Q And A On RIAA

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Some folks sent in some interesting questions and comments, and the answers may prove enlightening.

I have a serious problem with the way things are
going for p2p networking and file sharing.

Stop right there. Who the hell cares what you think?

I’m not trying to be nasty, but many people who write me on this seem to have this belief that their opinion has to be taken into account in applying the law, like you have to agree to it for it to apply to you.

It doesn’t.

These days, there is a smoking ban in restaurants and bars in New York City. I’m a smoker. I personally have a serious problem with the way things are going with this ban; I think at least some places should have the option of being designated “smoking bars.”

However, the law applies to me just as much as anybody else. My personal opinion doesn’t exempt me from it one little bit. Who the hell cares what I think about it?

If it bothers me that much, then what I need to do is get politically involved and do what I can to get this law changed, though I doubt that will do me any good any time soon.

I can definitely stop going to these places.

What I’d be absolutely stupid to do is light up anyway and not expect any consequences from it because of my opinion. Or just whine a lot about it expecting things to change solely to do that.

However, this is exactly what most P2Pers are doing.

As a
former Napster user I am curious … what about
downloading songs you OWN. For instance if I
purchased a cd but dont have ripping software or my
computer is so slow it cant rip the songs very well or
very effeciently and downloading it is easier am i
also in violation of copyrights? I mean i DID
purchase the cd…. Is that not my right to then have
a copy of that song or cd on my harddrive, and can’t I
have acquired that by any means I see fit being ripped
the cd or download the music from a p2p network or
from a friend?

There’s a few questions here:

The first question is “Can I take material I own and transcribe
it into another format?” The answer to that is “probably, at the moment.”
No court has ruled on this specific issue when the medium in question has not
had a specific legislative provision saying that it is a fair use.

This probably would qualify as a fair use under the general copyright provisions, though.

However, owning a CD by no means gives you the right to download someone else’s copy. Put simply, there
probably is a fair use for you copying your CD, but not getting a copy of someone else’s.

This has a long way to go before it will be settled in
a manor that has the copyright holder AND the people
who use the new (electronic digital video cassett
recorder).. where and when do the laws protect or go
so far as to CONVICT lawful people???

Again, stop right there. If a law exists, and you break it, by defintion, you are not being lawful.

Thank you for reading my views and they are just
opinions that I have but I feel that if the majority
of users of p2p are legal users (i assume they may be
until proven otherwise) then where do we draw the line
no more mp3 music or players???? and what about X.WMA
is microsoft now going to be sued for making software
that can play a cd and copy it onto your harddrive so
that you can listen to it in your car AND computer???

The question is basically, “If downloading and copying is so illegal, what about the
companies that make the hardware and software that make it possible? Why is this any different
that taping off the TV with a VCR?”

The really short answer is, “When push comes to shove, Congress says what is or isn’t illegal. They can say taping a TV
show is legal and downloading an MP3 isn’t, and courts pretty much always follow whatever Congress says when it comes to copyright laws.”

The current legal basis for hardware and software manufacturers to make this equipment is the Sony case. The recent Grokster
case was decided in favor of Grokster primarily due to Sony.

Unfortunately, most people who talk about Sony don’t understand what it does and doesn’t say.

Quickly, when VCRs came out, people started taping movies off the TV. The movie-makers thought this the most terrible thing
in the world, and took Sony to court to stop these devices from being sold any longer. The case ended up in the Supreme Court.

The Supreme Court basically said, “Congress has the right to ban these things, but they didn’t. Until Congress passes a law banning these things, we have no basis to ban them because you can do plenty of legal things with them, too.”

What the Supreme Court did not say was, “People have an inherent constitutional right to use VCRs.”

In the case of VCRs, Congress could have passed a law banning VCRs, but they never did. Instead, about fifteen years later, they passed a law saying that VCRs were an OK fair use.

However, Congress could change its mind tomorrow and ban VCRs, and the courts would have no problem with that (what they would more likely have a problem with would be if VCRs were banned without compensation for the VCR owners).

The same applies to MP3ing. Right now, making the hardware and software is legal, but that could change tomorrow. Congress could pass a law banning such equipment, and given the Grokster case, I bet RIAA and Company are now figuring out how just to do that.

So, yes, this equipment is legal today, but might not be tomorrow (or next year or year thereafter). This isn’t like freedom of speech; it’s a “right” that can go away with a single provision in a single law.

However, the legality of the equipment is really irrelevant. The legal existence of MP3 hardware or software by no means automatically makes MP3 downloading legal, too. There are legal MP3s and illegal MP3s, just like there are legal ways to use a gun and illegal ways to use one.


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Ed

You are such a puss!

Rather than rally the troops of the new digital age and support that *everyone* on the Internet trade even more music (they can’t fine millions of people, that’s *not* gonna happen) rather, you advocate that everyone just lay down?

I am now certain you must be of French descent!

I’ll talk about ancestry on page four. 🙂

The short answer is, “How many bills does Visa send out?”

The reason why the Verizon case is extremely important is that if RIAA wins it, going after a big chunk or even most MP3ers becomes quite doable.

The reason for that is the task can be highly automated. Bots identify those “sharing” illegal files (if RIAA can send a million IMs a week out, they must have that down).

It would not be much harder to download one or two items and automatically check to see if this is the real thing.

Requests for subpoenas can be done in bulk due to a provision of the DMCA which allows it, and once they get approved, out goes the notices to the ISPs demanding your name. Once they get that, then you get a little letter.

Now what will that letter say? Keep reading . . . .


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Ed

I attend Michigan Technological University where Joe Nievelt is being sued
for about $97.8 billion dollars by several RIAA member record labels for
running a search engine. The only difference between his search engine and
Google is that his searched directories shared by Windows File and Print
Sharing instead of the World Wide Web.

From the Google Cache of Joe’s page it is obvious that the bulk of files his
search engine indexed aren’t MP3s or movies. In fact, less than 10% are MP3s
and less than 1% are movies. The four categories made by Flatlan only
contained 33% of all the files indexed – the majority of the files were not
images, sounds, or videos. This consitutes a substantial non-infringing use
of the service.

He is being sued $150,000 for each file shared.

The amount Joe is being sued for is…
$14.8 million per student at MTU
1% of the US Gross Domestic Product
Approximately 8 times what the recording industry earned last year
More than the total GDP of about 170 of the world’s countries
More than the GDP of any of the countries shaded on this map
About the cost of giving each person in the US 23 CDs
Over 600 times what the Recording Industry was ordered to pay for
price-fixing CDs

Now here’s somebody who must have had one helluva party after the Grokster decision! The same legal logic that applied there would apply here.

Nonetheless, it does illustrate how the RIAA can use the current copyright infringement law to get you to settle out-of-court.

The civil penalty for copyright infringement can be up to $150,000. $150,000 for one song. That amount has absolutely nothing to do with the profit or lack thereof for doing this.

They really don’t need to find or download too many songs on your hard drive, now do they?

In all likelihood, RIAA will first go after a relative few, using them as test cases to make sure their procedure is 100% legal and sure to get a conviction. They’ll try different approaches and see what works and what doesn’t. They may lose a couple on the way, but that will just tell them what not to do when they go big-time.

After that, if people are still MP3ing left and right, you could see something like this:

First they send you an “IM” saying “Don’t do this.”

If that doesn’t work, maybe they’ll next send you a letter by mail. (BTW, they wouldn’t take the gradual approach because they love you and don’t want to get you in trouble. In a nutshell, if you get the message, fine. If you don’t, then they’ll have grounds to sue you for more for “willful” infringement.

If you still don’t get the hint, you could well get another letter from the RIAA saying something like:

Despite our previous messages and letter, you have illegally made available the following three songs which we downloaded and now have as evidence.

{Legal language explaining why this is all perfectly legal and citing cases just like yours in which the defendant was found guilty.}

You have your choice. You can pay us $2250 (which is the absolute minimum the civil court will fine you for doing this).

If you don’t, we’ll sue you for $450,000 plus our legal costs.

What would you like to do today?

Here are your choices:

You can pay them.

You can ignore them, in which case they’ll go to court. If you don’t show up, they automatically win. Once they have a judgment, they can do nice things like put a garnishee on your salary. This will definitely crimp your lifestyle, and it will take a long time to pay $450,000 or whatever amount the court decides to assess.

You can go to court. There, you’ll have two choices. You can argue the case yourself and have the judge call you an idiot while ruling against you, or you can see (and pay) a lawyer to call you an idiot and tell you to settle.

By the way, the standards of guilt are much different for civil cases than criminal cases.

In criminal cases, the prosecution must prove the defendant is responsible for the offense at issue beyond a reasonable doubt.

In civil cases, the plaintiff must prove the majority of evidence shows the defendant is more likely than not responsible for the offense at issue.

So if the RIAA has electronic records proving that you had the files available for download, and your defense is “I bought all these CDs, but the dog ate them and the receipts, too,” you’re going to lose.

And in all likelihood, the court will assess you more than you would have paid had you settled with the RIAA in the first place. If the court really doesn’t like you, they’ll have you pay the RIAA’s legal costs, too.

Again, once RIAA has its settlement, it can do the garnishee routine.

If you’re a kid, don’t expect to be protected by your age, again, this is civil, not criminal law. If it’s your parent’s computer, in most U.S. states, they can go after your parents instead for a few grand or more. I bet they’ll like that.

You say you’ll never buy another album again? Well, may I suggest that if you’re paying off one of these settlements, that will be more profitable to RIAA and Company than selling you CDs.

P.S. Revenues and profits are two entirely different things. Revenues are what you take in. Profits are what is left after expenses. The record companies may have had around $10 billion in revenues, but their profits (the money they make after their expenses) is much, much less than that.

Do I know for sure that RIAA will do all these things? No. What’s important to know now is that they are laying the groundwork so that they can do all these things, and this is just one set of options.

In all honesty, I really doubt this will be all-out war in a couple weeks. What will probably happen is that it will gradually escalate: first a few, then more, then a lot.

I doubt RIAA and Company want all-out war right now. They’re hoping/expecting that making examples of some people will stop this. Based on what many of you have told me in the past, I don’t think that’s going to work, and they’re going to find themselves doing more and more and more.


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Ed

With Kazaa getting more and more risky do you think the
RIAA will take an equally aggressive stance on IRC file trading and older
non peer to peer pay for use servers like hotline?

I got quite a few messages like these. Others mentioned Usenet, or file encryption.

Honestly, I don’t know what they’ll do in these areas. Frankly, I’ve been surprised RIAA and Company has been as aggressive and multi-faceted as they’ve been the last few months.

What is likely to happen is the harder it is to do whatever it is, the less likely it is that it will be heavily pursued.

Understand what RIAA and Company need to do. They don’t have to stop all of this; they just have to knock it out of the mainstream, and these days, mainstream means P2P.

If, for instance, you use an IRC channel to swap encrypted music files and you heavily restrict who can do this, you’ll be a hell of a lot safer than doing unencrypted P2P, but then again, how much damage can such a restricted group do?

Think of P2P as an open-air drug market that RIAA is trying to close. If they do, it doesn’t mean drugs won’t get sold. It just means they won’t be anywhere as easy to get.

It remains to be seen if free music is as generally addicting as drugs. In all likelihood, they’ll be about the same; most will stop past a certain level of inconvenience/potential for trouble, a relative few won’t.

That’s not the importance of the comment, though.

During the time I’ve discussed this, I have found few if any people who are truly devoted to the “cause” to the extent that, for instance, they’d gladly go to jail for it.

The overwhelming majority of comments, once you strip away the BS, are either “I can’t be caught” or “How can I keep doing this without being caught?”

The key word is “caught.” This is not the civil rights movement; it’s almost entirely people getting away with something because they don’t think they’ll get caught.

When the prospect of being caught reaches or exceeds a person’s level of fear of being caught, that person will stop.

There is no doubt in my mind that that’s precisely what will happen in the vast majority of cases. The only question is “How high will the level of being caught have to be before the average MP3er will stop?”

I suspect the RIAA thinks/hopes the level will be low. I think it’s going to have to be pretty high, at least among the major providers. I don’t think a news story is going to stop most people from doing this. I do think a friend’s story about getting caught will.

Many people have openly or not so openly asked, “Is pure leeching safe?” The answer is, “Probably, but if everyone is leeching, and those who are providing are getting sued, who will be left to leech from?”

It’s not a matter of my being a puss or of French descent; it’s a matter of the vast majority of MP3ers being that way.

There’s no community, no organization, not even a common interest outside of self-interest. Millions of people used Napster, but when Napster tried to organize a rally supporting it a few years back, not even a hundred people showed up.

That’s not community, that’s comical.

There’s exceptions, but only a tiny percentage of those who do this are willing to pay a big, much, or even any personal price for it.

When push comes to shove, most will just drift away. Is that cowardly? Maybe, but it’s like being in the Iraqi army fighting for Saddam Hussein a few weeks back. It’s not the most sacrifice-inducing cause in the world.

The only questions remaining are “How much push will it take?” and “How much will RIAA and Company end up pushing?”

More questions and answers tomorrow.

Ed

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