October 16, 2007 4:00 AM PDT
Perspective: Rights and wrongs in the antipiracy struggle
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That question was posed in a CNET News.com story last week, as well as in other commentaries regarding a copyright lawsuit won by the RIAA. It's worth revisiting why we, the Recording Industry Association of America, do what we do and how we got to this place.
From the moment we announced in June 2003 that we would be gathering evidence for the purpose of bringing lawsuits against end users, the program has generated attention and debate. We welcome that national conversation.
This was never a step we wanted to take, and we recognized that it would generate criticism in some quarters. It's tough love--for the first time, despite years of educational efforts and the availability of plentiful legal alternatives, we are holding people personally and financially accountable for the theft of creative works.
But the backdrop was a community hemorrhaging jobs, careers and investment in new music, amid a pervasive culture of looting in which there was little understanding of the law or the negative consequences of breaking it.
The process of bringing lawsuits has changed slightly since the program's inception, but one constant has been the process of identifying people who are stealing music online.
When we target an infringer, we do not know who that person is or any demographic information about the computer user. We know the songs that are being illegally "shared" (with millions of anonymous people) and the time and date of that copyright violation, nothing more. We do not have the ability to screen defendants based on their perceived sympathy or anything else.
No doubt, if we selectively enforced our rights against those deemed less sympathetic, the fringe copyright critics would call us arbitrary and capricious. We target theft. Period.
What have our antipiracy efforts yielded? A legal marketplace that is far better because of what we've done: Digital revenues doubled as a percentage of the market in 2006, from 8 percent in 2005 to more than 16 percent. An illegal marketplace which, prior to the initiation of our deterrence program, experienced exponential illicit P2P use has now mostly stabilized--the average number of households downloading music illegally on a monthly basis was roughly 7 million in 2003 and is now 7.8 million. Compare that with the growth in broadband access to the Internet, which grew from 38 million home users in 2003 to at least 80 million today.
Can there be any doubt that a whole lot more of those broadband subscribers would be illegally downloading but for the lawsuits? Surveys confirm that fact: People who have stopped illegal downloading cite the fear of being sued as the first or second reason for changing their behavior. And, lastly, there is a fundamentally different understanding of what you can and can't do on the Internet--37 percent of those surveyed in 2003 thought it was illegal to distribute music for free over the Internet; now that number has grown to 73 percent.
Think about it. What would the online music world look like had we done nothing? It's not a pretty picture: skyrocketing illegal peer-to-peer downloading without even a second thought about its legality or morality, and a small handful of legitimate businesses struggling to gain traction in a marketplace overwhelmingly dominated by piracy.
Four years into this program, the first trial of our end-user lawsuits finally happened. The fact that it took so long speaks to the clarity of the law and the clarity of the courts' various rulings on our legal program. Even the Supreme Court called illegal downloading "garden-variety theft."
Some defense lawyers, with an ax to grind and an agenda to advance, have posited a variety of bizarre legal theories about our cases. Yes, there have been a handful of procedural motions where the courts have asked us to proceed in a different manner.
But the underlying facts and the overwhelming court affirmations are irrefutable. The legal process we follow has been consistently upheld. And creative counterclaims on such theories as invasion of privacy, trespass and intentional infliction of emotional distress have been regularly dismissed by courts as improper.
Which brings us to the case of Ms. Thomas. Let's be clear. We did not choose Ms. Thomas to be the defendant in the first end-user lawsuit to go to trial. We repeatedly extended a generous settlement offer, a tiny fraction of which a jury later imposed upon her, but for whatever reason, Ms. Thomas turned us down. She and her lawyer chose this fight, not us.
That said, we will not--and cannot--hesitate to defend our rights. What's the alternative? Are we supposed to say "never mind" and concede the rights of artists, songwriters, producers, publishers and labels every time a defendant who may be sympathetic to some refuses to accept responsibility? What kind of deterrence message would that send?
A jury of Ms. Thomas' peers--12 ordinary Americans from the defendant's home state--found her liable for copyright theft. In fact, some wanted to assign even a harsher penalty, according to news reports. We purposefully did not ask for any specific amount in damages. We asked the jury to decide what was appropriate--and after carefully reviewing all the evidence, they determined that $222,000 was the appropriate amount.
None of this, though, is about being in court or winning monetary judgments. We would rather be in the record studios helping artists make great music that we can distribute in lots of exciting new ways that music fans want. Because that's what this program is ultimately about--creating a marketplace that rewards investment in creativity and compensates those who make the best music in the world.
Biography
Cary Sherman is the president of the Recording Industry Association of America.
See more CNET content tagged:
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the RIAA is not listening! They are not listening to music fans
who think that the price of music should go down if the cost of
distribution has gone down (and no one can argue that it costs
the same to distribute digitally as it does to do so in trucks!).
They are not listening to reality, if they think that suing 20,000
normal people, or even 200,000, will turn the tide on
widespread belief that online consumption of music should be
(or at least feel) free! How is the consumer going to respect
copyrights with publicly traded companies like Google and
MySpace do not, and they get off scott free?
Yes, infringing is wrong. And yes, we live in a culture where
many people have forgotten how important copyright protection
is. But the RIAA is making this Jammie Thomas into a modern
day Robin Hood. How can the RIAA hope to succeed in
protection of the rights of artists if they make this about the
mega rich and the relative poor, the individual music fans who
serve as word of mouth recommendation engines at a fraction of
the cost of expensive freeway billboard advertising or fat cat
record label salaries. Many people use p2p sites as discovery
mechanisms because sites like iTunes do such a poor job of
bringing great stuff up to the surface.
The RIAA needs to take its fight to a courtroom where they will
have an impact, to take to task the large publicly traded US
corporations whose cunning and dishonest claims are that they
are only a platform, rather than the digital villains they really
are. Google and MySpace have somehow managed to convince
even some of the major record labels (at least until recently) that
their theft was for the labels' own good, that promotion justified
their receipt of advertising revenue off the back of illegally
streamed music.
I am not arguing that individuals should steal, and often that is
exactly what is happening on p2p sites. But come on, let's be
real! Who is going to respect the outcome of cases against the
little guy, when the big guys are immune.
See www.alldigdown.com/blogs for more on this subject.
It is sickening that litigious solutions are created by the likes of RIAA whose interpretations of legal principle are at best an unfair compromise in their favour, and at worst, a blatant re-interpretation of the laws of ownership simply because they do not actually have genuine evidence of infringement, merely some data which happens to correlate with a p2p member's activity. If the data exists then use it - all of it - do not select simply that which suits your POV and then convince a small jury that you are entitled to do so.
If you can't fix the system because you are not technically savvy enough to do so, or can't be bothered, that does not give you the right to allege people are criminals.
Not "why Jammie Thomas?" - more "Why do you think you have the right to change an entire legal principle simply because you are too inept to catch infringers and nail them on evidence which they are freely distributing every single second they are engaged in the act?"
Even if it requires omitting certain facts, evidence or data.
Is this 1997? Digital revenues should be upwards of 80% in 2007. You could not have possibly done a better job demonstrating the music industry's absolutely inept response to the changing marketplace in the last 10-15 years.
Do you remember Economics 101? Why do black markets exist? Answer that question and maybe you still have time to save your industry.
Offering restricted 99 cent downloads and suing your customers isn't going to do it.
Wow, and I suppose this has nothing to do with the facts that:
1) the average defendant doesn't have the resources to defend themselves in court against $1bn+ corporations
2) the recording industry regularly drops cases against defendants who seem to actually be successfully defending themselves
Don't be so disingenuous Mr. Sherman, what you're engaging in isn't a fight for the artist and the little man, it's extortion. Tell me, how much of that settlement money is going to go directly back to the artists?
I don't suppose the growth of digital music sales has anything to do with the fact that digital music services are still relatively new, and still going through growth and improvement.
And maybe, just maybe, the hemorrhaging in the music industry has more to do with the quality of the product than anything else. The days of purchasing an album for a single song only to find out that the rest of the album isn't any good are over, now that technology can allow the consumer to sample before they buy. Maybe that's what's hurting your bottom line.
If the recording industry would look in the mirror, you'd see that the general public sees you as "positing a variety of bizarre legal theories" because you "have an axe to grind and an agenda to advance".
And while we're on the subject of rights and wrongs, is it right that this single mother should be sued into poverty when Warner Music Group's CEO's own kids only get a stern talking-to when they "steal" music? (http://blogs.reuters.com/blog/2006/12/01/the-most-dangerous-download-of-all/)
Enjoy your short-term victory, because you continue to alienate the very lifeblood of your industry--the customers and the artists--and it's only a matter of time before people have had enough.
YOU are the leader (Boss) of an association (Mafia) which
blatantly practices extortion on both artists AND their music
fans..!!! The Labels pay artists a measly 15 cents per CD
(maximum) then turn around and charge the music fans 100
times those costs to deliver to us that CD..!!!
Today the RIAA is nothing more than an antiquated delivery
system of the 20th Century which like the stagecoaches of the
19th Century became extinct when faster "motorized" forms of
transportation came into being. The Internet is the "Horseless
Carriage of the 21 Century" and the RIAA needs to be put out to
pasture as soon as possible..!! We don't need the Labels to
"deliver" us music at 100 times the cost when we could
conceivably buy the music DIRECTLY from the artists at a much
lower price at the same time increasing their cut dozens of
times over.
Cut out the extortionists..!!!
BUY MUSIC DIRECTLY from the Artists...!!!!!!!
So go ahead, cling to your bloated and antiquated methods of
doing business. We'll continue to shift away from your
products..where do you think the rise of "indie" music online is
coming from? Every time you go after a housewife or a college
student, you're galvanizing more soldiers in the war against you.
You'll lose - we outnumber you and we ultimately fund you. You
point to legal downloads as a "successful" result of your legal
strategy, yet member companies like Universal are trying to
hamstring the one legitimately successful legal service (iTunes)
because they fear its growing power to advocate for fair pricing.
Thats the real issue - you fear a fair and balanced market for
music and other copyrighted properties.
Keep being afraid, and keep reacting harshly and publicly, it will
only hasten your industry's demise, and we'll all be partying on
that day, believe me.
But the backdrop was a community hemorrhaging jobs, careers and investment in new music,
But then he fails to mention whether his plan for solving the failures of his industry...in short the 'don't innovate, just sue' plan actually works. Why the silence? The music industry is fine and dandy now?
Also, he hints at why the digital marketplace exploded. Broadband access increased...that had nothing to do with his lawsuits.
The iPod and the iTunes music store, bringing songs to people...great success for RIAA, only they had nothing to do with it, except they agreed to it. Even that obvious success they have publicly tried to tamper with and make less attractive to consumers.
And his use of the word 'looting'...again, he is so out of date and out of touch. Wide distribution is a requirement for success in the internet age...you figure out how to do that, or, guess what, someone else will...
in fact we see it already with major bands dropping any affiliation with labels and authorizing free downloads. It's not illegal when its authorized. When your music gets to people, you can figure out ways to make money from your legions of fans.
Artists will get compensated, but it requires a new model of business.
Instead of implementing adaptations from a business model which has been in place since people got their music from wax cylinders, the RIAA decided that they'd just treat their customers like criminals instead. Why innovate, when you can just start suing people?
I don't remember the last time I bought a CD. At $19 a pop, why would I make the investment? I'd be willing to use a music subscription service to download music legally, but I can't be sure which services are licensed to carry which labels, and I'm not that interested in doing a lot of time-consuming research to make sure that all the artists I want to be able to listen to will be carried. I also find it highly annoying to subscribe to music services only to find that certain tracks by certain artists are download-only. For a nominal extra fee above the subscription I'm already paying for, of course.
Mr. Sherman, do let us know when you finally get your business in order. Until then, you can keep hemorrhaging jobs, careers and investment in new music for all I care.
P2P distrabution should realy be viewed as a free method of advertising. This is why RadioHead has distributed online, and groups like U2 have stated that they realy don't care if you download there music.
But the RIAA and the lables make no money, so them get mad and cry and then sue people. Meanwile, they try to convince us that we are making the artists poor. Give me a break.
I am sick and tired of media outlets that are affiliated with lables publishing this garbage. Even worse than CNET is MSNBC. They even go as far at to try to make this obvious propaganda look like a news story.
Anyway, there are lots of legal ways to get good quality free music on the net if you only look.
majority of artists obtain income from royalties. Not to mention
the producers who also need to be paid. You can continue to see
music as having no value whatsoever and there for you to steal,
but I will continue to see you as a leech if you never pay for what
gives you enjoyment.
If the attorneys they hire do not know whom they are suing, then the legal advice they are giving the RIAA is below the standard of care. The RIAA is not going to pay to sue someone unless they are reasonably certain they will prevail...
The recording industry is an industy "hemorrhaging jobs." Get real. Artists still make recordings and they still need support staff to do so. If the industry were "hemorrhaging jobs," it would have been on the front page of every newspaper who's editor doesn't understand the issues and/or chooses to a lacky for RIAA. Has anyone heard of a musician who stopped recording because of piracy? No, so the impact of piracy on the recording idustry's human resources is nil. Jobs are not the issue here.
According to the RIAA, their anti-piracy campaign has created a marketplace where digital revenues have doubled - from 8 to 16%. Well, duh. That's the business model that they should be pursuing. Not holding onto the dying business model this specious lawsuit sought to protect. If they were really concerned about anything, but perserving their dinosaur business model, they would have adopted a business model that moves them into the 21st century like any other businesses.
The RIAA claims that their legal actions and/or the threat of legal actions has helped stop piracy. The RIAA must be high. There is a risk you will get sued if you download off P2P sites, but that risk is minute. Even the RIAA doesn't have the resources to go after everyone they believe is pirating music. And, if they don't do that, the effect of their expensive litigation generates no benefit at all. Basic Skinner behaviorism tells us that, unless the consequences of an action are immediate and certain, those consequences really have no effect on behavior, at all. I buy music from iTunes, because it is incredibly convenient and cheap. Not because I am afraid of the RIAA suing me. iTunes is much less difficult to use than most P2P networks, (although I admit that I don't like to screw around with P2P networks).
If ever there were a perfect person to download off P2P servers, it would be me. The way my income is structed, it is judgment proof. Even if they got a judgment, they couldn't execute it, (just like they won't ever be able to collect the $200,000+ they just won).
RIAA thinks that it took so long for this issue to be brought to trial because of the clarity of the law. That is that is a patently absurd statement, made to convince potential downloaders that they cannot prevail. Nothing could be further from the truth. It took so long to get to trial because the issues here murkier than a Louisana swamp. They only way the RIAA prevailed in the latest case is by getting the judge to give a jury instruction that, basically, defined piracy as what the RIAA wanted it to be - in defiance of established legal precedent. I predict this jury instruction won't survive the first round of appeals.
The depiction of "defense attorneys" as having an "ax to grind" is a claim made by just about every plaintiff who ever filed a lawsuit. The RIAA's belief that they prevailed, because "defense attorneys" had bizarre legal theories is also a claim made by every opposing attorney, (plaintiff or defense), in nearly every lawsuit. They are, more or less, following a script that exists in every law firm, whether plaintiff or defense, which allows the claim they are the good guys, while the other guys are trying to pull the wool over the public's eyes.
Finally, the claim the lawsuits are not about money is, probably, the most specious argument made in this article. The whole point to these lawsuits, according to the RIAA, is to get people to stop "pirating" their music in the mistaken belief that this will save their dying business model by forcing music lovers to buy music the way the RIAA wants it to, rather than how the marketplace has changed. If that is not about money, I don't know what is. The $200,000+ in this case is chump change. It is the money they will be forced to spend to change their business model they are worried about, not the judgments they can get from these lawsuits - which seem to me to be nothing but an abuse of process.
However, there are other issues here that are very disturbing. The first is the effective lobbying efforts by the RIAA and the MPAA to extend the length of copyrights to absurd lengths. It must be said that the purpose of copyright is primarily to ensure the creation of works will eventually enter the public domain. The legal right guaranteed to the copyright holder are the means by which this goal is reached.
The second issue is the one of fair use. If I purchase a CD (as I do often) it is my practice to rip it to my iPod and put the CD in a drawer for occasional listening on my full hi-fi system. It was established long ago that copyright does not give the copyright holder to place burdens upon the personal use of the copyrighted material. Statements by by the RIAA in the court show that the RIAA seeks to overturn fair use.
Finally, it must be said that much of the blame for the decline in CD sales has more to do with the declining quality of the music than with file sharing. To claim otherwise is disingenuous.
In the end, I have a very negative view of the RIAA and the MPAA as a result of the aforementioned and in the future I will consider very carefully whether it is in my best interests to purchase the products that help to fund the assault on fair use.
classic example of the Kessler cycle - where a dying technology or
monopoly tries to hang on. That idea is discussed more at
http://drtaxsacto.blogspot.com
The RIAA is not a media company and doesn't sell anything. Merely sues. This doesn't create a market.
an undeniable talent for generating enemies. Even many who
support stiff copyright laws see this as an outrageous award.
RIAA is too smug in the company of well-bought congressmen
to see the coming blowback.
Sherman's cynicism is evident in his solemn invocation of the
sanctity of the jury. No doubt RIAA employs lawyers and legal
psychologists who are expert at cherry picking jurors most likely
to convict. RIAA knows that defendants haven't the resources to
compete in manipulating jury selection.
Sunday I took my family, including my five-year-old, to a local
Motown Records revue. During the show it occurred to me that
there would be little present-day music sold by RIAA members
that I would let my daughter hear, or that I would want to hear.
The RIAA is a trade association for marketers of social sewage.
They helped to create the cultural sea in which their sink is
shipping. Bon Voyage.
Why do statements like this go unchallenged.
Copyright infringement is not stealing. It is copyright infringement. I don't download music and do not condone it but it seems to me the RIAA constantly stating that this is stealing is nothing but a lie told often enough that people believe it.
Also 1 downloaded song != 1 lost sale.
Many people will download a song if they can but were never a potential customer. They would not pay for it even if they had no other option.
I call ******** on the numbers the software industry and the music industry claims of there loses due to piracy. BTW I used to own a software company that wrote it's own software so I know how important these issues are.
Second, p2p activities has only INCREASED since the RIAA morons went out and started to sue their own customers.
At any rate, everytime the complete losers at the RIAA make more ridiculous comments, I would encourage everyone to share all your music with your friends in anyway you can. A 2Gig memory stick can hold thousands of songs. Burn a dvd. Whatever it takes as if it wasn't for p2p we would still be forced to buy overpriced CD's.
RIAA has no idea what copyrights actually are and just bully people around to get more money. Sharing an MP3 is no different than sharing a book or CD with a friend. Until they stop treating all their customers as crooks just because they want to "turn a friend" on to their product, they are going to continue to loose money and artists.
- The model is wrong
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by zextron
October 16, 2007 8:45 AM PDT
- People wouldn't ?share? music if for one song they were not forced to buy the whole album.
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Reply to this comment
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See all 81 Comments >>The industry start changing online business AFTER Napster. They don?t like to sell just what you want.
People wouldn't ?share? music if the money did go to the artists. CNET, please, post a pie chart depicting the slices of the money people pay for a music album. I would be surprised if it was more than 10% goes to the artist.
Finally RIIA members are a guild that keeps out artists that won?t play along with this mafia like association. Just watch MTV and radio playlists? The music they feed us is just like we had no brain. The same product packaged a million different ways. No originality, no creativity, just the same formula over and over again. Not there aren?t alternatives but this is an industry to make money not to serve the customer.