The last time I blogged about the Recording Industry Association of America (RIAA), I called out Washington Post reporter Marc Fisher for neglecting to read a legal brief that was the subject of one of his stories. (See Washington Post Gets It Wrong)
According to Fisher, the RIAA contended in a brief filed in Atlantic Recording Corporation v. Pamela and Jeffrey Howell that copying your own CD to your computer hard drive was illegal. There is some debate whether the RIAA holds this view, but it did not make this assertion in the brief. While it may seem like a minor point, people reading Fisher’s story — and relying on his reporting — were bound to get the wrong impression about the issue before the court.
The point wasn’t so much that Fisher didn’t read the brief before writing the story. It’s that he attributed statements to the document that weren’t in the document. The Post eventually issued a correction. Too bad fun things like that don’t happen every day.
RIAA Update
The RIAA, around since 1952, is fond of filing lawsuits against regular old private citizens for what it considers illegal downloading.
The main issue comes down to this: Does placing copyrighted files in a shared peer-to-peer (P2P) network folder on a computer constitute a violation of the Copyright Act, whether or not the user intends to share or actually shares the files with others?
The RIAA says YES, it does constitute a violation. By merely placing copyrighted files in a P2P folder, the user has made the files available for distribution.
The RIAA alleged in Howell that placing files in a shared P2P folder made the files “available” for distribution, in violation of copyright. In Elektra v. Barker (25-page PDF), the RIAA alleged that Tenise Barker (misspelled as “Denise” in the opinion) infringed copyright by distributing and/or making available for distribution 611 music files (!) in a shared Kazaa folder. Barker filed a motion to dismiss, which the court denied on Monday. (Billboard)
Although the court did not rule in Barker’s favor, it said it was not prepared to rule that making music files available to others was copyright infringement. The court denied Barker’s motion to dismiss, because the RIAA “adequately alleged that, in addition to making Plaintiffs’ works available, Defendant distributed Plaintiffs’ copyrighted works. Thus, dismissal is not appropriate at this stage.” (emphasis added)
In other words, the RIAA adequately alleged that Barker actually distributed (or transferred) the files and not merely made them available for distribution. However, the court provided a blueprint for how to allege copyright infringement under a “make available” claim, citing an argument made by the Motion Picture Association of America. The RIAA has 30 days to amend the complaint.
What Say I?
“The new tech boom’s fighting the RIAA/Got the kids downloading and refusing to pay/Cause they don’t like the music that the radio plays” – Hanson, “Take Our Chances”
I’m torn. On the one hand, I understand why recording artists need to be protected by groups like the RIAA. It’s heartbreaking when someone steals your work. Many artists grant people a license to use their work under certain conditions, and under Fair Use, people can reproduce copyrighted works, with certain limitations.
On the other hand, copyright can impede the free flow of information. This is one reason Larry Lessig founded Creative Commons, which helps creators grant good-faith, customized licenses for use of the work. Many bloggers license their work under Creative Commons.
Some recording artists don’t mind when fans share their music. Others even encourage fans to download and share music without paying for it and to record and share recordings of live shows. But many others do mind. Creators have a right to be compensated for use of their creation. It’s up to them whether they want to give it away.
On the third hand, artists and the RIAA are fighting a losing battle. People will not stop downloading and sharing music. They’ll just find a more covert way to do it. Illegal downloading is here to stay. Artists should adapt to digital technology by:
- Encouraging fans to buy music in exchange for something more.
Build interactive Web 2.0-style web sites and ask fans to contribute comments and ideas. Develop strong and interactive fan clubs and give fans an incentive to join street teams and buy merchandise and attend multiple shows in one tour. And tour a lot.
- Adopting a Creative Commons approach to music and grant some rights to the public while retaining others.
This approach probably is better for independent artists. The RIAA is a whole other story. It represents record companies, not artists per se. I don’t believe the RIAA cares much about artists, just the money-ed, record label bottom line. (I mean, fining people $200,000+ for sharing music? It’s ridiculous.) You don’t need to charge or sue users for every single music file download. Encourage people to share music. Sharing means exposure, and exposure produces more fans (and haters who also give you free publicity).
- Retaining publishing rights, so you’ll get paid whenever “someone covers, samples, or licenses your song for a movie or commercial.” Veteran rocker David Byrne calls this an artist’s pension. (Source)
Law, Order, and Respect
I like knowing that federal law protects what I create on this blog and elsewhere, and the federal Constitution gives me the right to express it. The law and the Constitution give you and other bloggers, writers, musicians, painters, etc., these same rights.
Remember that next time you infringe on someone’s copyright, whatever your excuse. (That goes for you, too, self.)
Update: Others writing/blogging:
- News.com: Judge to RIAA: You can’t sue over songs ‘made available’ via P2P
- Audioholics: Judge to RIAA: You Have Burden of Proof
- Recording Industry vs. The People (blogger and lawyer Ray Beckerman represents Tenise Barker, mentioned above)
