Copyright Scholar Challenges RIAA/DOJ Position

NewYorkCountryLawyer writes "Leading copyright law scholar Prof. Pamela Samuelson, of the University of California law school, and research fellow Tara Wheatland, have published a 'working paper' which directly refutes the position taken by the US Department of Justice in RIAA cases on the constitutionality of the RIAA's statutory damages theories. The Department of Justice had argued in its briefs that the Court should follow a 1919 United States Supreme Court case which upheld the constitutionality of a statutory damages award that was 116 times the actual damages sustained, under a statute which gave consumers a right of action against railway companies. The Free Software Foundation filed an amicus curiae brief supporting the view that the more modern, State Farm/Gore test applied by the United States Supreme Court to punitive damages awards is applicable. The new paper is consistent with the FSF brief and contradicts the DOJ briefs, arguing that the Gore test should be applied. A full copy of the paper is available for viewing online (PDF)."

Comments

hmm

[nomadic]

University of California law school

That narrows it down...

Re:hmm

[phantomfive]

A quick Google search puts her at Berkeley. Which isn't surprising.

Deep pocket lobbyists will get you everything

[al0ha]

The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy.

How can the media companies been seen as akin to the small guy and the individual consumer the BIG guy?

By Benjamin goggles of course!

Re:Deep pocket lobbyists will get you everything

[NewYorkCountryLawyer]

The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy. How can the media companies be[..] seen as akin to the small guy and the individual consumer the BIG guy?

They can't. The DOJ's brief was nonsense. For that and a number of other reasons.

Maybe their math isn't too good. 116 times their actual damages would be around $40; they're looking for $750 to $150,000 per mp3.

Re:Deep pocket lobbyists will get you everything

[macraig]

Isn't that demand based on some theory of "collateral" and cumulative damage caused by someone sharing a media file? In other words, you share the file, which thousands of other people receive for free and thus don't pay to own, so YOU are responsible for the (theoretical/estimated) cumulative loss of profit?

(Yes, I know there are other interpretations how that scenario actually plays out; I'm not drinking the Kool-Aid, merely pointing it out.)

Re:Deep pocket lobbyists will get you everything

[artor3]

Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost

According to who? The person who pirated the music? I've got news for you. People rationalize their actions. All the time.

If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.

The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest. Maybe your friends aren't willing to be honest about it, but I'm man enough to admit that I have pirated music which I would have paid for otherwise. And I am 100% certain that I'm not alone.

Re:Deep pocket lobbyists will get you everything

[W. Justice Black]

I'm man enough to admit that I have pirated music which I would have paid for otherwise.

I guess I'm not. I will NOT buy CDs or anything on iTunes, but as soon as Amazon started selling MP3s that:

• Will play on pretty much anything.
• Are unrestricted, and
• Don't absolutely require the use of a funky downloader to get

I started purchasing every song in my download folder and that was available through them (I tend to keep my collection pretty clean and delete anything I don't like after a play or two). Yes, that meant a few hundred dollars over the last several months. Yes, that also means there are some songs in there that still aren't legit (they're not available through Amazon).

Amazon, in short, has what I want the way I want it, and I'm quite willing to pay for that. I suspect that, once this silly DRM thing goes away, people will be plenty honest enough to keep the music business from dying. The days of obscene margins on an artificially-scarce product are over, but the death of the industry is not at hand.

IF the labels keep a cool head about it and don't do anything (else) stupid.

Re:Deep pocket lobbyists will get you everything

[Starayo]

I refute the claim that what the RIAA labels produce is 'music'. They make noise. Lots and lots of irritating noise.

Re:Deep pocket lobbyists will get you everything

[Doctor_Jest]

If it's actual damages, let them write them off on their taxes. If they truly are losses, they can claim them. If not, (which I wholeheartedly side with the "imaginary" argument), then they need just shut the hell up. It'd be subject to GAAP rules, of course. But I think they could manage that, considering how much they pay for these moronic experts and other pondscum lawyer-types.

I don't care if "piracy" (infringement is the word, not piracy) causes anything. Copyright doesn't guarantee profit. It never has. That's what the heck's been missing from this argument for quite some time. Simply making something, copyrighting it and offering it for sale doesn't guarantee a dime, but the RIAA seems to think so, and they are doing their damn level best to be sure they pay or coerce as many people as possible to believe that horseshit too. The RIAA (and other asshole AA's) want you to believe that money is it. It's not that. It's about control. You have the control on where and when you can listen to the music you own (or traded), and it bugs the shit out of them. If they had their way, you would pay for a CD, then if you wanted it on your portable device, you'd pay again. And if you wanted to listen to it in your car, you'd need another CD purchase. But that would require licensing, and it would subject them to liability they don't want (hint, the "cake and eat it too" argument fits here). So, they sell it as a commodity, don't get too up in arms about used sales, and try to squeeze the collective nuts of their customer base who shares their music. Bah. I don't see how the hell people don't just tell them to take a flying leap and let them rot. I really don't. I am as guilty of aiding these dipshits as the next guy (surprise, I buy music), but come on... this is getting ri-goddamned-diculous. I try to limit my purchases to non-RIAA member companies, but it's increasingly a lose-lose situation with recruitment (or indoctrination as the case may be) at an all-time high. It's nauseating as much as it is depressing to think about.

I'd rather see Roseanne Barr naked than have to deal with the RIAA ever again.

Re:Deep pocket lobbyists will get you everything

[NewYorkCountryLawyer]

The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest.

Of course there is damage, but the courts have rejected the RIAA's theory that each unauthorized download represents a lost sale, in this recent criminal copyright infringement case.

Re:Deep pocket lobbyists will get you everything

[digitalunity]

I download albums off TPB and if I like them, I buy them off iTunes. I will not support any type of physical distribution of music - that era is dead and gone and I don't want any music publishers to think otherwise.

Interestingly, digg did an interview with Trent Reznor of NIN recently and it was really intriguing. He had a lot of really insightful and balanced comments regarding the music industry and the direction of online content distribution.

I wish the music publishers would watch it, they might learn a thing or two.

Re:Deep pocket lobbyists will get you everything

[Dun Malg]

Isn't that demand based on some theory of "collateral" and cumulative damage caused by someone sharing a media file? In other words, you share the file, which thousands of other people receive for free and thus don't pay to own, so YOU are responsible for the (theoretical/estimated) cumulative loss of profit?

Yes, but that's part of why it's bullshit. You can't make one person pay for the transgressions of 100 others. That's the canonical definition of "scapegoating", and it has no place in law.

Re:Deep pocket lobbyists will get you everything

[Idiomatick]

Online radio. If i lost my collection I'd listen to online radio, regular radio and never buy a cd. I've only bought 1 cd in my life, there is no point.

Re:Deep pocket lobbyists will get you everything

[rdnetto]

If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.

Guess again. There are now enough internet radio stations and independent artists who are willing to provide music for free that it would be quite feasible to go without buying any music.

But this serves only to demonstrate that your premise of it being impossible to listen to music without paying for it is flawed, since there is no way to regulate the actions of people who want to give their works away. If there were, I doubt that Linux would cease to exist.

Re:Deep pocket lobbyists will get you everything

[Narpak]

It's pretty much an established fact that piracy in general drops drastically among people in their late twenties compared to people in their teens or early twenties. Basically when people start making money they tend to spend more of it.

Yes piracy probably siphons away some profit from the artists. However there are lots of music I would NEVER have heard or encountered if I didn't get it from a mate, who got it from some other dude. Hell I have found music on YouTube that I have ended up buying because I like it. The only thing limiting my purchase of music, or for that matter books and computer games, is my budget.

I have friends who are serious musicians who actually checked piratebay regularly when they released their last CD, seeing people actually downloading it made them very happy. Because for them, as unestablished musicians, exposure is king.

The only way to reduce piracy further is from services like Amazon to make it easy, practical, affordable and most of all quick to get it. Personally I wouldn't mind having an online database where I could buy and register the music I have purchased so I can download it again whenever, wherever, I need or want to hear it.

One thing is absolutely certain though, whatever else happens; people like music. People will pay for something they like. And people, despite any piracy statistic, still show up to concerts and festivals and spend immense amounts of money each year purchasing Band branded posters, shirts, skirts, pins and whatever else you stick a cool logo onto. So I definitely agree "the death of the industry is not at hand"; however, as you say, the current incarnation of the industrial part of the music industry will have to change or die; probably a bit of both anyway.

Re:Deep pocket lobbyists will get you everything

[dcmoebius]

The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest. Maybe your friends aren't willing to be honest about it, but I'm man enough to admit that I have pirated music which I would have paid for otherwise. And I am 100% certain that I'm not alone.

Amen to that. I still find it incredible that people try to legitimately claim that piracy actually HELPS these industries.

Don't get me wrong, I don't feel bad for the RIAA, in fact I find them pretty reprehensible. But to claim that downloading content for free doesn't adversely affect these companies under their current business model is just foolish.

The RIAA is technically entitled to SOME sort of remuneration, but the argument being used for these inflated damages is absurd.

The fact of the matter is that the people making this kind of decision are finding it easier/more productive to turn to litigation to protect their bottom line as opposed to developing a more reasonable business model.

Re:Deep pocket lobbyists will get you everything

[jonaskoelker]

You can't make one person pay for the transgressions of 100 others.

That would be the case if the RIAA/MPAA argued that you are responsible for them downloading.

I think the MPAA/RIAA argument is that you are responsible for 100 counts of uploading (for n=100).

I think that's a reasonable argument: if you do something wrong a hundred times, you should pay for all hundred.

It's just that they don't provide any good evidence. ... And their legal maneuvers are dubious. Go to Ray Beckerman's site for a lawyer's argument as to why.

Re:Deep pocket lobbyists will get you everything

[bzipitidoo]

Do you really believe that people shouldn't have to pay for music, movies, video games, software, etc...?

Who is saying that? It's the mechanisms we don't like. Face it, copyright is broken. There is no technically feasible way to stop copying. DRM does not work. And there isn't any social way to stop the sharing either. It's hard enough just trying to figure out whether a particular act of copying is legal or not. I think a good comparison is with so-called morality legislation, where some group attempts to have whatever sort of sex they don't like outlawed. Those sorts of laws plain do not work. Consenting adults can engage in whatever sex they like and no outsider will easily find them out. So it is with copying.

I support compensating artists for their work. I don't support the concept of "copyright" as a means to that end, because copyright has no teeth. It no longer works. It only worked in the past because copying used not to be so easy, requiring much expensive and bulky equipment that could be monitored. Today, sharing files is much, much easier than sex. It's like virtual sex.

But until we get the law caught up with reality, these MAFIAA organizations are cynically using a very favorably puffed up, monopolistic, warped version of copyright that isn't (or wasn't) supported by the actual law, to threaten and extort a very small fraction of the technically guilty public, which is pretty much everyone. Canada put a levy on blank media to settle the grievances of the entertainment industry, but for some reason which is probably the mindless pursuit of every last dollar real or apparent, the industry is still trying to sue individuals, game the legal system, or just outright renege on the deal by bribing legislators to pass more legislation doing just that.

I don't understand what the end game is for slashdotters.

For me, the eventual withering away of copyright is the goal. When we have other means of compensation in place and working, and working so well that copyright is merely a useless impediment, then we can let it die. Until then, artists will have a choice of means. Copyright will be only one of those means. There would have to be some exclusivity-- no one should be allowed to have it both ways, that is, collecting money under whatever alternative compensation scheme arises and then turning around and denying people so they can make (or think they can make) yet more money with copyright. The law can keep copyright enshrined forever, it just won't be used, not with other, superior methods in place.

Can you imagine what things would be like if people no longer had to fear the hammer of copyright violation? Want to do Star Wars or Lord of the Rings your way? Think someone else could sing and play the Beatles' songs better than the Beatles did? Think the dialog in Star Wars could stand some serious improvement? "You will never find a more wretched hive of scum and villainy", etc. Go for it, and Lucas, the Beatles, or the Tolkien estate won't have any say about it. The current situation is absurd. Save for parody, they get to dictate the value of and uses to which their "property" is put because not being in total control could somehow harm that value. I recall a boy did just that with Star Wars, and, incredibly, they considered suing the child! We might see a real flowering of the art of mashups. We might see genuine improvements of stories-- not bowdlerization but actual refinements, and the preferred version of a story could easily be something many authors worked on. Sort of like a certain work known as The Bible. As for the rest of us, we'll have the freedom to openly use our computers and networks to their fullest powers.

Re:Deep pocket lobbyists will get you everything

[TheRaven64]

I download albums off TPB and if I like them, I buy them off iTunes

Even when it costs more? The last few albums I bought were cheaper, including delivery, from Amazon than they were from iTunes. As soon as I got them, I ripped them, but I got a convenient backup copy in case my hard disk dies (again). Since you've already got a copy, then the immediacy argument doesn't hold. I'd rather support physical distribution than overpriced electronic distribution.

Re:Deep pocket lobbyists will get you everything

[blackest_k]

Interestingly most torrents you struggle to get people to upload to 1. Doesn't that mean you uploaded 1 copy if your ratio is 1 and your responsible for 1 Copy.

Re:Deep pocket lobbyists will get you everything

[toriver]

Yes they should be forbidden in the same way that if I walk into a store and choose between buying a CD and a DVD and go for the DVD, the music publisher does not get to ask the movie company for money for the "lost sale". You see, it does not MATTER what is the reason someone chooses not to buy something.

But the people downloading could be charged with unlicensed copying of the ONE copy they make. That is their crime. "Not buying" is not a crime, the world does not owe anyone success in business.

Re:Deep pocket lobbyists will get you everything

[pmarini]

people do download music from unauthorised distribution sources (what you and others insist on calling piracy or theft) when the price it too high and doesn't make it worth buying... much like fake Rolex watches from Singapore
now the various stores are finally being more reasonable in both prices and restrictions so the industry will start to notice a big increase in online sales and finally stop muttering about the issue...
consider that:
- it's crazy to think that virtual (intangible) goods should cost the same as physical ones as when they started the online music business;
- it's crazy to think that what you purchase one day (the license to listen a specific song), should be purchased again with each format-shift;
- it's crazy that you can't insure your "digital" music collection (unlike the physical one)... has anyone tried ?
- it's virtually impossible to resell all or part of that "digital" collection without getting into all sorts of troubles, like trying to remember each single place where it was backed-up too (in order to remove it from there)
- this list can go on... the judicial system is simply not yet ready to deal with all these innovations, so let's give it a hand to do it the right (consumer) way...

Re:Deep pocket lobbyists will get you everything

[NewYorkCountryLawyer]

In not one of these cases have the shown any evidence of such things, nor have they even spoken of any actual damages. If this took place then they could make that case, show proof, and provide a reasoned estimate of damages. This has not occur[r]ed because no, negligble, or at least much less damages have taken place than the RIAA/MPAA would like people to presume. It is upon burden of the plaintiff to show damages, and in not a single court case have they done so. Mere speculation of possible future events has no place in these preceding, merely because something may happen does not mean it has. And if something has not taken place then there is no grounds.

Well spoken, scientus.

I.e., RIAA formula for arguing that the statutory damages are appropriate:

1. Bring a lawsuit making unsupported accusations.
2. Ask for outlandish statutory damages.
3. Defend the outlandish statutory damages request by saying (a) maybe this caused us damage and (b) it's necessary to give us outlandish statutory damages to deter other people and (c) don't look at the law, judge, that will only confuse you.
4. ???????
5. Profit!

Re:Deep pocket lobbyists will get you everything

[NewYorkCountryLawyer]

Purportedly, the RIAA can identify each of the people who illegally acquired a copy

No, actually they've admitted they can't.

Excellent

[maz2331]

This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.

Re:Excellent

[NewYorkCountryLawyer]

This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.

In practical terms, it doesn't have to go to the Supreme Court. A few well reasoned decisions in district courts, or courts of appeals, will have sweeping effect.

The DOJ's position -- if litigated -- doesn't have the chance of a snowball in hell of being upheld. The RIAA's statutory damages theory is flagrantly unconstitutional, under the Williams test or under the Gore test.

Re:Excellent

[NewYorkCountryLawyer]

yes, because "working papers" are important agents of legal authority and change (hint: they mean jack shit to the law, which is decided inside courtrooms, not on internet blogs and uploaded PDFs).

The 'working paper' is merely an earlier stage of a law review article. This working paper will almost certainly become a law review article.

If you think law review articles are not read by the courts and considered carefully you are wrong.

In UMG v. Lindor, the only one of these RIAA cases to litigate the constitutionality-of-statutory-damages issue, the Judge referred to 2 law review articles in ruling against the RIAA.

Throughout legal history, many important decisions have been guided and informed by legal scholarship in law reviews.

Yes cases are decided in "courtrooms" but scholarship is an integral part of each practicing lawyer's work, and of each Judge's work.

Re:Excellent

[mailman-zero]

This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.

Except for that whole Eldred v. Ashcroft fiasco described in Lessig's Free Culture.

Re:Excellent

[NewYorkCountryLawyer]

these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings

You don't know them like I do. There is no way they will let this issue get fully litigated. Whenever they run up against a lawyer like me they will fold up their tent before letting this issue get decided. When they lose on this issue, the game is over for them. Without their ridiculous, draconian statutory damages threat, they are finished.

They might go to the mat in the Tenenbaum case, only because they look upon Prof. Nesson's unconventional legal arguments as easy prey. But I think they would be making a mistake in going to the mat even there, because Judge Gertner is not going to let Prof. Nesson control the legal parameters. She will determine them.

Most likely you will never see these issues fully litigated in the RIAA v. end user cases at all.

Re:Excellent

[NewYorkCountryLawyer]

In many 'cutting edge' areas of law many judges cannot be 'up-to-speed' without input from reasonably respected sources of legal scholarship to draw upon.

Nor can any lawyer prepare a proper brief without him or her self engaging in scholarship. When I went to law school I was working in a law firm at the same time, and found it impressive how intimately related legal scholarship and legal work were. Any lawyer who is not also a scholar is not a top notch lawyer.

Re:Excellent

[Andy_R]

Could a couple of concerned US citizens set up a a test case and 'fully litigate' it in order to set a legal precedent?

I'm sure we could find a slashdotter who can write a song (quality unimportant), copyright it, and then have it pirated by another slashdotter and then press for RIAA style damages (which would be given back in the unlikely event of a win).

Re:Excellent

[actionbastard]

The RIAA's tactic is to intimidate the unknowing into capitulating without a fight. All it costs them is a a few bucks for a secretary to mail out the letter. Once they get into 'real' lawyering with judges and opposing counsel, then it starts to cost real money. That's why they either get a quick settlement or they cut and run.

Support Roll Your Own Artists!

[I_Can't_Fly]

Come on guys...

Whatever happened to improvisational near real time performances in the public domain.. rotfl.

Well anyway if someone wants a recording of the bad storms that rolled through here about 3 hours ago with some guitar recorded live.. here it is.

Tennessee Storms of April 10, 2009 and guitar

Like the universe..the net has a lot of alternatives, and not just mine. Stop being force-fed what you like.

Re:Support Roll Your Own Artists!

[rts008]

Well Done!
Not my normal type of music, but that was an interesting piece of work, having the storm in the background. Calm and soothing, yet with a dynamic tension that keeps it from going stale halfway through. (it reminded me of something I could have expected from Carlos Santana)

This is a good example of why all of the "Oh No! The music is dying!" crap from the RIAA and their shills runs in one ear and immediately out the other with me.

There are just too many people out there like you, who will make music for the enjoyment of the music...and don't mind sharing.
Thanks for both the attitude and the music. You made my day with that!

Obama Justice Department

[Nom du Keyboard]

So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right.

So how's all the Hope and Change working out for you?

Re:Obama Justice Department

[NewYorkCountryLawyer]

So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right. So how's all the Hope and Change working out for you?

I was disappointed in the low grade, obsequious briefs the Justice Department filed in SONY v. Tenenbaum and SONY v. Cloud. I was hoping for "change" but found none in this area. Nevertheless we are early in the game, and the Justice Department RIAA lawyers are all legally recused from dealing with these cases.

Re:Obama Justice Department

[belmolis]

Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.

Re:Obama Justice Department

[NewYorkCountryLawyer]

Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.

I agree. The briefs the Obama DOJ filed were cut and paste jobs from the one the Bush DOJ filed so "inertia" is a very possible explanation. It wasn't "change" but it wasn't a downward departure either. It was the same low level, not carefully thought through, trash.

Re:Won't the Supremes intervene again?

[NewYorkCountryLawyer]

I doubt there's a judge in the land who would rule that statutory damages of 2100 times the actual damages is constitutional.

according to me

[reiisi]

Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost

According to who? The person who pirated the music? I've got news for you. People rationalize their actions. All the time.

True, but does rationalizing necessarily equate to sinning^H^H^H^H^H^H^H committing the crime?

If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No.

Hmm. You know, I quit buying music shortly after I quit listening to "free" music. (Broadcast radio. Various reasons I got turned off the radio stations.)

I've got a few albums I bought because I thought I liked the band. About half of those, I decided I no longer liked the band, even the the songs on the albums that made the charts were the ones I listened less to. I've got a few albums I bought on recommendation, but none of those (except the classical stuff my Mom recommended) ended up being albums I listened to. Most of the albums I've bought, I bought because I wanted the songs on them, because I had heard the songs on them. Taped the songs off the FM.

I suppose, maybe I wanted to support the band. More like I wanted to spend money on something I liked, and I recognized that buying tapes and recording off the FM did not really save me all that much money. Having both the tapes and the albums was much more flexible, if time-consuming. Made a lot of dance mixes, some that my friends liked and some that they didn't like. But my friends ended up buying the music I played at our church dances. (I'm not sure I think that's a great thing, but it demonstrates the principle.)

They'd buy some music. Not nearly as much as they're willing to take for free, but some.

Lemme fixat for yah:

They'd buy some music. Not nearly as much as they're buying now when they can listen for free if they want to, but some. Maybe.

The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest.

Well, if by honest you mean recognizing and telling the whole truth, yeah.

But focusing only on the damage is even less honest.

Maybe your friends aren't willing to be honest about it, but I'm man enough to admit that I have pirated music which I would have paid for otherwise. And I am 100% certain that I'm not alone.

Uh huh.

I don't know about you, but, to be honest, I am just not interested in the "music" the big companies promote any more. The only way I could be persuaded to buy it would be to hook me on it. That means making^H^H^H^H^H^H letting me listen to it. Free.

And I know a lot of people who are like me. Normal people. Functioning members of society people. Not geeks, not particularly fans. The majority of the people I know.

And most of the geeks I know, the ones who do most of the freeloading, are precisely the ones who are introducing me and the majority of the people I know to music. (Like I used to introduce my friends to music.)

Sure, maybe free downloads do some damage.

Shutting off the free downloads does a lot more damage.

(I must admit, if the big "rights" management companies can just be convinced to keep their laws away from the indies, I'd just as soon they destroy themselves by closing off the loopholes and sinking into their legal black holes.)

Sweet

[bikehorn]

The RIAA sucks, but I still pay for my music, at least some of it...by buying vinyl. Mmm, delicious records and analogue sound.

Re:Won't the Supremes intervene again?

[russotto]

I doubt there's a judge in the land who would rule that statutory damages of 2100 times the actual damages is constitutional.

I can name 5: Roberts, Alito, Scalia, Kennedy, and Souter. (yeah, I'm a pessimist)

You're dodging the question I'm asking.

[reiisi]

I'm not saying it's okay to copy when the artists say they don't want that.

Yeah, others are saying that, but I'm not.

I'm pointing at a couple of big gaps in the argument. First, the "rights" organizations no longer really protect the rights of the artists. What they are doing is wrong. It may be legal, but, if it is legal, it is still based on bad, unconstitutional law.

They could have approached the copying issues in a much better way, if they had simply recognized the realities of the market.

Zeroeth: you can't sell music you don't let people listen to. On their own terms. (That's why I quit listening to radio. And it's why I quit listening to music, except what my kids play, except what the school band plays, except at church, that kind of stuff. Even the indies are mostly not putting out music I want to hear any more.)

Artists have the right to be prima-donnas. We don't need to think it's an insult to call them prima-donnas, but we don't have to think we owe them a market they aren't willing to get themselves into.

Getting into the market requires letting people listen. For free. On the individual listener's terms.

You cannot mechanically suppress the free downloads and keep the free market healthy. You can't shut off the bit-torrents and keep the free market healthy.

The solution was/is plain. The RIAA should be cooperating with Pirate Bay and the others, to use the free downloads as ways to expose potential customers to the artists products. That does mean that artists have to work to make a living, producing more, producing more of different kinds of things, maybe even doing things besides their art. That's always been the way it is with art.

Historically, art has been one of the hardest ways to make a decent living. That is why art is art. That is what separates art from craftsmanship, and, really, what separates craftsmanship from assembly-line manufacturing.

It's an unfortunate fact, but artists really have to starve and scrape by and be rejected and all that to produce real art (of a general nature). Or they have to be willing to produce less "perfect" art and live by some other means, which is a road to a different kind of perfection.

The fact that society has been traditionally way too hard on failed artists is a separate question, and that cannot be addressed by anything that the "rights" organizations are presently doing.

There are lots of things wrong with the economy, but shutting down the markets is not how to solve the problems.

Re:Won't the Supremes intervene again?

[ktappe]

I doubt there's a judge in the land who would rule that statutory damages of 2100 times the actual damages is constitutional.

I can name 5: Roberts, Alito, Scalia, Kennedy, and Souter. (yeah, I'm a pessimist)

You'd have to be. The first four we (and most) can agree on, but I'd be surprised if Souter would side with the RIAA and DOJ on this one. While appointed by GHWB, he has tended towards the liberal side in most decisions. He's rather "common sense", using the Constitution as a general guideline not a strict rule--he'd likely side with the little guy in this case.