Subtle Distinctions
From a recent story on how the RIAA is sending out letters to hundreds, possibly thousands of college students, demanding that they cough up $3000 for music they’ve downloaded:
But the students coughing up the cash question why they’re the ones getting in trouble.“They’re targeting the worst people,” UNL freshman Andrew Johnson, who also settled for $3,000. “Legally, it probably makes sense, because we don’t have the money to fight.”
Bingo. Hit the nail on the head. That’s exactly why they’re being targeted. It would not be surprising to me if the RIAA actually did a financial check on the people it sued, making sure that none of them were capable of a strong legal defense. The $3000 number in itself should be questioned: why that amount? Probably because it is just enough that many people would pay it, but not enough that putting up a legal fight would be worth it.
The perfect definition of a nuisance lawsuit. Though there is a better name for it: extortion.
Johnson got his e-mail in February, with the recording industry group’s first wave of letters targeting college students. He had downloaded 100 songs on a program called LimeWire using the university network.The money to settle came from the 18-year-old’s college fund. He’ll work three jobs this summer to pay back the money.
Johnson compares what he did to people driving 5 miles per hour over the speed limit.
“It’s not like I downloaded millions of songs and sold them to people,” Johnson said.
There is a point to be made here. I have commented before that when it comes down to it, downloading music for free is illegal–you are getting value for no money. So why is it so common? Why do so many people, perhaps numbering in the millions, join in the activity? The answer was given by Mr. Johnson: because it is seen as equivalent to going 5 miles per hour over the speed limit.
Why that perception? It has to do with how we get our media. So often it is free. We get TV shows broadcast into our homes for free. We can videotape them and keep them. We can even record shows on a DVR which allows you to clip out the commercials and save the pure media to DVDs–essentially getting for free what you pay a lot for from the store. And that’s not illegal. (Edit: Okay, maybe it is illegal. But it is so widely considered as legal and so universally done that the distinction is academic–and it is never prosecuted. It simply proves the lines and perceptions are even more blurred than I thought.) You can do the same with movies. As long as it is broadcast to your home and you record them for your own viewing, there’s nothing wrong at all with that. You can do the same thing with music over the radio. We get free news on TV, radio, and the Internet.
So why is it illegal if I get the exact same media over the Internet? What is the difference between my getting a TV show from my TV, clipping the commercials, and saving it on a DVD, and getting the same show from a download service? The end result is exactly the same, no difference at all, except the type of effort I put into collecting the media.
Legally, the answer is fairly clear: one was obtained through a licensed distributor, packaged with commercials, which in fact paid for the product. That I was able to clip out the commercials was a technical loophole. Downloading from the Internet for free is different: the product is not licensed for distribution, and there is no payment made to the content owner for the distribution.
The thing is, this distinction is virtually invisible to the consumer. We tend to ignore commercials, see them as intangible, abstract things which are to be disregarded for the most part (unless there are talking frogs or whatnot). They are discardable. Take those away, and the distinction vanishes. That’s the “5 miles per hour” that Mr. Johnson was talking about. Because we have grown up disregarding and even looking with scorn on commercial interruptions and intrusions, seeing them as annoyances to be avoided and not integral tools for delivery of content, most normal people do not see them as something that makes or breaks any kind of legality.
If I can legally record a song as easily and identically as I can download it from the Internet, then there is no great moral warning flag telling me that what I am doing is wrong. So people are color-blind to the difference. That’s why so many people see nothing wrong with downloading music.
As I said, legally, technically, it is wrong. But does that change when massive perception says differently?
Now, here’s the interesting part: the same subtle shift also applies to the RIAA. Technically, what the RIAA is doing seems legal–it is suing people for illegally accessing their property. However, just as their legal targets are getting otherwise legal content in an illicit method, so is the RIAA. The methods they are using to get money from people are as illicit as the music their targets are downloading. Blindly suing thousands of people, not really knowing whether they deserve to be sued? Using nuisance-lawsuit methods to essentially extort money from people, designing the “settlement” so that people will give in even if they didn’t do anything illegal? Crafting legal tactics that keep their illicit strategy from being exposed in court?
In a very real way, the RIAA is doing something far worse than any of those college students. Even if the students that the RIAA is targeting know what they are doing is illegal, they know how frivolous an offense it is. The RIAA, on the other hand, knows exactly how dishonest and illicit it is to be doing what they are doing–just as they by now must be aware of the fact that illegal downloading of music has no actual impact on their income.
Edit: I would add one final note–piracy could be ended overnight by using the tools now available on the Internet. How? Targeted commercials. Content providers are now getting addicted to the sale of content that until now has been in that consumer-oriented “free” zone, paid for with commercials. But selling media begs for piracy, which will always win out, as Steve Jobs has noted. The way to defeat it: give away media for free, along with targeted commercials. We hate commercials because they are almost always for stuff we’re not interested in. But that’s so 20th-century–broadcasting commercials blindly to an audience where 97% of the viewers turn away in disinterest. The Internet allows for targeted advertising. Get people to register for all the TV and movies and music they can eat by filling out a survey, which includes the kind of commercials they like to watch, including stuff they plan to buy. If commercials were all movie previews and computer ads, I would more likely watch them, and so would most people. That could easily cover the costs. I outlined it in more detail here, almost three years ago.
It is NOT legal to archive materials on your dvr. It is NOT leagl to disperse those recordings.
You just have no idea how restrictive todays big media is.
Spend time researching what is legal and what isn’t at Videohelp.
Dvorak: What the French got right with proposed DRM law
Tuesday, March 28, 2006 – 09:23 AM EST
“So France doesn’t like the idea that Apple and the iPod and iTunes are intertwined with a proprietary structure that has no way for any other player/music download service to compete. The French say that Apple must either open the kimono, as it were, or be banned. Apple thinks it may as well walk away from France,” John C. Dvorak writes for PC Magazine. “Screw those French!”
“The French are also skeptical about the whole movie-piracy phenomenon. Why should illegally downloading the equivalent of a $19 disc result in a $250,000 fine and 5 years in prison? Shoplifting a $100 item from a store—which is tangible and real—has fewer consequences. Does this make any sense to anyone? The French don’t think so. Illegally copying movies or downloading should be like a traffic ticket—perhaps a $100 fine. Now they are being accused of ‘encouraging’ piracy. How’s that? $100 is a lot of money,” Dvorak writes. “The American tendency to prioritize poorly seems to be thematic. It took yet another new twist when a get-tough stance against Wi-Fi poaching cropped up in Illinois. Yes, forget burglary, where someone steals something tangible. Instead, we need to bust Wi-Fi poachers… Law enforcement should not be wasting the taxpayers’ money looking inside every car where they see some guy sitting reading a newspaper, in hopes of finding a Wi-Fi poacher… I’m moving to France.”
Oh, Those Crazy French!
ARTICLE
By John C. Dvorak
While the world moans and groans about the French and their attitude of cultural superiority, you sometimes have to give them credit, often in hindsight, for their ability to see through all the BS out there.
So France doesn’t like the idea that Apple and the iPod and iTunes are intertwined with a proprietary structure that has no way for any other player/music download service to compete. The French say that Apple must either open the kimono, as it were, or be banned. Apple thinks it may as well walk away from France. Screw those French!
The French are also skeptical about the whole movie-piracy phenomenon. Why should illegally downloading the equivalent of a $19 disc result in a $250,000 fine and 5 years in prison? Shoplifting a $100 item from a store—which is tangible and real—has fewer consequences. Does this make any sense to anyone? The French don’t think so. Illegally copying movies or downloading should be like a traffic ticket—perhaps a $100 fine. Now they are being accused of “encouraging” piracy. How’s that? $100 is a lot of money.
This is the problem, and I finally realized it. To Hollywood, $100 is not a lot of money. In fact, $250,000 may not be a lot of money to many of these folks. I just died when I was looking through the latest Forbes list of Hollywood’s top incomes. Comic actor Will Farrell makes $40 million a year? For what? I mean seriously, I don’t want to exhibit income envy, but what great skills does Farrell employ to deserve $40 million?
Well, he obviously must attract more money in box-office receipts than he’s paid, but if that’s the case, things are quite skewed, and some college kid downloading a movie can’t be a threat that deserves jail time. I mean, really. The French have got it right. Especially when you consider that you can record the movie off a cable channel without penalty.
So while drug-dealing, cocaine use, murder, mayhem, armed robbery, rape, and illegal corporate shenanigans run rampant in the U.S.A., law enforcement has to be on the lookout for movie downloading, to protect Hollywood billionaires. Curiously, the police are often mocked and ridiculed in these movies. Ah, irony.—Continue reading…
The American tendency to prioritize poorly seems to be thematic. It took yet another new twist when a get-tough stance against Wi-Fi poaching cropped up in Illinois. Yes, forget burglary, where someone steals something tangible. Instead, we need to bust Wi-Fi poachers. This is get-tough police work, eh? How proud they must be of themselves.
In this case, there was a guy parked in his car outside someone’s house, apparently downloading his e-mail or who knows what. The network had no security, so he partook. I personally think that an open network is just that—open. And if it abuts your person or property, you can connect to it. (I’m not going to keep arguing about it.)
This much I can say: Law enforcement should not be wasting the taxpayers’ money looking inside every car where they see some guy sitting reading a newspaper, in hopes of finding a Wi-Fi poacher.
Knock, knock. “Sir, is that a laptop? Out of the car! Hands on the hood. I said hands on the hood! Spread ’em. Jenkins, grab the laptop. Click on View Wireless connections. What’s it say?”
“Says ‘default,’ sir.”
“Okay, go door to door, find default!”
Bang, bang. “POLICE, OPEN UP!”
Soon there’s a 10-year-old peering out of a partially opened door. “My mommy is in the bathroom.”
“Ask her if you have a wireless router in the house called default.”
“You’re scaring me!”
I mean, come on! The Wi-Fi poaching police are on the job. How humiliating is it to be assigned that job? “So what do you do for the police? Vice? Narcotics? Gang infiltration? Homicide?”
“No, Wi-Fi poach protection and enforcement!”
I’m moving to France.
Here’s the differene, and I do belive the RIAA is wayy over the line
When you tape something for TV, that’s fair and personal use. When you hook into torrent or LimeWire, you’re distributing that title to dozens, hundreds or thousands of other people. Check the fair use law, you can’t share the tape you made from TV, and the commericals pay for the RIAA royalties for the radio station, or the TV station, or whatever. Nothing is free, someone, somewhere is paying.
It is NOT legal to archive materials on your dvr.You may be right on that one. But this is a good example of line-blurring, because virtually everyone does it, and there is no way in hell that the entertainment industry is going to start suing people for it, even if they did have a way of detecting it. As an aside, I live in Japan, and the laws may be different here. Certainly they sell large numbers of DVRs with built-in DVD recorders, and virtually all VHS, DVR, and DVD recorders are designed for archiving. They may have covers, like they have archiving only for input from video cameras for home movies or something.It is NOT leagl to disperse those recordings.Never said it was. To the contrary, in fact.
“…..downloading music for free is illegal–you are getting value for no money.”
‘Value for no money’…….a very poor definition for “illegal”.
Okay. “Taking something of value without paying for it.” Not like I’m a lawyer or anything.
I want to consume content however I want. YOU (media company) need to adapt your business model to fit the way I want to consume your content. Creating an adversarial relationship with your consumers will eventually lead to YOU losing even more market share.
“I Want to consume content however I want”.
This strikes at the exact reason why everyone could give a flying “F” about downloading. Hate to say it, but the recording and movie industry take liberties and money wholesale from our pockets in a calculating and court proven to be anti-competitive and monoply driven way. Add further insult to injury in that the companies in order to make it even more difficult to “consume” what they are selling, tack on competing and ungainly DRM schemes that make it impossible to do what any normal person would like to do with something they have purchased at a grossly inflated price. So my Itunes song purcahsed song at 99 cents plus tax will only play on my ipod and computer. God forbid if I want to play it in my car on a disc I made of the digital format for more money. My car isn’t “Wired in” to the DRM, so therefore out of the loop. I could just make a music CD, but how is this any different than heading down to my local FYE. Its a gamed system. Just like all the other DRM schemes(Napster, Urge, etc..) I wont be able to listen to my “fairly purchased” propery without purchasing further support and equipment. They place the burden of further cost on the consumer. I feel that if they want everyone to play fair, the RIAA should play fair as well. Until they all sit down and figure out that everyone just wants a uniform format, they can “consume” however they would like at a fair price without jumping through hoops, the fight is lost. We are the reason why the RIAA has a business at all. Act like it.
E: So my Itunes song purcahsed song at 99 cents plus tax will only play on my ipod and computer. God forbid if I want to play it in my car on a disc I made of the digital format for more money. My car isn’t “Wired in” to the DRM, so therefore out of the loop.Actually, you’ve made the same mistake that so many others make when you use the iTunes store purchase as an example of over-DRM’ed music files. In fact, the iTS tracks are the least offensive in that respect. First, you can put the music on up to five computers running iTunes which have your account info input into them. And when it comes to cars, more offer an iPod-savvy system that allows you to plug in your player.I could just make a music CD, but how is this any different than heading down to my local FYE.Then, what do you mean by “a disc I made of the digital format”? And what’s so bad about making a CD? It takes a few minutes and costs virtually nothing.
Better yet, when you make that digital disc you describe, the iTunes track gets un-DRM’ed, at least when it’s a CD track. (I don’t know what happens to the DRM when you make an MP3 disc.) It should play fine in any player, no problems whatsoever. You can even use that route to remove the DRM completely and put it back into whatever format or player you want. Just burn an iTunes Store-purchased track to a CD, then re-import it into iTunes or whatever other ripping software you have. No DRM. You can then convert to any other format using any number of free tools, and play it on the media player of your choice. There might be a slight degrading of quality, but only so much as could be detected by an audiophile snob. iTunes allows for unlimited CD burning of a purchased track, just so long as you re-arrange the playlist every seven times you burn a CD. Not to mention that iTunes is starting to release non-DRM music, and could start pushing the industry into going that way for most or all music. So I think it’s a bit unjustified to beat up on iTunes–it’s probably the least restrictive DRM and is trying harder than anyone else to get the industry to move away from such restrictions.
(I don’t know about FYE. Do you mean the store? Do they sell individual, non-DRM’ed tracks? And how is that better than buying from home?)
But that’s just iTunes. Probably other stores are DRM’ed exactly as you say. But I hate to hear the best and least-offensive system unfairly maligned like that just because it’s the most popular and thus the most common example people choose, not knowing what the system actually allows.
Any one paying this 3000 dollars deserves to loose it.
The overall problem is that the music industry does not wish to adapt to new technology. The vast majority of music downloaders would gladly pay for the downloads given that 1) They are an open format — to prevent DRM incompatibility, and 2) They are reasonably priced. The music industry has always struck me as asinine. If Sony, Viacomm, or any of the other big labels would simply put their entire catalog on line they could get rid of packaging, distributors, and shipping costs and sell an album for $5. The companies have decades of music which it is not profitable to press CDs of, but would be well worth selling online. Hell, their sales would sky rocket. Yet, instead of looking towards the future, these companies try to force a out-dated sales/distribution model on us.
How many blank cassette tapes were sold during the seventies? There were at least a dozen companies competing for the market(Sony, TDK, BASF, Memorex, Maxell, etc.), millions of blank tapes were sold, and every single one of them was filled with about 40 “pirated” songs. Anytime anyone bought an album, taped copies were distributed to their friends. It was standard procedure, and it helped the record industry by exposing their product to a wider audience. Despite this pirating activity, all of the rock stars and producers were as rich as they are today.
Now the RIAA has decided to start suing their customers because their sales are down 15%, which they immediately attribute to music downloads. They never consider the fact that they’re selling an over-priced product that sucks.
Listen to the crap that passes for music today and you’ll wonder why sales aren’t down much more than they are.
Boycot the sons-of-bitches. Don’t give ’em a dime. that’s the only way to retaliate against them.
Boycott “intellectual property.”
Dang. I was beginning to wonder why so many people, most of whom never posted before, were suddenly putting up comments here. A dozen comments in one day is a bit unusual. Then I looked at the stats and saw huge numbers coming in from “the raw story” web site. Hm. Didn’t even know that they did that.
In my opinion, piracy is so widely accepted because of two factors – First it is a seemingly victimless crime, second is the old “everyone else is doing it” stance. Since the RIAA is so heavy-handed and evil few people have any sympathy for the “victim” here. And it doesn’t help much that pretty much everyone out there has downloaded a song or two, your parents included. But if you are totally honest with yourself neither of these factors are the makings of a sound moral position.
Lost in this debate are the actual artists who created the content. The music industry is notorious for using what is called “spoilage” to avoid paying artists. For every 10,000 CDs pressed, they assume 1,000 will never make it to market due to destruction or loss in transport etc. and simply refuse to pay artists royalties on these presumably “lost” discs, even if all 10,000 make it safe and sound. They also refuse to pay royalties for discs sold through discount clubs like BMG. Needless to say, they use this same concept with losses to piracy. As a result, the artists are paying directly out of pocket for people to pirate their content. The more we steal, the more reasons we give these bastards to rob their artists blind.
Beeny: There’s a gaping flaw in the reasoning in your second paragraph: you assume that the music labels will steal less from the artists if we spend more to enrich the labels. I would posit that labels could double their profits and would not pay the artists a penny more–they might well get even greedier and try to grab more than they are now. But it’s a sure bet that they won’t suddenly become more generous.
You want to support artists? Buy concert tickets, or merchandise for the band. They won’t see much if any of the money you spend on recorded music, but they do see money from going on tour. At least that’s what I understand to be the case, so the NYT reported and I have heard from other sources.
I agree that downloading music from file-sharing sites is wrong; in part, that is and in the past has been my thesis. The point is, what the RIAA does is even worse. And you point out another facet to the wrongs of the RIAA. They wring the artists dry, squeezing them with outrageously imbalanced contracts and hog the profits, they turn around and sell the music they have parasitically acquired and charge outrageous markups on it, then they treat their customer base like criminals, using nuisance lawsuits/extortion to squeeze money out of them.
Stack that up against a college student downloading Nine Inch Nails, and it’s really no contest as to who they guys in the real black hats are.
I’m curious of the legality of privacy, I’ve heard that as long as you download, but not upload you are not breaking any laws. Since we have a right to data and information. However, once you make it available to the public it is as if you are offering their product for free to others. So my question is, if you just download and don’t upload, there is no problem?
BeenyWeenies/Luis,
What the labels do to the bands has nothing to do with anything. They knew exactly what the contract stated when they signed it. Those contracts have been like that for a long time and nobody held a gun to their heads to make them sign. They chose to sign because taking a small percentage of a pie enhanced by a global marketing company is much more lucrative than trying it alone.
Ironic that you mention Nine Inch Nails, since they’re one of the only (major) artists who are sticking a finger to the industry. Hell, they even put up a torrent of Year Zero on The Pirate Bay AND seeded it.
Most artists are ridiculously rich, and frankly the small bands that each of us treasures are the ones that I aim to buy the album of – for that financial support. In the UK, there’s a very prominent independent music scene and new acts are supported IF they’re any good.
So yes, I do believe that pirating Beyonce’s or Christina’s albums is a victim-less crime. Hell, I feel smug in the knowledge that pirating might be making a dent in their profits. I HOPE it does.
Ted:
Downloading and uploading both are illegal. However, it’s the uploading, of large number of songs, that the RIAA claims to go after in their lawsuits. There are no guarantees as to what they will or will not use as criteria, though. Most of what the RIAA says is propaganda, used to scare people into doing what they want. What they want most is for people to stop seeding large numbers of songs, so they claim they go after that the most in their lawsuits.
However, you have to remember that they’ve sued kids and grandparents, and even invalids who live in different states than where the RIAA says the downloading takes place. They have sued people who can’t run the software the RIAA claims they used, and have even sued people who don’t have computers. So it’s not as if they’re known for accuracy or anything.
In fact, in most if not all of their cases, the RIAA has no freakin’ clue as to whether the defendants actually downloaded or uploaded anything at all. They go by rather generalized data they can pick up off the Internet and whatever data they can squeeze out of ISPs and university servers–but all too often they’re just shooting blindly. The problem is, defending yourself in court even to the point of saying that you didn’t do anything and their data is faulty will cost more than the settlement will. And that’s the whole purpose of the $3000 settlement figure. It assures that the fewest number of people will fight back, the most number of people will pay up, and therefore more people will start thinking that it can happen to them.
But there is no surefire way to avoid being sued by the RIAA; like I said, they’ve sued people who couldn’t have downloaded or uploaded anything in the first place.
What the labels do to the bands has nothing to do with anything. They knew exactly what the contract stated when they signed it. Those contracts have been like that for a long time and nobody held a gun to their heads to make them sign. They chose to sign because taking a small percentage of a pie enhanced by a global marketing company is much more lucrative than trying it alone.
Mark: I am not an expert on this and could be wrong, but here is my understanding of how it works. The record labels act as a cartel. They act in unison. All of the major labels, the ones you have to sign with if you really want a shot at the big time, all will sell you the same contract, more or less. And if you want a shot at the big time, you have to virtually sell your soul away. Multi-decade contracts are not uncommon, and the labels virtually own you for that time. In sports and television, the law limits contract length to seven years–which is why players can go free contract, unlike the old times when they were relative slaves to the owners. The music industry is still like that today. If you want exposure, if you want to get your music distributed worth a damn, if you want the publicity which is more or less controlled by the labels, they you gotta go with the labels.
That is a gun to your head.
And the labels then own you–and they cheat you out of all manner of proceeds, just like the movie industry cheats writers and producers by ginning up the accounting to show that movies never make profits. Remember the guy who wrote Forrest Gump? He was supposed to get a cut of the profits from that movie. Despite the film making almost $700 million on a $55 million budget, the studios claim the movie lost money, so they didn’t need to pay the artist.
Fortunately, the Internet is changing things. People are able to give away their songs over the Internet without first signing their lives away to the labels–ironically, via file-sharing, which is another reason the RIAA despises the practice and wants to shut it down. If an artist gets lucky, maybe they can become popular before they sign with a major label, and therefore can dictate terms. But, if I understand things correctly, that is still rare.
You can’t say that the artists have to be content with being screwed for decades because they knew what they were signing. Maybe they did know, but if they had no choice, they had no choice.
DVO: yes, that’s why I used NIN as an example. However, I would contest the statement that “Most artists are ridiculously rich.” Maybe most big-time incredibly successful artists are ridiculously rich, but the vast majority are not. And the rich ones probably got a lot of their money by touring and other deals–likely very little of their fortunes came from CD sales.