How'd they find out that he had 2000 songs on his computer? I swear, I read the article, but I didn't see this addressed.
posted by NoMich at 10:07 AM on December 30, 2007

Scary. But hopefully not entirely true, at least according to Engadget.
posted by MsElaineous at 10:08 AM on December 30, 2007 [1 favorite]

Hmm... that headline and link really left me wanting to know about the Jeffrey Howell case. So his case is not a P2P/sharing case? How did the record labels get to his computer?

I think more links and research could have been put into this fpp.

...it turns out that Jeffery isn't actually being sued for ripping CDs, like the Washington Post and several other sources have reported, but for plain old illegal downloading.
posted by glycolized at 10:08 AM on December 30, 2007 [4 favorites]

I'm assuming that he was sued to file sharing, and they tried to add the fact that he had ripped the files to his hard disk on top of everything else.

Man I hope this goes to court. The RIAA is correct that the "personal use" copy exception has a murky foundation -- and as long as it does, the RIAA is going to push as hard as possible on it. A nice solid court ruling would be a good thing on that point.
posted by tkolar at 10:10 AM on December 30, 2007

That's bizarre. If I bought something on vinyl does that count as fair usage even though I download the thing to have on my mp3 player off of one of th P to P sites? Fair usage I think would be on my side.

Can the RIAA get anymore retarded? At this point I'm not sure how they remember to keep breathing.
posted by Skygazer at 10:16 AM on December 30, 2007 [1 favorite]

They want to make an example of somebody, to deter filesharing. They're making outlaws of everybody. The RIAA doesn't care if it's retarded. They're facing their own demise. This is an act of desperation.

In answer to your question SkyGazer, if you bought a song on vinyl and want a digital copy of it, the RIAA wants you to buy it from them in digital form. Then when they come up with some other format in the future, they want you to pay for the same music again in the same format. This has been their modus operandi for half a century, from vinyl to 8-track to cassette to CD to mp3. It's just that with mp3, this method is no longer operating, and that's affecting their profit margin.

So you can bet this'll get worse before it gets better.
posted by ZachsMind at 10:24 AM on December 30, 2007

Funny how the RIAA is implying that you shouldn't buy CDs if you want to listen to the music you buy on an ipod or on your computer. Actually having paid for a CD makes you no more legit than pirating music. It seems very difficult to figure out exactly what it is that would make the RIAA happy.
posted by clevershark at 10:33 AM on December 30, 2007

"Four years of a failed strategy has only 'created a whole market of people who specifically look to buy independent goods so as not to deal with the big record companies'..."

I'd like to take this opportunity to point out that my friend Annie Benjamin has a new album which is independently produced and features a beautiful evocative voice singing to acoustic guitar in a pleasant folk americana style. So far as I know, she's not affiliated with the Big Record Companies in any way. Share and enjoy.
posted by ZachsMind at 10:40 AM on December 30, 2007

I found the supplemental brief filed by the record companies in this case. The main issue is whether the defendant illegally shared files on Kazaa. But the judge did ask the parties to address whether a ripped mp3 copy by itself is illegal. I'm not sure why that was an issue in the case. At any rate, the record company dodged the question a little, saying that a ripped copy is illegal once it is placed in the Kazaa shared folder:

"It is undisputed that Defendant possessed unauthorized copies of Plaintiffs¡¯ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs¡¯ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant¡¯s computer on January 30, 2006...Virtually all of the sound recordings on Exhibit B are in the ¡°.mp3¡± format. ...Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife¡¯s use...The .mp3 format is a ¡°compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.¡± Napster, 239 F.3d at 1011. Once Defendant converted Plaintiffs¡¯ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs. Moreover, Defendant had no authorization to distribute Plaintiffs¡¯ copyrighted recordings from his KaZaA shared folder." Sup. Br. p. 15
posted by footnote at 10:41 AM on December 30, 2007 [5 favorites]

I've always wondered how it would go if they came after me for illegal downloading, which I may have done from time to time. I suspect it'd be a Pyrrhic victory for them in the end. They'd 'win' the legal case, damages would be assessed at some ridiculous level...but then what? They'd not be able to collect anything. I have no paychecks to garnish (I am paid in cash only), and I have no property to seize (no car, no house, no valuables), and I have no bank accounts to raid (don't particularly trust banks). Someone once said that there is nothing you can take from a man who has nothing. I do have my life, but I don't think they can take that, though I'm sure they would if they could.

The very worst they could do is perhaps damage my sterling credit rating (almost 800 these days!), though I'm not sure how they'd do it. It'd be damaged if I declared bankruptcy, obviously, but just because you owe the RIAA a quarter million dollars doesn't mean you have to declare bankruptcy. I do have a pile of platinum cards, but none carry a balance, and I don't know what they could do with them anyway. Have them revoked? Well, so what if they could do that; I don't use them anyway.

In a sense, I feel sort of invulnerable to civil suits, because there isn't any way to collect from me even should I lose. I'm not even sure I *can* be damaged in any way by any civil suit, other than eating up some of my spare time (of which I have much) going to court.

That said, I'm not foolish enough to push my luck, and I think the creators of intellectual property *do* deserve to be paid for their work. Still, I wonder sometimes how it might work out if they did ever come after me. It'd be interesting, that's for sure. And I sure as hell would not settle; they'd have to use some expensive lawyer hours on me, or just drop it.
posted by jamstigator at 10:44 AM on December 30, 2007 [1 favorite]

"How'd they find out that he had 2000 songs on his computer? I swear, I read the article, but I didn't see this addressed."

As I understand it, they have a screenshot of his Kazaa shared folder. This led a judge, earlier this year, to say they didn't need to prove anything had actually been downloaded by anyone for him to have infringed copyright.

¡°the mere presence of copyrighted works in a shared folder is enough to trigger liability.¡±
posted by Auz at 10:45 AM on December 30, 2007

Right, they are going after people who share music, not people who download music from other people who share it. It's a little confusing because Napster, and probably other p2p programs are setup to automatically share everything you download. So people get confused and think that RIAA is suing for downloading not uploading. But that's also a misconception that the RIAA wants out there. They want people to be as afraid of downloading as they are of uploading.

The RIAA has been pushing this "It's illegal to copy from CD" line for a while. But it has never been the foundation of any of their cases.
posted by delmoi at 10:55 AM on December 30, 2007

It wouldn't suprise me if the RIAA was actually trying to sell this case as "we're suing this guy for copying music from his CDs" and not "we're suing this guy for sharing music (that happens to have come from his CDS)" in order to scare people more.
posted by delmoi at 10:56 AM on December 30, 2007

"The main issue is whether the defendant illegally shared files on Kazaa. But the judge did ask the parties to address whether a ripped mp3 copy by itself is illegal. I'm not sure why that was an issue in the case."

Could be because Howell raised the defense that he had legally purchased the CDs and translated the songs to MP3 for personal use. This was never the issue, though. It was their placement in the P2P shared folder that converted them into unauthorized copies placed for public distribution.

The summary judgment really provides most of the facts in this. It's just too bad that the Washington Post and several prominent webloggers are not interested in facts.

Why let facts interrupt a good rant?
posted by shelleyp at 11:02 AM on December 30, 2007

"Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further..."

Looks like the difference between this case and countless others the RIAA has been persuing, this person refused to settle out of court, so the RIAA is as I said before, making an example of him. This isn't about justice. It's about fear.
posted by ZachsMind at 11:04 AM on December 30, 2007

They just had a case in Duluth Mn, where they (successfully) sued a woman for having illegally downloaded several songs. Of course the amount won and the lady's ability to pay don't exist on the same level of existence.

(just bought an LP that included a coupon code for a free digital download of the album, thought that was a particularly nice way to do things, you get the LP, the large art AND an indisputable legal, clean, drm free, relatively ok quality (192 k) for mp3 all in one package. Wish more modern LP released would do that, I've seen it from time to time.)
posted by edgeways at 11:05 AM on December 30, 2007

As footnote notes, the RIAA is claiming the mp3s are unauthorized when placed in a shared folder. This seems reasonable to me, but they're phrasing it in a confusing way that may lead the judge to rule that ripping itself is unauthorized, which may or may not be what they want (they would want this from a policy perspective, but probably not politically). Regardless, the articles are misleading.
posted by null terminated at 11:06 AM on December 30, 2007

Null Terminated: "This seems reasonable to me.."

HOW is that reasonable? How is filesharing any different from back when we used cassettes to share songs (beyond the obvious difference in efficiency)? It's a lot easier to convince friends (online or offline) whether or not an artist is good by letting them listen to it and decide for themselves. There's a reason people don't only send emails to each other describing in words how an artist or band sounds. The recording industry is being very unreasonable, and punishing music fans who are not profitting monetarily from filesharing.
posted by ZachsMind at 11:15 AM on December 30, 2007

HOW is that reasonable?

I only mean if the DMCA says making copyrighted works available is illegal, it's a reasonable legal argument to claim that placing music in a shared directory is when "making available" begins.

Whether this should be the law is another issue and one I definitely disagree with the RIAA about.
posted by null terminated at 11:25 AM on December 30, 2007

an important point, i think: ... if that's their position, they should pay back every penny of the taxes they've managed to get for themselves on blank recording media, which they only got in the first place because they claimed it was all being used to record commercial music and video...

They're paid everytime we buy blank recording media, and thus are more than condoning copying of purchased materials.
posted by amberglow at 11:30 AM on December 30, 2007

As footnote notes, the RIAA is claiming the mp3s are unauthorized when placed in a shared folder.

That effectively could make an entire computer also liable to be considered a "shared folder," since many don't separate their music like that, and all filesharing programs let you designate anything at all as a "shared folder".
posted by amberglow at 11:33 AM on December 30, 2007

"They're paid everytime we buy blank recording media, and thus are more than condoning copying of purchased materials."

And this is relevant to this discussion because...?
posted by shelleyp at 11:34 AM on December 30, 2007

Their take on putting it into a shared folder will be that by doing so you are usurping the distribution rights granted to the copyright owner(s). So, you're not stealing *money* from them, you're stealing *rights* from them. Whether you agree with that stance or not, that's the law; eradicating unauthorized distributors is the goal, however unachievable that goal may be.

The law grants you the right to free speech (with certain restrictions). Would you not be pissed if someone unilaterally stole that right from you? If you think the creators of intellectual property should *not* be granted the right to control distribution of their creations, then you need to lobby for a change in the laws. As a pragmatist, I'm not sure where I stand here. I want the artists to be able to have a good deal of control over their products, but technology makes that virtually impossible to actually enforce. And what's the point of unenforceable laws?

Don't get me wrong; I'm certainly no RIAA fanboy. But I can see two sides of most issues, and this one is no different. I see their point of view. They have a major problem, and I don't see any light at the end of the tunnel for them. How artists are compensated in the future (if at all) is almost certainly going to be different than it is today. I just hope when the dust settles, that *society* is not harmed by whatever changes arise. And if the artists do get screwed, that indirectly will ultimately screw the public too.

One thing that really, really needs to be changed is to go back to what our founding fathers had implemented with copyrights. A limited term, not a lifetime (or two). Mickey Mouse should not still be under copyright protection; that's just crazy. When 'limited term' means more than 75 years, something has gone awry, and the public is being screwed. The pendulum has swung too far away from what's good for We The People, to benefit They The Businesses.
posted by jamstigator at 11:34 AM on December 30, 2007

How is filesharing any different from back when we used cassettes to share songs (beyond the obvious difference in efficiency)?

It's not different at all. In fact, it was illegal then, too. ;-)
posted by Cool Papa Bell at 11:41 AM on December 30, 2007

They just had a case in Duluth Mn, where they (successfully) sued a woman for having illegally downloaded several songs.

That case -- of Jammie Thomas in Minnesota -- is discussed extensively (with sidebar illustration) in the FPP's linked Washington Post article.
posted by ericb at 11:44 AM on December 30, 2007

The biggest problem I have with the RIAA lawsuits right now, besides the inherent evil of them, is that they're going after folks who can't afford either the damages they'd have to pay in the event of losing nor the legal fees to properly fight the case in court. They're basically setting precedent by beating people who can't afford a fair trial against a team of incredibly expensive and probably dirty fighting lawyers and the massive corporation that can pay off judges to ensure victory. It's essentially trial by bank account, and it's sick. What I'd love to see happen would be for someone with the funds and determination to fight them to hold a press conference during which they explain this financial bullying I just described. While they're explaining it, there should be a screen behind them on which is projected an image of a computer screen, and it would be the very screen the person is using while they talk to the press... and they would be downloading music illegally while they talked. At the end they'd say "So there you have it. I've just downloaded music illegally in front of the press and I'm saying here that I just did it and have no remorse about it whatsoever and will continue to do it. Sue me. I'd love it if you did. I'll take it all the way to the Supreme Court because I'm the person who can afford to, and I will break your lawyers over my knee like kindling. Sue me. I fucking dare you."
posted by shmegegge at 11:45 AM on December 30, 2007 [4 favorites]

They're paid everytime we buy blank recording media, and thus are more than condoning copying of purchased materials.

I thought that was in Canada. Is there a similar blank media levy that gets paid to the recording industry here in the States?
posted by Lentrohamsanin at 11:46 AM on December 30, 2007

I thought that was in Canada. Is there a similar blank media levy that gets paid to the recording industry here in the States?

A royalty rate in the U.S. "...was established by the Fairness in Music Licensing Act of 1998. It only applies to CDs which are labeled and sold for music use; they do not apply to blank computer CDs, even though they can be (and often are) used to record or 'burn' music from the computer to CD. A similar royalty applies to stand-alone CD recorders, but not to CD burners used with computers." More on 'private copying levy' (aka blank media tax).
posted by ericb at 11:55 AM on December 30, 2007 [1 favorite]

"They're paid everytime we buy blank recording media, and thus are more than condoning copying of purchased materials."

And this is relevant to this discussion because...?

see ericb's comment above.

This set concrete legal and other precedents for:
--allowing copying of music for personal use
--their own profiting from it, establishing that they both recognize that people copy media, and that it's legal to do so.

If they want to now get an amendment to that Act to cover computer harddrives and ipods and stuff like that, let them go ahead and leave us consumers alone.
posted by amberglow at 12:47 PM on December 30, 2007

from the Wiki link:
From House Report No. 102-873(I), September 17, 1992: "In the case of home taping, the [Section 1008] exemption protects all noncommercial copying by consumers of digital and analog musical recordings" .

From House Report No. 102-780(I), August 4, 1992: "In short, the reported legislation [Section 1008] would clearly establish that consumers cannot be sued for making analog or digital audio copies for private noncommercial use".

...

Thanks to a precedent established in a 1998 lawsuit involving the Rio PMP300 player, MP3 players are deemed "computer peripherals" and are not subject to a royalty of this type in the U.S.
posted by amberglow at 12:53 PM on December 30, 2007

My guess is that the recording industry doesn't really want to argue that ripping CDs for personal use and backup is illegal. They know they'd lose in public opinion and in the courts. But the judge in this case forced them to address the question, probably out of an abundance of caution because the defendant was at that point pro se. So in some ways, the recording industries' strategy of going after the unrepresented little guy backfired on them here.
posted by footnote at 1:05 PM on December 30, 2007

This set concrete legal and other precedents for:
--allowing copying of music for personal use
--their own profiting from it, establishing that they both recognize that people copy media, and that it's legal to do so

But this is irrelevant to this discussion, is it not? I suppose it could be considered a peripheral discussion, but in this case, the RIAA isn't suing the individual because they made the digital copies. They're suing Howell for distribution of the files.

In fact there's nothing in the suit that gives one the impression that today it's the Howells, and tomorrow, it's you and me because we listen to music on our iPods.

If we spend our time fighting the demons that don't exist, we miss seeing the real heroes, fighting real battles.
posted by shelleyp at 1:09 PM on December 30, 2007

Yeah, there's got to be more to this story. The press doesn't do a great job of reporting the facts necessary to understand true court proceedings. They just get the basic facts out, but without more, it's hard to tell what's really going on with this story. It's kinda scary, though.
posted by jayzallme at 1:13 PM on December 30, 2007

The RIAA have been yammering on about "unauthorized copies" for a while now. Note that "unauthorized" does not necessarily mean "illegal"; you don't need the companies authorization fair-use copying. They don't have the power to authorize this copying - they have no grounds to prevent it. It's a tricky bit of wordplay to try to deceive the public into thinking that all copying is illegal.
posted by nowonmai at 1:37 PM on December 30, 2007

I'd venture to say that most MeFites and a substantial percentage of Internet users have downloaded something illegally at one point and if there are records, what is to stop the RIAA from going after everyone?

Their inability to successfully investigate us within the law beyond the limited realm of peer to peer sharing. How will they know if you downloaded a zillion songs from usenet, unless you're fool enough to use news.riaa.com as your server? Even more so, how on earth are they going to discover that you've swapped external drives with someone to merge collections?
posted by ROU_Xenophobe at 2:01 PM on December 30, 2007

*How is filesharing any different from back when we used cassettes to share songs (beyond the obvious difference in efficiency)?

**It's not different at all. In fact, it was illegal then, too. ;-)

And the recording industry was campaigning against that, too: "home taping is killing music" - inspiring responses from:

Billy Bragg: "capitalism is killing music" and
The Dead Kennedys: "home taping is killing music. We left this side [of the cassette] blank so you could help".
posted by Infinite Jest at 2:31 PM on December 30, 2007 [1 favorite]

Won't someone please take a bunch of public-domain mp3 files, rename to the various RIAA artist songs, and put them in your shared folder and wait for the RIAA to sue you? They you can prove that you have nothing on your machine resembling their stuff, and sue them for malicious prosecution?
posted by blue_beetle at 2:31 PM on December 30, 2007 [2 favorites]

They you can prove that you have nothing on your machine resembling their stuff, and sue them for malicious prosecution?

No, they already pay for discovery, so what they'd probably do is turn around and sue you for fraud, because you're using their copyrighted and trademarked song titles to falsely represent a different work. That would actually be a better case than most of the ones they file, I think, but I'm a bit biased...

Amberglow got it right. There is no colorable argument that ripped files infringe. That's been established since Sony and it was re-established as an exemption for radio stations later. It doesn't matter whether the judge asked for the question or he rules on it, because it would get overturned instantly if it were the basis for decision -- though it won't be. It does bode poorly for the defendant though, because the judge clearly isn't familiar with the law or the precedents, or he wouldn't need to ask.
posted by spiderwire at 3:12 PM on December 30, 2007

Two questions:

1) Why is free music sharing illegal, anyway? If I'm not profiting from it- and thus usurping the copyright protection for innovators to profit from their own work instead of me- how is it any different than playing my music with an open window? If I do play music in my car or home, and other people hear it, am I violating copyright since I didn't pay a broadcasting fee like radio stations do? If I have friends over to a party and am playing music, am I breaking the law there? If not... why not? How is sharing music via Oink different than via playing it at a party or in my car or via my Zune (see below)? Technically, can I not even lend someone a CD, or a DVD, or a book, even if I don't have a digital copy, since that's infringement?

2) What would this mean for the Zune? I.e., as I understand it the Zune has the ability to "share" music between Zune players, unless you explicitly turn off the Wifi I guess. From their site:

Wireless Zune-to-Zune sharing. Share full-length tracks of your favorite songs, albums, playlists, pictures and even audio podcasts. Listen to the full track of any song you receive up to three times, and even pass along songs you receive to other friends nearby who have a Zune. If you like a song you receive, you can easily add it to your wish list and then buy it from your PC the next time you sync.

So if I buy a CD, legally, and rip it (presumably legally, since the fair use precedent seems to be established- or even simpler, to buy a song from Microsoft's music store directly for my Zune and avoid the ripping question altogether), and then someone nearby browses my Zune and listens to that song.... am I illegally distributing files? Even if I had the Wifi disabled, just like Howell I couldn't prove or disprove that I hadn't had it enabled at some point, nor that no one had listened to the music from my Zune simply by being nearby.

• If the Zune has the potential to share and that's all that is necessary to violate the law according to the precedence trying to be set by the Howell case, then
  • Is the Zune potentially a law-breaking device by its very nature, since the potential is always there just as a screenshot of a shared folder implies that sharing could have been occurring?
    • can the RIAA or other entity sue me for $20,000 per song on my Zune, simply by owning a Zune? Even if Microsoft struck a deal with the RIAA for this DRM-limited 3-times listening filesharing over the Zune, what about a non-RIAA company? Couldn't they sue me if MS didn't have a deal with them, and that was the music I happened to share?

It seems possible that simply owning a Zune means that you could be sued for $20,000 x every song on your Zune, even if the Zune and the songs as DRM'ed digital media intended for the Zune were legally purchased.
posted by hincandenza at 3:24 PM on December 30, 2007

Incidentally, the statute amberglow is referencing above is ¡ì1008 of the Audio Home Recording Act of 1992 -- it authorizes consumers to make noncommercial copies of music they own for personal use.
posted by spiderwire at 3:24 PM on December 30, 2007

And the recording industry was campaigning against that, too: "home taping is killing music"

Yes, they were. And then there was a legal decision regarding time-shifting, paving the way for VHS and mp3s and all that. But we're not talking about time-shifting. We're talking about distribution. And as much as people want to put their fingers in their ears and go "la la la la," it's still illegal. Iffen you don't like it, change the law. Have fun storming the castle.
posted by Cool Papa Bell at 3:25 PM on December 30, 2007 [1 favorite]

Why is free music sharing illegal, anyway? If I'm not profiting from it- and thus usurping the copyright protection for innovators to profit from their own work instead of me- how is it any different than playing my music with an open window?

Short answer: if you knowingly violate a copyright, you don't have to profit from it. The test is how much you cost the copyright owners, or a statutory amount. The argument is that you're directly displacing their profits and potentially jeopardizing the market for their work.

If I do play music in my car or home, and other people hear it, am I violating copyright since I didn't pay a broadcasting fee like radio stations do?

No. You have a use right the runs with the work.

If I have friends over to a party and am playing music, am I breaking the law there? If not... why not?

Well, public home use is exempt in general, but it's also allowed under your display rights in the work. If you buy a painting, the author can't prevent you from displaying it in your gallery, though they can probably stop you from displaying it in public or showing pictures of it on TV.

How is sharing music via Oink different than via playing it at a party or in my car or via my Zune (see below)?

Basically, it's because of the rights you get from owning the work, which is different from the rights you'd get as the owner of a copyright.

Technically, can I not even lend someone a CD, or a DVD, or a book, even if I don't have a digital copy, since that's infringement?

No, the "first sale" doctrine lets you transfer a work (i.e. an embodiment of a copyright) in toto after you've legally purchased it. Copyright mainly limits reproduction/copying. This is why you can sell a book to a used book store without violating the copyright.

and then someone nearby browses my Zune and listens to that song.... am I illegally distributing files?

Short answer: No, you're exempt under a bunch of public-performance and display rights.
posted by spiderwire at 3:32 PM on December 30, 2007

One thing I don't understand about all of this is why they aren't going after audioblogs. I mean, guys like this are freely and openly making major label songs, and sometimes brand new ones, available for download, yet you never hear about the RIAA shutting down a blog of this type. Not that I want them to; on the contrary, I've got a site like that of my own. Every now and then I read stories like this and sweat a bit...if someone could explain to me why (or not) I might need to worry, I'd appreciate it.
posted by The Card Cheat at 3:33 PM on December 30, 2007

Yes, they were. And then there was a legal decision regarding time-shifting, paving the way for VHS and mp3s and all that.

No, that decision was Sony, which was about Betamax taping. Audio taping was covered years later in the AHRA.

But we're not talking about time-shifting.

The recording industry wasn't, either, when they were complaining about audio taping, because time-shifting was already recognized as permissible.

We're talking about distribution. And as much as people want to put their fingers in their ears and go "la la la la," it's still illegal.

That's really not the issue. The issue is whether Grokster, the DMCA, or CALEA are good law (no, no, and no), and whether the statutory penalties being applied to casual users are legitimate (again, no).

Iffen you don't like it, change the law. Have fun storming the castle.

::rolls eyes::
posted by spiderwire at 3:36 PM on December 30, 2007

One thing I don't understand about all of this is why they aren't going after audioblogs.

The audioblogs provide good advance PR for the industry, they would react en masse to any aggression, they're often given advance copies of the music they publish, and they react quickly to takedown requests. For those and other reasons, the fair use argument there is quite strong.
posted by spiderwire at 3:39 PM on December 30, 2007

Thanks, spiderwire. I'm not sure that makes sense to me, exactly, given the RIAA's hair-trigger sense of grievance in general, but I am glad to hear it.
posted by The Card Cheat at 3:51 PM on December 30, 2007

The RIAA cases are very interesting, in that aside from any merit their cases might have, their conduct represents the clearest and largest-scale effort so far to "exploit" (in the computer-security sense of the word) the US legal system. The US legal system is not meant to work the way they're using it, and is not meant to do what they're trying to get it to do. They're using unclear identification of defendants as a strategic asset. They're using a kind of 'tasting' approach to lawsuits, where they start to file vast numbers of lawsuits and withdraw almost all of them before a judge ever sees the case. They're desperately avoiding precedents, and attempting to withdraw cases that go against them, so they can continue to misrepresent unclear areas of law as actually being how they want it to be. They're suing at low-level, small-town courts, and (if one were to take the most adverse view) apparently choosing judges and courts based on their ignorance of mainstream culture and computer use. They're not--Beckerman has described at least two instances--declaring adverse precedents to the court. It seems their legal strategy is to skirt the edges of barratry, abuse of process, malicious prosecution and vexatious litigation as closely as possible.
posted by aeschenkarnos at 3:52 PM on December 30, 2007 [3 favorites]

I don't know why but the phrase 'vexatious litigation' sounds like something I'd want a woman to do me. While wearing a black leather outfit.
posted by jamstigator at 4:13 PM on December 30, 2007

I dunno if that's a good idea jamstigator, they look like a whole bunch of trouble to me. If you like the look of the litigation on a woman, I suggest you go looking for one who's into champerty instead. :)
posted by aeschenkarnos at 4:23 PM on December 30, 2007

spider wire: No, the "first sale" doctrine lets you transfer a work (i.e. an embodiment of a copyright) in toto after you've legally purchased it. Copyright mainly limits reproduction/copying. This is why you can sell a book to a used book store without violating the copyright.

I wasn't talking about selling it, but about lending it. You're saying the same thing applies; provided I don't have another copy when I lend it (or I guess, that the other copy such as .mp3's goes unused while it's lent) then I'm transferring it with the expectation it'll be transferred back. So if I rip my CD's to .mp3, and only listen that way... but then lend my CD to a friend which he doesn't rip but does listen to... do I have to delete my .mp3's while he has the CD physically on his person? If one of the songs comes on in a random shuffle while he has the physical copy of my CD, do I get sued for $20,000? If not... why not? And how then is this different than BitTorrent?

spider wire: No. You have a use right the runs with the work.
[...]
Well, public home use is exempt in general, but it's also allowed under your display rights in the work. If you buy a painting, the author can't prevent you from displaying it in your gallery, though they can probably stop you from displaying it in public or showing pictures of it on TV.
[...]
Basically, it's because of the rights you get from owning the work, which is different from the rights you'd get as the owner of a copyright.
[...]
Short answer: No, you're exempt under a bunch of public-performance and display rights.

See, this is where I'm not getting the fine-toothed comb, or how you are separating these various statements. I can display a painting in my gallery, but not in "public"? I can play music in my car loud enough for people around to hear it, but not in a more "in public" way? I can play it at home in some ways, and not others. How is, for example, sharing it via Kazaa or BitTorrent different than sharing it via the Zune, or playing it for friends on your home stereo? If I call a friend while music is playing in the background, am I now inadvertently violating these performance rights I get as the owner of the work and not the copyright?

I think the heart of my question is "Aren't these allowed public performances laws that date from prior to the ability to transfer the music via technology to a large number of people?".

Radio is well defined at this point, and there are sizeable fees to broadcast on the radio. In addition, portable broadband- including the Zune- is more and more prevalent. If one person started a music sharing site such that anyone could listen to any of it streaming, for free, any time... and they paid the radio broadcast rights... then isn't that simply time-shifted radio (it is, actually, what www.kexp.org does, since you can listen to an archive of their radio broadcasts for a few weeks back)? I.e., if one plucky millionaire set up such a site, wouldn't everyone be able to legally listen to the stream of on-demand content, simply for the cost of said millionaire the yearly radio fees? What if that site then charged a fee to its users, just as you have to pay to hear Sirius or XM even though it's "radio"? Why, other than "That's not what the dying RIAA wants", is there a difference?

I ask because most music listeners who download, download not to play a song over and over, but to add to a collection where they can have whatever they want at their fingertips- essentially, like their own personal "all-request weekend" radio station. If technology allows such a radio station to exist where one couldn't have before... why is that bad? If I could replace my 80GB iPod with a 4GB wifi device where I can pick whatever song or playlist I like and stream it to my device as I walk, drive, or in a coffeeshop... do I ever need to buy a piece of media again?
posted by hincandenza at 4:31 PM on December 30, 2007

Actually, thanks for bringing that up ... there's an interesting article here by Prof Anthony Sebok of Brooklyn Law School, linked from the wikipedia article on champerty. Dates from 2001 so doesn't address the conduct of the RIAA at all, but he says some interesting things. The concept of lawsuits conducted as a source of profit, rather than to redress a wrong, is something that courts generally have been attempting to discourage for as long as they have existed. The RIAA's conduct is awfully close to being a business model of litigation conducted for profit, using a figleaf of a wrong to redress.
posted by aeschenkarnos at 4:36 PM on December 30, 2007

That's really not the issue. The issue is whether Grokster, the DMCA, or CALEA are good law (no, no, and no), and whether the statutory penalties being applied to casual users are legitimate (again, no).

What do you mean by "good law" and "legitimate" penalties? Grokster is binding precedent, and some filesharing is actually illegal under the current state of the law.

It seems their legal strategy is to skirt the edges of barratry, abuse of process, malicious prosecution and vexatious litigation as closely as possible.

Eh, it'd be a good strategy put to other purposes, so I'd be hesistant to make procedural complaints. The other side needs to step up to the bat and be equally as aggressive. The defendant in Howell should have gotten pro bono counsel much sooner -- EFF etc. need to do a better job of catching these cases as soon as they're filed and providing assistance.
posted by footnote at 4:37 PM on December 30, 2007

Eh, it'd be a good strategy put to other purposes, so I'd be hesistant to make procedural complaints.

I think it may be too good a strategy, ie, an exploit. It seems to require a certain set of circumstances to do it, ie, a private tort which almost every human being and most corporations in the jurisdiction to some extent infringe, so it may be confined to IP law for now. But now that the strategy has been demonstrated as possible, it may be put to other purposes, and I'm pretty sure that's a bad thing for everyone except the lawyers of the nominal plaintiffs.
posted by aeschenkarnos at 4:49 PM on December 30, 2007

See, this is where I'm not getting the fine-toothed comb, or how you are separating these various statements. I can display a painting in my gallery, but not in "public"?

Oops. I meant to say "private." I'm sorry. The gallery display is different because it's a pictorial work. You can perform a sound recording you own in private, but not in public.

Will get to the rest in a moment, hopefully.
posted by spiderwire at 4:51 PM on December 30, 2007

CoolPapaBell: Yes, they were. And then there was a legal decision regarding time-shifting, paving the way for VHS and mp3s and all that. But we're not talking about time-shifting. We're talking about distribution.

Yeah, I wasn't arguing with you, just expanding on your point.
posted by Infinite Jest at 4:55 PM on December 30, 2007

You can perform a sound recording you own in private, but not in public.

But it's easy to make a private sound performance public: just turn up the volume enough. At some volume, at some range, the recording will become identifiable. Below that volume and outside that range, it's discernable noise, but is it a "performance"?
posted by aeschenkarnos at 5:01 PM on December 30, 2007

So if I rip my CD's to .mp3, and only listen that way... but then lend my CD to a friend which he doesn't rip but does listen to... do I have to delete my .mp3's while he has the CD physically on his person? If one of the songs comes on in a random shuffle while he has the physical copy of my CD, do I get sued for $20,000? If not... why not? And how then is this different than BitTorrent?

Tricky question, but strictly speaking, I believe the answer is that you cannot retain your copies, no. ¡ì109(b) of the Copyright Act prohibits rental of phonorecords and software, so while the law is generally tolerant of archival copies, you don't have the right to "lend" the copyright to someone else, since you only own an embodiment of it. You can only transfer the embodiment.

I can display a painting in my gallery, but not in "public"?

Right. You couldn't, e.g., broadcast the image over video.

I can play music in my car loud enough for people around to hear it, but not in a more "in public" way?

Under some circumstances, no. The question would be where you cross the line from "private" to "public" use and whether you have a fair use defense, I believe. Probably the fair use defense protects you.

I can play it at home in some ways, and not others.

Yes. For example, you can invite your friends over for a movie-watching party, but you can't project the movie on the side of your house for the neighborhood to watch.

How is, for example, sharing it via Kazaa or BitTorrent different than sharing it via the Zune, or playing it for friends on your home stereo?

In the former example, you're facilitating copying, in theory. In the latter examples, you're merely allowing people to listen privately. In theory, they could copy the broadcast (say if they'd hacked their Zune), but you probably wouldn't be liable for that if you didn't know.

If I call a friend while music is playing in the background, am I now inadvertently violating these performance rights I get as the owner of the work and not the copyright?

No, because that's a private performance. If you had the music playing in the background as you recorded a YouTube video or did a radio show, that would be more problematic.

I think the heart of my question is "Aren't these allowed public performances laws that date from prior to the ability to transfer the music via technology to a large number of people?".

Yes. They've been modified significantly in the last few decades. For example, they had to add an exemption allowing digital retransmission for broadcasters at one point.

Technically, all of these laws date back to the Constitution, and before that the Statute of Anne, etc., so that's not really out of the ordinary. The Congressional authority is defined practically -- it requires the legislature to seek an optimal balance, so it has to change with technology.

If one person started a music sharing site such that anyone could listen to any of it streaming, for free, any time... and they paid the radio broadcast rights... then isn't that simply time-shifted radio

Short answer: yes. In general, I ¡ì114 of the Copyright Act provides various restrictions on digital retransmission that govern that. It creates a compulsory license mechanism and a royalty that's adjusted periodically. Compulsory license just means that there's a statutorily-set price for a given form of license.

I.e., if one plucky millionaire set up such a site, wouldn't everyone be able to legally listen to the stream of on-demand content, simply for the cost of said millionaire the yearly radio fees?

IIRC the statutory license rate is a percentage-based royalty fee, so, yes, but the millionaire wouldn't just pay a one-time fee.

I ask because most music listeners who download, download not to play a song over and over, but to add to a collection where they can have whatever they want at their fingertips- essentially, like their own personal "all-request weekend" radio station. If technology allows such a radio station to exist where one couldn't have before... why is that bad?

If you can find a way to broadcast on demand, you can probably do that, but (a) it'd be a waste of bandwidth, and your competitors could do it without wasting bandwidth by using DRM like Apple does, and (b) your royalty fee would still be at the mercy of the record companies, it'd be recurring, and they have a lot of power to monkey with it.

As a practical reason, that'd be "bad" (inefficient) because it's just a waste of airspace. Storage is cheap, spectrum isn't, and people listen to the same stuff, as you say.
posted by spiderwire at 5:17 PM on December 30, 2007

But it's easy to make a private sound performance public: just turn up the volume enough. At some volume, at some range, the recording will become identifiable. Below that volume and outside that range, it's discernable noise, but is it a "performance"?

It depends on the class of work, but the legal test is outlined in ¡ì101 of the Copyright Act:

To perform or display a work "publicly" means¡ª
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public.

It would just be a question of fact for the trial court to decide. I imagine that you'd have to worry more about noise regulations than copyright infringement, unless you did this on a regular basis. The secondary question in all these cases are whether there's actual damages. The RIAA gets around this by applying ridiculous statutory penalties, but I'm not certain that those would apply outside of the "facilitating sharing" context.
posted by spiderwire at 5:21 PM on December 30, 2007

RIAA is dying. It is a painful death to watch, and it is quite public, but it is also quite apparent to all involved. Any business that atacks its customers is dead. For the RIAA it is that plus so much more. No one will mourn their passing. Good riddance.
posted by caddis at 5:25 PM on December 30, 2007

As a practical reason, that'd be "bad" (inefficient) because it's just a waste of airspace. Storage is cheap, spectrum isn't, and people listen to the same stuff, as you say.

This is a problem with streaming video and audio generally, IMO - the providers create a rod for their own backs by demanding each viewer re-download each file each time.
posted by aeschenkarnos at 5:25 PM on December 30, 2007

What do you mean by "good law" and "legitimate" penalties? Grokster is binding precedent, and some filesharing is actually illegal under the current state of the law.

I mean that Grokster is a bad decision. "Binding precedent" has nothing to do with "good law." Just because Plessy and Lochner were "binding" doesn't mean they were good decisions. The rationale in Grokster is "they named their company to sound like Napter and Napster is bad." Seriously. That's it. Kazaa broke the law, and the content owners used that fuckup to catch Grokster, even though Grokster hadn't done anything illegal. Grokster concerns secondary liability, not filesharing, so that's not relevant to the issue.

The DMCA and CALEA have many problems, but for the most part they're just bad laws. I don't really feel like getting into the litany of ridiculousness there, because I'd like to sleep tonight.
posted by spiderwire at 5:30 PM on December 30, 2007

How will they know if you downloaded a zillion songs from usenet, unless you're fool enough to use news.riaa.com as your server?

Nice job. You just broke the first and second rules of usenet.
posted by Civil_Disobedient at 5:31 PM on December 30, 2007

I mean that Grokster is a bad decision. "Binding precedent" has nothing to do with "good law."

Oh, ok. Just so you know, usually when practicing lawyers say "good law" they mean "binding precedent in this jurisdiction."
posted by footnote at 5:50 PM on December 30, 2007

Oh, ok. Just so you know, usually when practicing lawyers say "good law" they mean "binding precedent in this jurisdiction."

Oh, please. I hate to burst your patronizing little bubble, but that reading doesn't make sense in the context of the original reference to two statutes and a court decision. If that was the point you were trying to make, your response was wrong.

Regardless, Grokster isn't "good law" in either the professional or lay sense, because it doesn't stand for a concrete proposition. "Good law" isn't 1:1 equivalent to "binding precedent"; it means that the case provides dependable guidance, which Grokster doesn't.
posted by spiderwire at 6:04 PM on December 30, 2007

I think the lesson we've all learned from the RIAA is that we should steal our music from pretty much anyone but Kazaa. Thank you, RIAA.
posted by katillathehun at 7:07 PM on December 30, 2007

Yeah, do they ever sue people on non-public ways of downloading? OR do they just go after the lower-hanging fruit?
posted by smackfu at 8:24 PM on December 30, 2007

Shared folder? Shared where?

\\hostname\C$

Windows XP Professional likes to share your folders by default. Not saying this invalidates the case, since we're generally talking about P2P applications, but "Shared Folder" and "Voluntary" are not a given even with the OS itself.

Hidden administrative shares that are created by the computer (such as ADMIN$ and C$) can be deleted, but the computer re-creates them after you stop and restart the Server service or restart your computer. Hidden shares that are created by users can be deleted, and they are not re-created after you restart your computer. Microsoft Windows XP Home Edition does not create hidden administrative shares.
posted by VulcanMike at 10:10 PM on December 30, 2007

That's a stretch.
posted by smackfu at 10:50 PM on December 30, 2007

Oh, please. I hate to burst your patronizing little bubble

Erm, ok then. As you were.
posted by footnote at 7:10 AM on December 31, 2007

It occurs to me that this is where the old-school Conservatives and the Libertarians split. Considering that Liberals would join the Libertarians and support the file-sharers, we see who has the real power in the Republican coalition.

It also shows how moderate to conservative the Democrats have become.
posted by JKevinKing at 7:37 AM on December 31, 2007

related and important point (about a NYT article on Oregon students sharing): Unauthorized Duplications Are Not "Piracy" --... it appears as though the students had shared music files, which they may have purchased, among themselves. It is not evident that this is violating any law (last I checked, I can lend a CD to a friend), even if the recording industry doesn't like it. ...
posted by amberglow at 4:55 PM on January 2, 2008

now the RIAA says they misspoke in court
posted by amberglow at 4:58 PM on January 5, 2008

Washington Post says it 'incorrectly' reported RIAA story

¡°The Washington Post has backed off a story accusing the recording industry of trying to criminalize ripping CDs to a computer.

The Post issued a correction Saturday, more than a week after the paper triggered a wave of media coverage by claiming that the Recording Industry Association of America (RIAA) was trying to outlaw the very common practice of copying music from a CD onto a computer or iPod.

A Dec. 30 Style and Arts column incorrectly said that the recording industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer,¡¯ the Post's correction reads. ¡®In a copyright infringement lawsuit the industry's lawyer argued that the actions of an Arizona man, the defendant were illegal because the songs were located in a shared folder on his computer for distribution on a peer-to-peer network.¡¯

The reference to ¡®shared folder¡¯ was key. In the Post's story, the writer quoted from a legal brief filed by the RIAA in the case of Jeffrey Howell, an Arizona man accused by recording companies of illegal file sharing. The author of the Post's story said that the RIAA maintained ¡®that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.¡¯

But anyone reading the brief will see that in all such references, the RIAA was arguing that it was illegal for someone to make copies and then distribute those copies over file-sharing networks.

Soon after the story appeared, several high-profile blogs, including Techdirt, Gizmodo, and Engadget, wrote that something was amiss.

Mike Masnick at Techdirt noted that other previous stories about the RIAA's legal brief had been debunked.

¡®Unfortunately (and for reasons unclear to me), the Washington Post has revived the story,¡¯ Masnick wrote on Jan. 2. ¡®That's simply not true.¡¯

Nonetheless, dozens of other media sites repeated the Post's claims. The Web was filled with headlines like ¡®RIAA Goes After 'Personal Use' Doctrine,¡¯ ¡®We're All Thieves to the RIAA,¡¯ and ¡®RIAA Equates Ripping With Stealing.¡¯

In response to the Post's decision to correct the story, the RIAA issued a brief statement on Monday: ¡®We appreciate that the Washington Post cleared the record.¡¯¡±

posted by ericb at 5:08 PM on January 7, 2008