do you explain their abysmal sales? Piracy? No, the years-long established boycott is working, but they're not blaming me and our boycott, they're blaming you and your piracy.
Their sales are explained in a couple of ways. First and foremost, their sales were bouyed for a few years after the advent of CDs (the 90's) by people replacing vinyl with CDs. I gave them a lot of money to do just that. Then I stopped. Second, their current music is substandard by any measure - they are so desperate to just use a formula that there's little risk-taking nowadays.
Then there's digital downloads. They could have entered this game early and easily made the move from CDs to downloads. Instead, Steve Jobs dragged them kicking and screaming into it, and it still took him, what, 7 or 8 years to finally get them to give up on DRM? Their cluelessness has definitely hurt them.
Finally, their sales aren't off that much. They're down 10-20% from the high. No big surprise given the above.
I remember during the last recession (circa 2002) when the MPAA was trying to push through their "superdmca" bill in the states, and I sat across from their slimy lawyer Geoff Beauchamps in a meeting with our state representative. He lamented that the record industry's sales were off by 10%. I asked him how they'd kept their sales up that well in a recession, as mine were off by 50% (I wasn't kidding). Music is non-essential, people are going to buy bread before they buy a CD.
Anyway, they've spent years digging the hole that they're in, and most of what they're doing now is looking for a better shovel.
Re:Exactly right! (Score:3, Insightful)
Two thoughts: (1 Most of the People's courts and judges are doing the right thing - denying RIAA's claims. Even the one verdict RIAA managed to win is about to be overturned, so I'm please with my government actions (so far).
(2) RIAA has managed to scam people out of their money with threatening letters - "give us $5000 or else". The CEO is acting like a tyrant. Or a mafioso. Either word would fit.
Re:Exactly right! (Score:1, Insightful)
Your actions may leave them as an unprofitable business with significant, almost universal demand, which makes them a prime candidate for government subsidies.
NO NO NO WRONG!
There is a universal demand for MUSIC.
There is no demand for an over bloated middle management distributor that only exists to syphon off as much money as they can from other peoples works.
The RIAA has no demand, they positioned them selves to be a distributor and promoter of music, and before the Internet that was actually useful.
Now its not. you instantly reach a global level of exposure on the internet, we don't need a corporation to advertise music for us anymore.
There is so little demand for the RIAA even the artists don't want them, ask your self, whats the first thing an artist does after making a reasonable amount of money? (assuming they can).
They form their own label, because the RIAA labels suck that much, even the people they work for hate them.
You have confused the distributor with the source, an assumption the RIAA wants you to have. They want you to think the music will die if they do, we know thats not the case.
Re:Exactly right! (Score:3, Insightful)
Wouldn't the Bar Association have strong words with the RIAA lawyers if the lawyers knowingly left out or misrepresented relevant case law?
If not, then what's the purpose of the Bar Association if it isn't to enforce the practice of law?
Synthetic Diamonds as an analogy? (Score:2, Insightful)
I think a potential real world example of this happening is with synthetic [wikipedia.org] (i.e. lab-made) diamonds. Companies like De Beers are scared shitless because they can no longer create a situation of artificial scarcity and charge massive prices for their diamonds, since they're relatively easy to make in a lab now via CVD.
I was at a conference recently that had a trade show going on and there was a company there selling relatively small lab-made diamonds for cheap (a couple hundred bucks). Now these lab-made diamonds are supposedly very high quality (I've heard that an expert can spot synthetic diamonds specifically because they're flawless, in a way that no natural diamond would ever be). Just for the sake of comparison I wrote down the specs for a small, high-grade diamond they had at the show for something like $300 and asked in a diamond store how much a stone with those characteristics would generally go for, and the answer was in the $3000 ballpark.
I can afford a $300 diamond, but I can't afford a $3000 diamond (at the moment). So in my case buying a $300 synthetic diamond would not be a lost sale for De Beers. I'm sure they'd feel differently though.
$150,000 per song my.... (Score:4, Insightful)
"Penalizing me or my countrymen 1-to-2 dollars for every song we download is fair."
Excuse me? When is a penalty for performing an illegal act supposed to be "fair"? First, charging the same price as a legitimate download definitely isn't fair, and actually is an INCENTIVE to steal.
What if you were caught attempting to steal a CD and they only charged you the price of the disk? Everyone would try to steal. Best case, you get away with it, and worst case, you pay no more than if you had paid the legitimate price. Where I live the fine for littering and dumping trash is $1,000. Is that "fair"? Don't know, but what I do know is that you don't see many people throwing trash out the windows of their cars. The risk simply isn't worth it.
And what's with the "tree of liberty" BS? Attempting to equate stealing a purely discretionary item that's available from plenty of legitimate sources with patriotism is simply laughable from one side, and an insult to those who died fighting for our liberty on the other.
Finally, try to RTFA for content. The article does NOT say anything about "Penalizing $150,000 for every [song] song..."
FTFA: "For example, the RIAA said that 183 albums were transferred through Dove's server 17,281 times, then multiplied that by the wholesale price of a digital album in 2005 ($7.22) to conclude that its member companies were owed almost $124,769 in restitution..."
That's $124K TOTAL, and not $150K PER SONG. (And charging a "fair" price per album, BTW.) Making up your own numbers doesn't help your argument, as it makes people wonder just what else you're lying about...
Re:Exactly right! (Score:4, Insightful)
I thought I had spelled it out enough for you, but evidently not.
When you are a slave, no matter what you do, you cannot gain your freedom.
When you face potential damages for downloading copyrighted songs that you don't want to pay for, you have the choice of not downloading them.
Do you understand the difference between the two situations? Then you understand that your forefathers would be horrified at your cheapening their experience by likening it to your own position.
The straw man is yours: I never said that you said anything about your black brothers being inferior. You said that the position you would find yourself in if you downloaded music illegally (facing damages) is like slavery (i.e., unavoidable). The implication is clear: you have no choice but to download music without the permission of the copyright holder. The law says that this is stealing, so you imply that you have no choice but to steal.
Re:Exactly right! (Score:3, Insightful)
Re:Exactly right! (Score:2, Insightful)
Re:$150,000 per song my.... (Score:1, Insightful)
Excuse me? When is a penalty for performing an illegal act supposed to be "fair"? First, charging the same price as a legitimate download definitely isn't fair, and actually is an INCENTIVE to steal.
What if you were caught attempting to steal a CD and they only charged you the price of the disk? Everyone would try to steal. Best case, you get away with it, and worst case, you pay no more than if you had paid the legitimate price. Where I live the fine for littering and dumping trash is $1,000. Is that "fair"? Don't know, but what I do know is that you don't see many people throwing trash out the windows of their cars. The risk simply isn't worth it.
Well then it's simple. Every crime is punishable by death. Then the risk is definitely not worth the crime every single time. Right? Fairness unnecessary.