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Motley Fool Says RIAA Hitting a Brick Wall
Posted by
kdawson
on Fri Sep 28, 2007 08:49 AM
from the winding-down dept.
from the winding-down dept.
NewYorkCountryLawyer writes "The Motley Fool business site says that the RIAA's litigation campaign is in the end game. Monday it reported that 'the music industry's lawsuit crusade against defenseless college students and housewives appears to have hit the skids,' predicting that the RIAA's tactics are 'all about to change.' Today the Fool confirms that 'the change is happening in Internet time, which is somewhere between "instantly" and "yesterday,"' noting that the RIAA's abandonment of its 'making available' theory shows that the end is near. And this is before the RIAA faces its first jury trial, set to begin Oct. 2 in Duluth."
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Why did they make these mistakes? (Score:4, Interesting)
Couldn't they have found a few people who were guilty, guilty, guilty and taken them all the way, and nailed them to a tree? Wouldn't it have been a better strategy to just drop any suit if the defendent was in the least bit sympathetic?
Scare tactic (Score:3, Interesting)
The idea is "If they will sue a grandmother without a computer AND is blind... what the hell would they do to ME??"
Re:Scare tactic (Score:5, Insightful)
More likely, they hired a large/lazy law firm that just sued who they were told, and they didn't see all the facts about the defendant until the first court date. At that point, you have to follow through though, or everyone else will also claim that don't own a computer or got a virus on it or whatever the defense was. Also remember that the lawfirm doesn't get paid to actually win, they get paid just to sue, so even though they know they have a bogus case, if the RIAA wants them there they will sit through it and get paid for it. I can't really say that's unreasonable for them since the RIAA is just handing them money though, I think the real issue here is the RIAA's inability to see that the whole idea is a bad business move.
Re:Scare tactic (Score:5, Interesting)
Re: (Score:3, Insightful)
Re:Scare tactic (Score:5, Insightful)
Re:Scare tactic (Score:5, Interesting)
If they were asking for $5 or $10 a song - and being more careful about who they sued - sure there'd still be some people claiming they should never ever sue anyone, but I think many people would be at least a little more sympathetic. At least I'd only think they were being silly and self-destructive for clinging to an outdated business model, rather than seeing them as extortionists and fear-mongerers. And given that they're settling for $3000, you can't tell me that they actually need the whole $750/song for legal fees, etc. They use it as a scare tactic, plain and simple, so they can get their $3k with no fuss and muss.
Re:Scare tactic (Score:5, Informative)
Re:Scare tactic (Score:4, Insightful)
I ran an electronics service business out of a white ford van for a while. One night a drunk driver totaled it, and was actually caught. I was legally able to sue him for 3x damages, because he committed DUI and Hit and Run, both criminal acts, and so punitive damages were allowed on the civil side. (I ended up getting almost exactly what it cost me to actually replace everything, but that was more than what I could really prove in court he had destroyed, and replacement costs on all the ruined equipment were higher than the original costs, so 'punitive' damage rules helped get actual justice).
The RIAA is using a law that gives them a 5x damages rule (it multiplies a 30,000$ damage cap to 150,000$ if a test is met - that's 5x). The only have to prove the violation was 'willful' to get that multiple. The standard to prove willfullness is much, much easier than the standard I needed to justify 3x damages.
This is a matter of fundamental equality. Even if I was sure the people running torrents and such are doing severe damage to the RIAA members, even if it is every bit as costly as the RIAA claims, getting special laws passed that make everyone else effectively second tier in court is a damage to the whole legal system. I can't support the RIAA's actions unless they are subject to the same rules as the rest of us. I'm not sure how anyone else can.
Re:Scare tactic (Score:5, Interesting)
There are A LOT of arguments out there against copyright and patents, ranging from the economic to the historical, from the social to the political, and dismissing all of this on the basis that "copying is obviously wrong" amounts to nothing more than a very crude oversimplification.
If you want a simple example, here's the historical one. Since the beginning of recorded history up until the first half of the Modern Age, the copying was considered by EVERYONE, from writers to actors, from musicians to singers, from inventors to manufacturers, as an obvious right. Libraries, for instance, existed for thousands of years, and beyond allowing you to take a book and read it, they all had full teams of scribes who would copy any work a customer wanted, or, if he so wished, would allow him to do the copy himself. Everyone interested in any intellectual production did this, and everyone felt it was the natural way of things.
It was only half-way through the Modern Age, and at first only in certain regions on Europe, that thing started to change. It took centuries, literally, for our system of "copying rights" to develop and turn in 180 degrees how we handled the subject. And while many industries organized and flourished around and from this system, it never, ever, ceased feeling unnatural to those taking contact with it for the first time.
What the Internet, and the "pirates" in it, are doing, thus, isn't so much contrary to the way things ought to be, but quite the opposite, a return to way things always were. A way that was artificially twisted 400 or so years ago, but is now being slowly and painfully put straight again. In this matter, they're surely a bunch of very conservative old-timers as one rarely sees.
If this is the case, how can they be "wrong"? They're "wrong" only from the very limited perspective of a limited subset of modernity and most of the contemporaneity. From the perspective of the (25 times longer) Ancient and Medieval worlds, their actions are pure common sense.
If they win, and they will, the Copyright Age will be seen as nothing more than a very small period of time sandwiched between the two huge Copyrightless Ages: the one that existed before, and the one that is starting right now.
The faster the "progressive" copyright-defenders accept this, the better. For everyone.
Re: (Score:3, Insightful)
I think you were a strong propponent before you changed your views.
>400 years ago it was a non-trivial effort to copy a work, hence the team of scribes, and you, the copier, were responsible to bear the cost of transcription. Now it is
Re:Scare tactic (Score:4, Insightful)
The big premise here is the "work and get paid; don't work - don't get paid". Unfortunately, it is everyone's natural inclination to try to figure out how to "don't work and still get paid", which is why a lot of people really like copyright and patents, and why they'll fight tooth and nail to make terms longer and more in their favor, as opposed to letting it degenerate into what it was before we had copyright.
I still stand by my other post though, as even if we got everyone to agree that copying anything was okay - just like before we had copyright - I think you'd still find the majority saying "but you have to ensure that the author still gets credit " for all copies of their work. This is much easier to do today worldwide than it was 400 years ago; it was also much easier with the printing press than it was before the printing press for smaller regions (e.g. localities, countries, etc.).
And, as I pointed out in my other post - this is essentially what Open Source Licenses basically seek out to do. No matter how they differ in details of distribution, modification, etc - they all require attribution to the original author remains intact.
Re:Scare tactic (Score:4, Informative)
It's NOT theft. Congress delimited it quite correctly. "Intellectual" property isn't property in the normal sense.
It's a State (as in the Union of States) granted Monopoly over the right to produce copies of the protected work(s).
In the case of Copyright, it's the right to produce copies or derivative works of a piece of music, literature, or
other art- and to distribute said copies or derivatives to other people.
In the case of Patent, it's the right to control the manufacture of a device that meets the description of the Patent
grant or to make derivatives thereof.
In the case of Trademark, it's the right to use a given phrase or illustration to represent your work, company, or product.
These are given for everything except Trademarks for a limited time to encourage the development of more works of
similar or different nature.
They're NOT property. They can't really be "stolen" in the sense of the definition of theft. When I steal (theft)
something, you are deprived of the use thereof of the item in question. With infringement, you are only
deprived of the right to control the replication or derivation of a protected work. You are not deprived of the
use thereof as you still HAVE the item in your possession.
You might be able to apply the theory that when I infringe on one of the aforementioned right grants from the
government, that I'm stealing money from the party being so infringed. Unfortunately, the law doesn't see that
this way. With the so-called "intellectual" property, there are no guarantees you will see a dime from it, no
matter what you might say to the contrary. All that has been done is that your rights to reproduce something has
been infringed upon, which isn't theft.
Please refrain from conflating the two- it's part of the problem everyone's having and it's the same type
of games the media companies and their representatives, RIAA, MPAA, etc. have been at. Right along with this
lawsuit BS that's hopefully coming to an end.
Re:Why did they make these mistakes? (Score:5, Interesting)
I dunno... cos they're idiots?
Actually, that's probably being slightly unfair to the RIAA (something that's quite hard to do). As the article pointed out, it's not enough to prove that people were making files available; they had to prove that the files were actually given away. They could, I suppose, download some of those files themselves, but that raises a few intriguing questions of its own; if the RIAA - which presumably acts on behalf of the Record Label who owns the copyright - downloads a song, does this constitute illegal sharing? After all, you're only giving it to its legal owner.
And if they get a third party to download that song, does that third party become complicit in the crime for downloading a song illegally?
Obviously IANAL or I'd know the answer to these questions.
Re:Why did they make these mistakes? (Score:4, Interesting)
Where can I donate... (Score:5, Funny)
Way to go RIAA (Score:5, Insightful)
Now, RIAA, after many years and millions of USD working on the issue, confirmed it's in fact perfectly safe for us to carry on.
Thank you, RIAA!
Re:Way to go RIAA (Score:4, Insightful)
I have friends in bands, with CDs, none of who would be caught dead with an RIAA label contract. The biggest fools are those foolish enough to sign with a major label. See Courtney Love Does The Math [salon.com], among other articles, none of which paint a very rosy picture of the monsters who run the labels.
These guys, like every other artist, WANT their music to be heard. They will be more than happy [kuro5hin.org] to let you serve MP3s from eDonkey or Kazaa. P2P and internet radio are all the indies have.
Meanwhile, the RIAA lies about Piracy [kuro5hin.org], when in fact if you want far better quality copies of each and every top 40 song there is, all you have to do is tune your radio to a top-40 station, plug it into your computer and sample it [kuro5hin.org] for a couple of hours, then spend 10 minutes editing. Far easier and less time consuming even than iTunes, with better quality rips! But the RIAA labels control what goes on the radio; they can keep indies off. What they can't control is internet radio, which they have effectively killed, and P2P, which they are trying desperately to kill.
At the risk of repeating myself (better than not getting the point through), this is about crushing the cartel's independant competetion, not about "piracy". Yes, P2P costs them sales - but not because you won't buy that Britney Spears CD after downloading all the songs. It's because after you buy those four indie CDs by that band you found on P2P or internet radio for five bucks apiece [kuro5hin.org], you no longer have the twenty to buy Britney's drek. If you like it, you'll buy it, and only a fool or a damned thief would believe otherwise.
-mcgrew [slashdot.org]
Unlikely (Score:4, Insightful)
It's much more likely you will see the experienced members of the legal team quietly move out to other jobs and new inexperienced members will come in and do the same failed strategy as before.
If it was going to end, we would have seen some level of common since out of the RIAA by now either dropping music prices drastically and providing consistent DRM free music. Drastic price reduction is the only way they are going to cut piracy and that is something they will never do. They are spoiled with years of charging insane amounts of money for something that typically costs them nothing or next to nothing. They are not going to change there thinking until they lose most of the new music being recorded to other venues.
Paradigm Shift (Score:5, Interesting)
That said, many thanks to the folks who have been fighting the good fight against the RIAA and their attack dogs. There's no doubt in my mind that we wouldn't been seeing Amazonmp3 or iTunes Plus without their efforts.
cheers.
Precedent (Score:5, Funny)
After all, all these cases are pretty much identical:
RIAA: ZOMG PIRACY! YOU GETTIN' SUED, FOO!
Plaintiff: Don't sue! Here's some money to make you go away.
RIAA: Okay.
(or)
RIAA: ZOMG PIRACY! YOU GETTIN' SUED, FOO!
Plaintiff: What? Fsck that! We're going to court!
Judge: Court is now in session.
RIAA: We're going to drop the case, because our scare tactics have no legal merit.
Re:Precedent (Score:4, Insightful)
No, they don't 'have' to be heard by jury, but the judge will take it into consideration that another case did.
And there's been a couple cases later that don't fit your 2 patterns:
RIAA: ZOMG PIRACY! YOU GETTIN' SUED, FOO!
Plaintiff: What? Fsck that! We're going to court!
Judge: Court is now in session.
Judge: I'm dropping the case, because your scare tactics have no legal merit. You'll also pay the defendent and their lawyer a lot of money.
More Meat (Score:4, Interesting)
The Jury trial next week is going to be another of those fun trips through surreal litigation land, I bet. I expect a lot of time spent on who actually owns the copyrights to the songs (which, Although I haven't read any reference to it yet, means the RIAA lawyers will have to identify the the song, AND but the actual copyright holder for the specific recording or performance itself. That should layer a new level of complexity.. Imagine the RIAA identifying some tune that is covered by a few bands:
first; prove it was an audio file and was copyrighted material.
Next; Identify the specific performance, because copyright extends to the artist performing, not just the composer/writer.
Then; you get to establish chain of copyright ownership through the various library transfers and company mergers through the years.
Finally; convince a jury that all the things you assert along those items are true.
I point this out, because I see a lot of evidence concerning screen shots, and such, but don't actually see where actuall files are used as evidence, only lists of files and logs. I'm sure, since forensics on Hard drives have occured, that there have been instances of found files that are identified... But that seems pretty rare.
I'm still trying to decide if I am hoping that the chain of ownership is broken or not. If it's broken, there is a precedent for dismissal of a lot of cases, and additional reasons to demand a jury trial that it seems unlikely the RIAA can win (whether the defendant is actually guilty or not). On the other hand, if they can establish copyright ownership, then there is a case for misuse of copyright. My understanding is that "misuse or copyright" voids the copyright. This is all pure speculation, of course, but it doesn't seem like it would take more than one case where copyrights were removed to halt virtually every case out there, since such a judgment would quite literally turn the industry on it's ear overnight.
I believe that the industry is going to (has, though some companys don't seem to understand that yet) change. I supposed, in a twisted way, we should thank the RIAA, ultimately, their actions have changed the landscape faster than it would have otherwise, I think.
As If This Were Actually True (Score:3, Insightful)
What infuriates me is the YEARS have they been able to get away with abusing the judicial system. Could NewYorkCountryLawyer abuse the judicial system, much less a man off the street so much with no consequences whatsoever?
With the sodomized condition of the Federal Attorney Generals Office (200+ political officials have the capacity to meddle in their affairs) and the campaign contributions flowing, there's no consequences awaiting any of the media conglomerates.
This is a perfect example of the powerful working with wanton disregard of the rule of law. Sadly, too few participate in our political system, so the abuse continues.
They've created a pirate culture (Score:5, Insightful)
I think that's mostly true, but that it's far less true than it would have been if the industry had pursued different polices over the past several years.
There's a whole generation out there now that's grown up with piracy, and that's totally comfortable with it. Because this fight has polarized people so much, it's pushed a lot of people into the pro-piracy side who wouldn't have been there otherwise.
Re:They've created a pirate culture (Score:5, Interesting)
Re:They've created a pirate culture (Score:5, Insightful)
Yup. Why would somebody pay for music when they can get it for free?
The RIAA seems to be meticulously removing any reason anybody would have for buying their stuff. It's worse than watching the business practices of Major League Baseball. It's fascinating, much like a ship having a disagreement with an iceberg.
(Yes, all my music has been acquired legally. Why do you ask?)
Re:They've created a pirate culture (Score:5, Interesting)
Usually, when you buy an original product instead of the fake, you have some benefits. You have bought higher quality. Well, at least it's likely that you did. You get support, you get the option for replacements if it breaks, the manufacturer might even throw a few more service goodies at you, you get access to further options for free or little money, in general, there's an additional value in it for you, the valued customer of the original part instead of some knockoff.
With content it's exactly reversed. You do not get "more" for buying the original, you get less. You get limitations due to DRM, you get mandatory previews and FBI warnings on movies, you have to keep the CD in the drive with games and with some software it gets really bizarre with dongles (which invariably will break something else), or copy protection drivers that cripple your machine in a way or another.
The actual problem with any kind of copy protection is that it devaluates the product, compared to the illegal copy. The value of the copy is higher. I know people who do buy the game, then get the rip to play it.
I wonder how long they will keep up buying it. That step does not give them anything tangible, actually...
Re:They've created a pirate culture (Score:5, Informative)
Actually, the Record Industry had the same opinion of cassette tapes, it's just that they couldn't track the copying as you can with Interweb p2p. But "back in the day" there where "public service" campaigns against cassettes, and they tried many times to get laws and taxes passed on cassettes as well.
Wait. I'm sorry, most of you don't know what cassettes tapes are... Here's a linky: http://en.wikipedia.org/wiki/Compact_Cassette [wikipedia.org]
Re: (Score:3, Interesting)
Re: (Score:3, Insightful)
Even more than that. It's good to have everyone keeping in mind that our legal system isn't perfect, and be willing to redress matters either by changing the laws, or by a willingness to disobey, rather than being blindly obedient. Also helps people to s
Road trip to Duluth! (Score:3, Funny)
Re: (Score:3, Insightful)
And we should care why? (Score:4, Insightful)
That being said, I'm not sure why we particularly care about this particular article, other than the fact that it parrots the party line here at Slashdot. These guys aren't lawyers, and don't spend a lot of time examining the recording industry. In fact, over the 7 years that I've been reading their articles, this is the *only* one I can recall that discusses the music industry at all. It strikes me very much as an op-ed piece rather than a serious legal or business study of an industry, and I don't give it any more credibility than some guy ranting on his blog.
To be sure, the RIAA has suffered legal defeats and setbacks, but just because a financial news and opinion site happens to pick up on it does not mean that the industry is going to collapse, nor does it mean that those who are being/will be sued should stop worrying.
Re:And we should care why? (Score:5, Insightful)
Here's why I care.
The fact that an investment web site like Motley Fool and a business program like "MarketPlace" (which just did a 3-part series last week [blogspot.com] on the record industry's grand mistake) take hold of the issue isn't necessarily of interest from a legal point of view or a scientific point of view, but it is of great interest to shareholders and would be shareholders.
The impetus for dropping this campaign won't come from
-the lawyers who have been the principal beneficiaries of this juggernaut,
-techies,
-the entrenched management who would never admit to their shareholders that they've been on a fool's errand for the past 4 1/2 years,
-the RIAA which has been destroying the record companies, or
-anyone else.
It will come from shareholders when they come to realize they are being taken for a ride by a handful of morons who were too dumb to (a) realize the business opportunity the internet represented for them until it was too late, and/or (b) create a new business model that could harness the internet's energy.
The investment community is coming to realize that the big 4 record companies stocks -- all referred to in the Motley Fools articles -- won't be worth a damn until the record companies leave the past, enter the present, and work to survive into the future.
That's why the article means something.
PS As a lawyer, I think the Motley Fool author's understanding of the legal issues was pretty good, certainly a lot better than that of the RIAA lawyers I've met.
My outlook (Score:3, Insightful)
These people would buy the spiel of the RIAA that MP3 piracy is closely linked to funding terrorism, paedophilia and the clubbing of baby seals and end up giving some poor bastard the death sentence for downloading a Celine Dion CD.
Duluth is a VERY liberal town, with a somewhat conservative outlook. In otherwords, you better DAMN well have a good case, to come into our backyard and sue some good-old-boys (ya sooper don't ya know). And frankly, as many slashdotters would agree, the RIAA often seeks excessive damages. BTW, civil cases are about proving real damages.
Just cause its wayyy uppp north (ya know), don't go making asinine assumptions about what people will and won't buy. There are 3 universities in an 120,000 person area, and I'd generally consider people in the area to be fairly reasonable.
BTW its speil not spiel
Re: (Score:3, Informative)
Maybe I'll buy some more CDs now (Score:5, Interesting)
What a bunch of morons.
It's About Time (Score:3, Interesting)
Copyright is exactly that, your right (or lake thereof) to make a copy of something. Making something available to be copied is not the same thing as actually making a copy. There's a very important and practical line there. If you were guilty of copyright infringement every time you made something available to be copied you'd better carry every book or copyrighted piece of paper with you at all times or you'd be infringing copyright by making that document available for someone else to copy when it's not in your immediate possession. You better not go to sleep either. You're evil college aged brother or sister might steal said book or document it and copy it while you sleep.
You can argue all day long about the person's intent when they have music files on a P2P network but the intent to make something available for copying doesn't (yet) factor into the laws governing copyright infringement as many courts are interpreting them. The real question is how long will our laws stay that way? It's only a matter of time before intent becomes a crime. I bet the RIAA lawyer goons have already written the text of laws that factor in intent and are just waiting for a Senator and Congressman who owe them and have the ability to sneak it into the next copyright or patent "reform" act intended to "update" our laws so they "keep pace with the rapidly changing technological landscape" while "protecting" the rights of artists. That's always the kind of language used when politicians (corporations) want to further erode consumer rights.
Re: (Score:3, Interesting)
Re: (Score:3, Insightful)
Re:Motley Fool... RIAA (Score:5, Informative)
From the linked page: A big-F Fool is one who sees, among other things, people being small-f fools, and isn't afraid to say it.
Re: (Score:3, Funny)
Go ahead, convert that for me will ya?
Re:internet time (Score:4, Funny)
Internet time fluctuates with the clogging of the tubes, which we all know the internet is made of, and how many libraries of congress worth of emo-ranting the so-called "blogosphere" is putting out per forthnight.
So basically you divide your local time by zero and OH SHI-
Re:internet time (Score:5, Funny)
Re: (Score:3, Funny)
Dude, c'mon. They taught the 12 Parsecs mistake* in geek101^.
Your overconfidence is your weakness.
The ability to speak doesn't make you intelligent.
If you strike me
Re:internet time (Score:5, Interesting)
Re: (Score:3, Interesting)
Re:I Wonder (Score:5, Informative)
As to the "walking papers", I imagine the shareholders are on the verge of doing that pretty soon.
Re: (Score:3, Insightful)