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RIAA 'Elektra V. Barker' Case Is Settled
NewYorkCountryLawyer writes "Elektra v. Barker, one of the leading cases repudiating the RIAA's 'making available' theory, has been settled. Unlike in most cases, the actual settlement agreement (PDF) is on file with the Court, and a matter of public record. Now Ms. Barker's attack on the constitutionality of the RIAA's damages theory, as well as her other defenses — including unclean hands based on MediaSentry's illegal behavior, the RIAA's inability to sue for statutory damages, and innocent infringement — will not be adjudicated, and it will fall on the shoulders of other defendants to carry the day on those issues. Ms. Barker, a young social worker who lives in the Bronx, once told p2pnet 'I love music. I grew up in a house where music was played all the time. We had milk crates filled with albums.... So to be sued for having music files on my computer is an insult. It's a slap in the face. This experience has left such a bad taste in my mouth that I wanted to swear off music.'"
The funny thing is that the milk crates were almost certainly stolen and illegal for them to have as well.
Bzzzzt - wrong answer.
You are using the word "album", but what you really mean is "music". And in the natural order of things there is simply no way to "sell" music - once it's sung once, anyone with a good memory can sing it again. Sure, you can charge for performances, and you can charge for the physical media, but the idea that you can charge for what is essentially a thought or an idea is a wholly artificial construct.
Copyright law was supposed to be an enormous social contract - the people, in the form of the Government, promised not to copy an artists work for a limited period of time, after which the work reverts back to it's natural state - which is to say, free of all legal encumbrance.
IP companies have perverted this process, starting with the Berne convention (I'm looking at you, Europe) to where creative works NEVER enter the public domain. They did this by legal encumbrances of the physical media involved. But now throw in a new wrinkle - it is possible to transmit the idea or though as information itself, with no media. So teh IP companies now are trying to regulate disembodied information, which is proving to be impossible.
I especially love your #3: "Record labels distribute and advertise your music so that you can make a living off of it." Are you serious? They distribute your music so THEY can make a living, not the artist. Prior to the advent of copyright, artists made their living for thousands of years in the same way - pay for performance.
- Ogg is a particularly good cave painter. Ugh just finished a legendary hunt. So Ogg paints the tale on the wall, and Ugh gives him some food. END OF TRANSACTION.
- The Pope wants a mural on the ceiling of the Sistine Chapel. Michaelangelo paints it, and gets paid. END OF TRANSACTION.
- A balladeer sings his songs in a tavern. The tavern keeper comps his room, because people come to hear the music. The drunks throw change in his hat. END OF TRANSACTION.
Is file sharing illegal? I believe it is.
Are most file sharers doing it because they are cheap and not out of civil disobedience? Absolutely.
But neither of those facts takes away from the reality that copyright, as we know it, is dying.
"As God is my witness, I thought turkeys could fly." A. Carlson
1.) No one is obliged to buy an item that is overpriced. In fact, an underground economy cannot exist without either rationing or artificially high price floors. Since we don't have rationing in this case, it follows that the price of music media is too high given the current market. If you really want to make a sale, remember the adage: "If a customer wants to give you money, you let them." Customers have spoken with their wallets and said, "Let us download good, DRM-free content." The RIAA has enforced the media industries' stance that such sales will be considered piracy. But the term "piracy" has lost it historical meaning, since now it is no longer the case that 1 pirate sale equals 1 lost sale in the legitimate market. Someone who downloaded the entire Beatles catalog will still buy paraphernalia. It does mean that the market has shifted such that a good song is now a vehicle for concert attendance, t-shirts, posters, etc., rather than a source of income in and of itself. This is a much better arrangement from the consumer's POV compared to 20 years ago, when it was likely that a $15 CD with 11 songs would contain 2 worth listening to. And in a market driven economy, what's good for the consumer generally wins out in the end.
2.) If humans want to make a profit, they have to make a product that others want to buy at prices that reflect the current market. If I choose to sell a decent graphic novel of my own creation for $100 per issue, I shouldn't be surprised when I find it for free on the Internet. $100 is too high for a graphic novel by any stretch, and I didn't offer it in the media my customers' wanted. The tack you would seem to advocate is to sue my customers because they've broken the law. True, but if I want to stay in business, it might not hurt to try offering the issues for free on the net and then selling paper editions: regular for $10, deluxe for $100. The market will then dictate what to do next. Humans tend to upgrade their stuff based on their incomes, be it better editions, DVD's, or concert attendance of their favorite artists, so with my model, good content will still generate a profit.
3.) Content creators are not owed a profit by their customers or by their management. They have to earn it based on what they have to offer and what the public is willing to pay for. Offer what the customer wants at a price the market reflects, and profit generally occurs. Doing otherwise, especially suing customers, shows short-sightedness, greed, and egotism.
It comes down to this: do you want to make a profit in this market or not? This market is not the market of 20 years ago, and no amount of name-calling or foot-stamping will change that. It's no longer possible to have a millionaire lifestyle through royalties off of one song written in 1960. If your customers want music for free, remember that they buy tickets, t-shirts, coffee mugs, posters, and subscribe to a web site in order to be the first to download the latest album.