Posted by: zycos | October 10, 2007

WHICH IS MORE ILLEGAL? COPYING MUSIC OR “MAKING IT AVAILABLE” FOR COPYING?

It was announced this week the RIAA (Recording Industry Ass of America) had won their lawsuit against a Minnesota mother of two in a file sharing arrangement using KAZAA.

The RIAA coerced separate settlements with (the parents of) a 12 year old child and an 80 year old grandmother for ‘illegal’ music file sharing. (A bit odd since according to Wikipedia, the RIAA started out as “an organization formed in 1952 primarily to administer… a technical standard of frequency response applied to vinyl records during manufacturing and playback.” – I assume their self appointed omnipotent status evolved over time as they currently “participate in the collection, administration and distribution of music licenses and royalties.” and also “The association is responsible for certifying gold and platinum albums and singles in the USA.)

This woman was alleged to have put copies of 24 songs on her computer in a shared folder where other KAZAA users could access and copy the songs to their own computers.

In a strange complaint (seems to me) the plaintiffs were not suing her for illegally copying music but pursued their case on the basis she made the 24 songs “available for copying” and in doing so, caused great monetary loss to the labels and artists the RIAA supposedly represents. (I say ‘supposedly’ because there has been some past questionable validity over their claimed membership, specifically who is and who isn’t represented by the RIAA. See this Wikipedia link about the RIAA.)

The court found the woman guilty as charged and slapped her with almost a quarter of a million dollar lawsuit in favor of the RIAA. Not at all surprising, since today’s courts seem to favor corporate rights with its deep pockets over the limited funded private citizen rights. (Just goes to show you, we have the best judicial system money can buy.)

Anyway, ignoring the fact that plaintiffs couldn’t account for any direct loss against the woman or whether or not any award was justified, the ruling, if allowed to stand, represents a warning shot to millions of otherwise law abiding people: When it comes to copyright law, the courts will almost always find in favor of the plaintiff.

And this latest round, mind you, is not for copying music but simply for making it “available for copying.”

My question is this. Shouldn’t the RIAA have gone after the people who actually copied the music from this woman’s computer? Didn’t they commit the actual crime of stealing by copying what they found on her system? Did she commit any crime by putting this music on her personal computer?

The RIAA argued she did so in a knowing attempt to make the music available for copying. They contended there couldn’t be any other legitimate reason for her doing so.

I don’t know. Could she have simply wanted her music accessible for listening pleasure wherever she happened to be? Isn’t that what the whole concept of portable music is?

Did she, in fact, even know the music was in a shared folder or could she have mistakenly put it there? Is it possible she wasn’t as sophisticated a user as the RIAA wants her portrayed or simply made a mistake in understanding how KAZAA worked?

Did she even put the music on her computer or was it someone else? Maybe one of her kids?

Absent any hard evidence, it all seems far too circumstantial and way too convenient for the case bulldogged through by the RIAA and its strong arm tactics.

She is appealing her case. I pray the Appellate Court shows more judicial resolve than the lower Minnesota court. If not, anyone who makes their legally owned music available to anyone else could be subject in the next RIAA lawsuit.

This ludicrous ruling extends far beyond the internet and file sharing. And whether you think all music should be free or paid for, isn’t the point.

(I personally think the idea of taking someone else’s work for your own use (or others) without permission is like stealing someone’s clock radio so you can get up in the morning. Both uses may not be for any profit but still constitute taking something you don’t rightfully own.)

But imagine lending a music CD to a friend who rips some tracks off it and burns his own CD. According to this lawsuit, you are primarily liable for restitution to the RIAA, not your friend, because you made the music “available for copying.”

So, what does “available for copying” exactly mean? And how far does it extend?

Could a radio station be accused of making it’s music “available for copying” because they broadcast music over the public airwaves where anyone can record their favorite songs? Sure they license their use but aren’t they, in fact, making music “available for copying?”

What happens if you leave your mp3 device lying on the table at the library and someone comes along and steals it, copying all the music from it onto their own device? By your own negligence, didn’t you just happen to make your music “available for copying?”

Shouldn’t the RIAA wrath be directed at the people who do the actual copying of the music instead of the ones allegedly making it”available for copying?”

And doesn’t the premise of suing someone for something that might happen over someone who actually does something illegal send cold chills up your spine. It should.

More and more laws in the U.S. are being written based on fear of suspicion rather than actual commission of a crime. In other words, they’re more worried about what you might do, than what you’ve actually done.

There are already plenty of laws dealing with someone who commits a criminal offense but to make it a criminal offense absent any act, is a knee jerk reaction representative of a government living in fear of its people. And predatory corporations like the RIAA are all too ready to use their wealth and power to capitalize on it.

If the goal of any terrorist organization is to cause someone to live in constant fear, we can stop the so-called war on terror because the terrorists have, indeed, won.

So too, with the RIAA. They figure if they score a few, very public victories with large, scary awards against individuals, the rest will fall like dominoes. Just the fear of being liable for making music “available for copying” will stop everyone from copying music. Nothing could be more delusional or further from the truth.

The RIAA seriously needs to rethink itself as an organization and stop trying to intimidate and terrorize the public into submitting to its archaic model. And the music industry seriously needs to rethink having an organization like the RIAA, representing their best image and interests.

If you still don’t think the RIAA a bully, consider this: There are real pirates out there and it’s not the individual users who pose any real threat to music industry.

The real pirates are professional counterfeiters, foreign and domestic. The ones with mass duplication facilities set up to make thousands of copies per hour, feeding their global distribution networks twenty four hours a day, every day of every year, non-stop. The big boys, who in one day, flood the market with more counterfeit copies of music and movies than all the individuals combined, could accomplish in a year.

And make no mistake. These operations are the ones whose only motivation is driven by sheer profit (kind of like the RIAA.) Unlike friends sharing music CD’s or copying an occasional movie from satellite, these guys are seriously in the business of stealing and distributing intellectual properties for profit.

But it’s easier (and safer, literally) to appear more responsive and powerful by going after individuals who simply make their private music collections “available for copying.”

And it’s true, the pirates wouldn’t be in business if it weren’t for hordes of ready and waiting black market consumers. But how many of these people have you met or known in your lifetime? In this country? Really? And how many counterfeit albums do you possess or buy on a regular basis, if ever? To these questions, most readers will probably answer, “zero”

Or is the internet making it too easy for us to become criminals? Is convenience the only thing standing in the way of us all becoming murderers, rapists and robbers? The RIAA would have you believe that. Evidently they’ve convinced our court system, also.

The truth is the 98% of us are law abiding people in this country, being hunted like criminals because a giant industry can’t figure out how to effectively stop the 2% who are true criminals.

Does anybody really need/want an organization like the RIAA infringing on our private lives, spying on our internet usage and hunting us down like … well, like criminals? I expect all you self-righteous types to jump on that one, but hear me out.

Just because a large industry builds a powerful lobbying organization, successfully getting legislation passed making it a crime to wear yellow shirts, doesn’t make wearing a yellow shirt a crime. Not a real one, anyway.

It’ll appear real. And real enough, they’ll hunt you down under this color of law for the criminal they’ve literally made you. They’ll make you pay exorbitant fines, threatening unreasonable imprisonment as a public example to thwart any other free thinkers out there considering same. Kind of like the old practice of putting your enemy’s heads around town to scare off all other bad guys.

Now I’ve been kind of hard on my own industry but not as hard as we all should be on the RIAA. After all, if you live by the sword….

But unlike the RIAA, I offer a workable, sensible solution. One that might serve the computer software industry as well. (Hear that Microsoft, Adobe, et al?)

To the record companies and movie studios, where the shoe fits:

If you want to reduce illegal song copying at all levels, instantly improve your image by distancing yourselves from the RIAA at any cost, that’s number one.

Two, you should stop wasting money trying to develop the perfect copy protection scheme because it doesn’t exist. (For verification, consult with one of the professional pirates. It’s their business to defeat any copy protection your security experts could ever devise.. or you could just ask any 14 year old hacker ;<) Put the realized savings into lowering the retail price of your CD/DVD titles. I know that sounds almost sacrilegious to you but please, read on.

You know the media cost of a CD/DVD is negligible when produced by the millions and most tech savvy consumers know it, too. Even the non-techies are having their suspicions.
And most everyone knows it takes a helluva lot more people, resources and expense to make a movie than any music album. Yet, your CD’s and DVD’s are almost universally priced between $16 to $22 and up. This seems so much a contrived pricing arrangement as to be without any merit and seriously lacking in perceived value among consumers.

Moreover, the recording artists along with their publishers share only 9.1 cents per song on an album, appearing that you pocket the lion’s share of the grossly inflated price structure. (and you’ve even figured a way to reduce that pittance to your gain.)

In short, your consumers have no confidence in your valuation. When you’re Phillips Petroleum or Mobil Oil, it’s not a issue because people have to have your product at whatever price you set. When it’s about buying a non-necessity item, especially where people have other options available, price becomes the determinate factor… sometimes, even over quality.

By bringing CD/DVD prices into a more proportionate and believable realm, two things will happen. The most important being to undermine the profit incentive of the professional black marketeers. No smart counterfeiter is going to invest hundreds of thousands of dollars in a distribution operation for any product with thin or non-existent margins.

Bring the cost of a CD or DVD down to, say $8.95 or less. Around this price point consumers will have less reason to copy a title or buy a bootleg. For only a few dollars more they can have the full blown, legitimate title and sleep better at night in the bargain.

Why? It’s human nature. Nobody wants to think of themselves as dishonest. A lot of people, however, have a point at which they’ll cross the line, if the motivation proves high enough. The easier the rationalization in doing so, the more willing and justified the action. Kind of like why locks are used… to keep the honest people honest.

Lowering the price of a CD or DVD product will strengthen the point between whether one chooses to see himself as an honest person or a petty crook. The number of customers who prefer to own a legitimate release with all the features, will increase considerably.

In fact, I’d bet even at $8.95, a larger number of people will buy a first release movie than would copy it or buy it on the black market. Again, because most folks prefer to think of themselves as being honest (most of the time, anyway.)

And for music CD’s. How many times have we all been burned buying an $18 album only to find one or maybe two songs, to our liking? That speaks more to artist and label accountability for innovative and entertaining content. Qualities that are rarely seen of late.

I’ll suggest a music CD as being more critical in terms of content quality than a movie DVD. Most of the time we have an idea what a movie is about, maybe having seen it in a theater and then purchase a copy for home viewing. But listening to a whole music CD before purchase is seldom available except on the internet. That’s why the 99 cent downloads and custom mix CD’s have proven so popular.

Today’s legal DVD’s are filled with mindless crap promoted as “Bonus Features” which should be more appropriately called “Boner Features.” And like the broken promises of cable television, we now have to endure commercials and endless previews on our legitimately purchased DVD’s. That’s almost reason enough to drive someone to make feature-only copies.

There’s the answer in a nutshell. Improve the creative quality of the content and lower the retail cost. You’ll see sales rise and illegal duplication and piracy diminish. The perceived need or place for an adversarial organization like the RIAA will cease to exist. The money you’ll save on copy protection schemes and department staffing will help offset the price reduction. Sales volume will more than make up for lower retail pricing.

Most importantly, you’ll have more happy, honest and loyal customers gladly paying a fair price for a legitimate product. Gone will be the combative approach the RIAA takes towards your potential and valued customers. Seems like a win-win situation to me.

If the RIAA should continue to exist, let them focus their efforts on the real criminals who counterfeit titles by the tens of thousands. If they’re not up to the task, then all the more reason to disband the RIAA.

By the way, I am a published independent music producer (ASCAP) as well as an award winning video producer. I do not agree nor believe in the tactics employed by the RIAA, just for the record. (No pun intended.)

It’s a whole new world requiring a whole new approach. What worked yesterday doesn’t work today. What works today may not work tomorrow. Embrace the change and you’ll profit from it. Resist the change and you’ll eventually go the way of your old, archaic thinking.

For my 9.1 cents, I would prefer the latter fate for the RIAA and any other organizations insistent on maintaining a stranglehold against technology.

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Responses

  1. […] unknown wrote an interesting post today onHere’s a quick excerptI’m betting there are a larger number of people who will pay $8.95 for a first release movie than there are those who would copy it or buy it on the black market, saving only a buck or two. If for no other reason than most people like … […]

  2. Blog feeds about the changing worlds of technology and music.


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