Motley Fool Says RIAA Hitting a Brick Wall

NewYorkCountryLawyer writes "The Motley Fool business site says that the RIAA's litigation campaign is in the end game. Monday it reported that 'the music industry's lawsuit crusade against defenseless college students and housewives appears to have hit the skids,' predicting that the RIAA's tactics are 'all about to change.' Today the Fool confirms that 'the change is happening in Internet time, which is somewhere between "instantly" and "yesterday,"' noting that the RIAA's abandonment of its 'making available' theory shows that the end is near. And this is before the RIAA faces its first jury trial, set to begin Oct. 2 in Duluth."

Comments

Re:Motley Fool... RIAA

[Mark_in_Brazil]

Takes a fool to know another, perhaps?

Yes and no. The RIAA is a bunch of small-f fools. The Motley Fool strives to be a bunch of Big-F Fools.

From the linked page:

Motley Fool was founded in 1993 by brothers David and Tom Gardner. Our name derives from Elizabethan drama, where only the court jester (the "Fool") could tell the King the truth without getting his head lopped off. We're dedicated to educating, amusing, and enriching individuals in search of the truth.

A big-F Fool is one who sees, among other things, people being small-f fools, and isn't afraid to say it.

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[account_deleted]

Comment removed based on user account deletion

Precedent

[sexybomber]

So is the 2 October jury trial going to be a one-time thing, or will it set some sort of precedent? I mean, once one case goes to jury trial, do all subsequent cases also have to be heard by a jury?

After all, all these cases are pretty much identical:

RIAA: ZOMG PIRACY! YOU GETTIN' SUED, FOO!
Plaintiff: Don't sue! Here's some money to make you go away.
RIAA: Okay.

(or)

RIAA: ZOMG PIRACY! YOU GETTIN' SUED, FOO!
Plaintiff: What? Fsck that! We're going to court!
Judge: Court is now in session.
RIAA: We're going to drop the case, because our scare tactics have no legal merit.

They've created a pirate culture

[astrashe]

The Motley Fool points out that most people are honest, and want to pay for their music, so long as they can get what they want.

I think that's mostly true, but that it's far less true than it would have been if the industry had pursued different polices over the past several years.

There's a whole generation out there now that's grown up with piracy, and that's totally comfortable with it. Because this fight has polarized people so much, it's pushed a lot of people into the pro-piracy side who wouldn't have been there otherwise.

Re:They've created a pirate culture

[Mongoose Disciple]

That's a really interesting point. I wonder if we'll be talking about this era of record company business in fifty years the same way people say that the alcohol prohibition era in the U.S. gave organized crime its first big growth.

Re:They've created a pirate culture

[david_thornley]

Yup. Why would somebody pay for music when they can get it for free?

• They could be paying for a better copy, but in fact the pirate copies are better. (No DRM, for starters.)
• They could be paying because it's the right thing to do, but the prosecutions are firmly establishing the labels as the bad guys, and it's really hard to sell morality when you're running a campaign of indiscriminate terror.
• They could be paying because they're scared of the RIAA, but the RIAA's tactics are increasingly seen as ineffective.
• They could be paying to support the artists, but I suspect increasing numbers of people are aware of how much money the artists actually see from the CDs.
• They aren't going to be swayed by annoying ham-handed messages that try to make law-abiding customers feel like criminals, not in a culture where Reefer Madness became something of a cult hit.

The RIAA seems to be meticulously removing any reason anybody would have for buying their stuff. It's worse than watching the business practices of Major League Baseball. It's fascinating, much like a ship having a disagreement with an iceberg.

(Yes, all my music has been acquired legally. Why do you ask?)

Re:Scare tactic

[NewYorkCountryLawyer]

I think the real issue here is the RIAA's inability to see that the whole idea is a bad business move. I agree. When an investment site like Motley Fool gets hold of it, that should tell the shareholders something. Also, NPR's business show, "Marketplace", did an excellent 3- part series last week on the wrongheadedness of the RIAA's litigation campaign, and of alternative business models it should be exploring instead.

Re:internet time

[jandrese]

Even the Millennium Falcon couldn't catch up with that joke as it flew over your head.

Re:Scare tactic

[porcupine8]

Even if you understand that it's wrong and agree that the RIAA should be compensated when they do sue someone who is guilty, that doesn't mean you agree that they're asking for reasonable compensation. $750 per song? Do you really think that every time a person puts a song in their shared folder, they deprive the RIAA of an average of 750 legal downloads? Particularly if no one has to have ever downloaded the song from you to get sued?

If they were asking for $5 or $10 a song - and being more careful about who they sued - sure there'd still be some people claiming they should never ever sue anyone, but I think many people would be at least a little more sympathetic. At least I'd only think they were being silly and self-destructive for clinging to an outdated business model, rather than seeing them as extortionists and fear-mongerers. And given that they're settling for $3000, you can't tell me that they actually need the whole $750/song for legal fees, etc. They use it as a scare tactic, plain and simple, so they can get their $3k with no fuss and muss.

Re:And we should care why?

[NewYorkCountryLawyer]

I am a big fan of the Motley Fool website, but these guys are an "investment website", which really means they're simultaneous trying to attract readers to entertain them and hopefully sell their various investment newsletters. Generally I think they have a fair bit of credibility, focusing on things like investing over a decade-long time horizon, not piling into the "next big thing" and watching things like mutual fund expenses. That being said, I'm not sure why we particularly care about this particular article, other than the fact that it parrots the party line here at Slashdot. These guys aren't lawyers, and don't spend a lot of time examining the recording industry. In fact, over the 7 years that I've been reading their articles, this is the *only* one I can recall that discusses the music industry at all. It strikes me very much as an op-ed piece rather than a serious legal or business study of an industry, and I don't give it any more credibility than some guy ranting on his blog. To be sure, the RIAA has suffered legal defeats and setbacks, but just because a financial news and opinion site happens to pick up on it does not mean that the industry is going to collapse, nor does it mean that those who are being/will be sued should stop worrying.

Here's why I care.

The fact that an investment web site like Motley Fool and a business program like "MarketPlace" (which just did a 3-part series last week on the record industry's grand mistake) take hold of the issue isn't necessarily of interest from a legal point of view or a scientific point of view, but it is of great interest to shareholders and would be shareholders.

The impetus for dropping this campaign won't come from
-the lawyers who have been the principal beneficiaries of this juggernaut,
-techies,
-the entrenched management who would never admit to their shareholders that they've been on a fool's errand for the past 4 1/2 years,
-the RIAA which has been destroying the record companies, or
-anyone else.

It will come from shareholders when they come to realize they are being taken for a ride by a handful of morons who were too dumb to (a) realize the business opportunity the internet represented for them until it was too late, and/or (b) create a new business model that could harness the internet's energy.

The investment community is coming to realize that the big 4 record companies stocks -- all referred to in the Motley Fools articles -- won't be worth a damn until the record companies leave the past, enter the present, and work to survive into the future.

That's why the article means something.

PS As a lawyer, I think the Motley Fool author's understanding of the legal issues was pretty good, certainly a lot better than that of the RIAA lawyers I've met.

Re:Scare tactic

[NewYorkCountryLawyer]

Even if you understand that it's wrong and agree that the RIAA should be compensated when they do sue someone who is guilty, that doesn't mean you agree that they're asking for reasonable compensation. $750 per song? Do you really think that every time a person puts a song in their shared folder, they deprive the RIAA of an average of 750 legal downloads? Particularly if no one has to have ever downloaded the song from you to get sued? If they were asking for $5 or $10 a song - and being more careful about who they sued - sure there'd still be some people claiming they should never ever sue anyone, but I think many people would be at least a little more sympathetic. At least I'd only think they were being silly and self-destructive for clinging to an outdated business model, rather than seeing them as extortionists and fear-mongerers. And given that they're settling for $3000, you can't tell me that they actually need the whole $750/song for legal fees, etc. They use it as a scare tactic, plain and simple, so they can get their $3k with no fuss and muss. Hence the defense that the RIAA's $750-per-song-file damages theory (2000 times the actual damages per song) might be a wee bit unconstitutional, since, as Judge Trager said:

[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered.....Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered. Aff. of Morlan Ty Rogers, ("Rogers Aff.", [pars.]5, 6. See also Aff. of Aram Sinnreich, ("Sinnreich Aff."), [par.] 2, 3 (attesting that popular music sound recording downloads and consumer license to use same are lawfully obtainable to the public at 99 cents per song, and of that 99 cents, roughly 70 cents per song is paid by the retailer to the record label). As FRCP Rule 12(b)(6) requires that this figure be taken as true for purposes of the motion, Lindor has alleged a factual basis supporting her affirmative defense."

Re:Scare tactic

[alexgieg]

One should not need to agree, that such copying amounts to theft, to understand, that it is wrong regardless.

Not really. I myself was a VERY strong opponent of copyright infringement until ten years ago. I only changed my mind after I got hold of economics studies, more specifically in the classic liberal (not the US-kind of social liberalism) and libertarian traditions, then advanced into the realm of political theory.

There are A LOT of arguments out there against copyright and patents, ranging from the economic to the historical, from the social to the political, and dismissing all of this on the basis that "copying is obviously wrong" amounts to nothing more than a very crude oversimplification.

If you want a simple example, here's the historical one. Since the beginning of recorded history up until the first half of the Modern Age, the copying was considered by EVERYONE, from writers to actors, from musicians to singers, from inventors to manufacturers, as an obvious right. Libraries, for instance, existed for thousands of years, and beyond allowing you to take a book and read it, they all had full teams of scribes who would copy any work a customer wanted, or, if he so wished, would allow him to do the copy himself. Everyone interested in any intellectual production did this, and everyone felt it was the natural way of things.

It was only half-way through the Modern Age, and at first only in certain regions on Europe, that thing started to change. It took centuries, literally, for our system of "copying rights" to develop and turn in 180 degrees how we handled the subject. And while many industries organized and flourished around and from this system, it never, ever, ceased feeling unnatural to those taking contact with it for the first time.

What the Internet, and the "pirates" in it, are doing, thus, isn't so much contrary to the way things ought to be, but quite the opposite, a return to way things always were. A way that was artificially twisted 400 or so years ago, but is now being slowly and painfully put straight again. In this matter, they're surely a bunch of very conservative old-timers as one rarely sees. ;-)

If this is the case, how can they be "wrong"? They're "wrong" only from the very limited perspective of a limited subset of modernity and most of the contemporaneity. From the perspective of the (25 times longer) Ancient and Medieval worlds, their actions are pure common sense.

If they win, and they will, the Copyright Age will be seen as nothing more than a very small period of time sandwiched between the two huge Copyrightless Ages: the one that existed before, and the one that is starting right now.

The faster the "progressive" copyright-defenders accept this, the better. For everyone.