"I am not that surprised but a bit disappointed. I thought that with Obama USA was going to take the lead on the issue of copyright in the 21st century. Do not expect many outbreaks from Europe right now. I hope he is just fixing issues by order of priority and that copyright reform is still somewhere on the list."
IP is one of the country's leading exports. As more and more manufacturing leaves the US and the world settles more firmly into the post-industrial age, the revenue stream from media, software and the like is going to be even more important.
We like to dream of a world in which Windows is open source, the Berne Convention is abolished, and the iTunes store shuts its doors, and we'll all live in an information utopia where art is created only for arts' sake. Linux and Magnatunes will finally get the success that they deserve, everybody who's ever been on "MTV Cribs" will be thrown into the lake of fire, yadda yadda. But the sad and ugly truth is that our nation's economy is run on IP, and money is a bit tight right now.
"I don't care for iTunes, since most of the music on it is DRM-laden, and I refuse to buy music that behaves on someone else's whim."
Apple began phasing out DRM in January, and their entire catalog is not DRM-free. They joined the ranks of Amazon MP3 and several other online stores (some big, some small, some good, some not so good) that were already selling DRM-free music. The record companies waking up to the notion that DRM isn't useful was long overdue, but I'm glad finally happened.
"What needs to be done is have a subscription service that works across all platforms, costs some money ($15 a month? $30 a month?), and has a good catalog. That wouldn't solve everything, but it would be a steady stream of money, and it wouldn't be too hard to track which artists are the most listened to, and distribute the money accordingly. For what it's worth, Rhapsody also sells music a track at a time in DRM-free MP3 format."
Rhapsody does most of this. They're not Mac-friendly, but I pay $15 a month and I can listen to it on my Windows box and on my Squeezebox. Their royalty payment system works just like you describe.
"No, documented fact. Hence why they keep getting hit with fines for anti-trust/price-fixing violations."
When accusing record companies of being dishonest, it is important -- essential -- that we not spread lies as well. What is there to be gained? Seriously, Mr. MaskedSlacker -- with so many bad things that the record labels do, why make shit up? Why?
You're referring to the Universal price-fixing case of about a decade ago. It had absolutely nothing to do with collusion between record companies; it was all about a market technique called "minimum advertised pricing" -- known in the retail industry as MAP. Here's what happened:
Wal-Mart and Best Buy started getting into the business of selling CDs. Since the sale of CDs was just a lure to get customers into the store, they sold CDs at little or no margin.
A couple of record store chains that you might remember from your childhood, Tower Records being probably the one we all remember, went into freak-out mode and complained to the record labels that Wal-Mart and Best Buy were going to drive them out of business.
Universal stepped in and instituted a MAP program with these retailers. In this case the details were that Universal would give the record labels money to run advertising (called "co-op advertising" in the retail business) in exchange for not advertising CDs at below a certain price set by Universal.
At this point I should stop and point out that MAPs are still alive and well today. It's an interesting distinction -- authorized dealers are welcome to sell product at any price (otherwise it would be illegal), but if they advertise prices below a point set by the manufacturer, they don't get co-op money, or the best rebates, or other perks that authorized dealers typically get. A huge number of companies do MAPs, including companies well-loved by Slashdotters. Apple is one of them.
Anyway, back to 1999 or so:
Wal-Mart and Best Buy, upon hearing of Universal's authorized dealer MAP program, went to the government.
Wal-Mart and Best Buy having the weight they do, the government stepped in, agreed that Universal's MAP program was a little too close to price-fixing, told Universal to stop it immediately, and set up a program in which anybody who'd bought CDs at Tower Records or the other resellers could get some money back.
Tower Records, of course, went out of business shortly thereafter. They simply could not compete with Wal-Mart and Best Buy.
The price-fixing settlement is a good thing if you subscribe to the "What's good for Wal-Mart is good for America" philosophy, or if you don't particularly mourn the death of the indie record store. On that point, however, I think Tower would be out of business today anyway; the price-fixing ruling simply hastened their death.
"You can a lifetime in practice and never get closer to the Supreme Court than the Gray Line bus tour."
I may be mistaken, but I believe it was Nessen himself who argued MGM v. Grokster before the Supreme Court. Perhaps he's hoping that lighting will strike twice.
"Nor is he entitled to flood the P2P nets with his own DiVX rips. The unlicensed wholesale distribution."
That's well-established (except perhaps in Slashdot land), but he has nothing to lose to try to change this. His house is already paid for.
Just to jump on what RedK wrote... I didn't explain because I thought it was already well-known that the RIAA is taking people to court for distribution, not downloading. To be fair, you're not the first to make this mistake.
Not sure why you think Tennenbaum deserves a "life sentence." When I wrote that statutory damages should be "reeled in" I meant that they should be lowered significantly. This might be a bit of American slang, so if you're not a US resident I can see the soure of confusion.
"A smart lawyer could argue this verdict is unconstitutional since a life sentence is "cruel and unusual punishment" for merely downloading ~$30 worth of songs."
Using the phrase "merely downloading" is dangerously misleading, as he was not merely downloading them.
Lots of torts have pretty high limits on statutory damages, so I don't think there's a constitutional issue here. I do, however, think that the statutory limits need to be reeled in. They were set back in the days when massive distribution was almost always done for profit (since there were a lot of costs involved in massive distribution). Now that the costs are nil, the statutory maximums should be lowered accordingly. I think they should top out at around $1,000 for works which have a market value of about a buck.
But this may be a "be careful what you wish for" issue. If the statutory maximum were $1K per work, then Tennenbaum might have been nailed for $30K. Or the record labels may have gone to court over 60 songs, not just 30. It still would have been a very bad day for the defendant. Reducing the statutory maximum wouldn't discourage copyright owners from going to court; the record labels are doing this to make a point, not to create a profit center.
They submitted fair use as a defense with the likely understanding that it would be rejected. This is Nesson's ticket to appeal.
My guess is that Nesson knows he can't get precedent set at the district court level. MGM v. Grokster made it to the Supreme Court, and I think Nesson wants to take this one to the Supremes. Tennenbaum didn't have a chance with the current interpretation of the law (basically "copyright infringement is bad, mmmkay?"), so he's trying to shake things up.
That's just my interpretation. The other possibility is that he's simply an idiot, but it's already established that he's a very smart guy.
The precedent is hugely against the defendant here in the application of the fair use defense. Every P2P service trial has had fair use come up, and they've been smacked down each time. Precedent is crystal clear here.
I'm not sure where you get your belief that the judge is biased. Remember, she's the one who yelled at the record companies for bankrupting defendants and warned them to stop. Her husband is the legal director for the Mass ACLU, also no friend of the record companies. Nesson has a judge who is very sympathetic to the cause.
Kinda. It's a bit like if the defense presented the argument that copyright infringement should be legal on Tuesdays, and that his client only fired up Kazaa on Tuesdays. The judge would not allow that defense, for the same two reasons: if the defense were accepted by the jury, then the defendant would obviously win, and because it's silly.
The fundamental misunderstanding here might be that this is a district court. Fair use has been tried as a defense in every P2P service or tracker trial, going back to the original Napster. Each time it's been made clear that fair use doesn't apply. I don't know how more clear a reading of the law is required here. Keep in mind that even the EFF isn't backing up Nesson on this one. But either way, district courts don't set precedent. If you still believe that there's a glimmer of a hope that fair use can apply, then that's what the appeals process is for. It's kicked up to a higher court which has more flexibility in setting precedent.
I know you believe the judge to be "brain dead" but it's important to understand that she's no friend of the record companies. She and Nesson go back a long way (which is one reason, I suspect, that she went out of her way to give examples of how fair use might apply to a file sharing case). She's chastised the record companies in the past for "bankrupting" defendants, and her husband is the legal director of the Massachusetts ACLU, which has gone up against the record labels in the past. Nesson could not have found a more favorable judge.
"Please NYCL, save me from confusion."
Anybody with an understanding of the facts can explain it to you, and I believe that a few folks have already tried. If you're looking specifically to NYCL to tell you what you want to hear, be careful -- he's a smart guy and I have tremendous respect for what he's doing, but he has a very clear agenda here.
I also disagree with your assertion that the defense is incompetent. I think I understand why he's taking this unorthodox approach; that's perhaps left for another discussion.
"Most artists lose money on record sales as a result, or make very little."
Artists are not asked to contribute their own cash toward the production of a record, so they're not losing money. If an album doesn't sell well, the record company loses money, but the artist breaks even.
You are, however, correct about self-produced albums. If you produce and distribute your own stuff and put the production costs on your VISA card, your bank will still insist on getting paid whether your music makes money or not. The worst that a record label will do is drop you from your contract. Your bank won't be so forgiving.
I'm not sure what you mean about "sharing little with the represented artists." Like the US's ASCAP and BMI, they're societies run by and for artists. Their entire mission is to look out for the artists' interests (much like the the RIAA looks after the interests of its members -- the record labels). Performing rights societies take some off the top for administrative purposes, but the bulk is paid out to artists. That's what these societies do -- collect money on behalf of artists.
In the US, many composers and songwriters make a lot more money off of performing rights than they do from music sales.
I remember those days in the 1980s, too. At a time when LPs could be easily had for $10-$12, CDs were $18. That's the equivalent of about $34 in today's money. They charged this much because people were willing to pay.
Even as recently as the turn of the centuries, CDs were about $18 -- they hovered around $18 for a good 15 years or so; inflation took care of the cost-downs ($18 in 2000 dollars is roughly $22 in today's money).
Today, most new CDs can be had for about $10 or $12, or about a third of the price they were in the 1980s. Over 20 years, of course, the salaries of just about everybody involved in the production of the CDs has increased by about 3x.
If you're still waiting for CD prices to come down, or if you're bothered by industries that set pricing according to the curve, you'll drive yourself crazy.
Reading earnings releases makes it clear that the record companies blame income loss on the same thing that we do: the general downturn in the economy, the insurgence of digital music sales (which allow people to buy just a track at a time), and other things that are patently obvious. Similarly, the retail industry as a whole is going through bad times, but the retailers don't blame this on shoplifters.
People in the music industry lie. This doesn't mean that we should lie, too. And underestimating your enemy is a dangerous mistake.
The "no fair use here" statement referred to the fact that fair use doesn't apply to this case. The GP was not stating that fair use doctrine doesn't exist.
"None of these factors have been extensively examined that I know of."
Take a class on copyright law and you'll experience the joy of extensively examining cases in which fair use was invoked. You'll wish you never heard the phrase.
"The fourth factor is rather critical in this case."
No, it's not.
Potential market applied in Sony v. Universal because recording a TV show or a movie wasn't a direct substitute (direct market replacement) for watching the TV series or going to see moies in theatres. It doesn't apply here for the fundamental reason that this case is about distribution, and because a downloaded MP3 file is a perfectly acceptable substitute for the same MP3 downloaded from an online store (people who tell you that they like to torrent albums and then buy a copy on iTunes are generally lying). Remember, application of the potential market clause doesn't apply just to that particular defendant; the court looks at the act in abstract and its replacement for the direct market.
"It is illegal to share copyrighted material without permission from the copyright holder. But even this isn't the criminal (jailtime) kind of illegal, it's the civil (lawsuit) kind of illegal."
This is a dangerous myth. The threshold for criminal infringement is scarily low -- distribute just a few copies of the Adobe suite, or just one copy of a high-end vertical application, and you can be in criminal infringement territory.
US law limits imprisonment for criminal infringement to five years for first offenses, but still -- five years is a long time.
You make some good points, but I take issue with the very idea that the record industry is made of nothing but millionaires.
Sure, a small percentage of people in that industry -- whether they're artists or executives -- do very well, but that's the case with every industry. The IT and Internet industries have their own share, from hard-working executives to stock option millionaires who were at the right place at the right time. Of course, most people who work in IT aren't millionaires, but that's also the case for the record industry.
Many Slashdotters fly the jolly roger proudly, but we also claim not to like the Top 40 crap put out by the major labels -- so we're probably pirating mostly indie stuff. It's a safe bet that the indie labels have an even lower percentage of millionaires than the big labels. But if you choose to buy a track from a big label on iTunes, it's a bit like giving money to Google -- sure, a tiny portion of it goes to the guys on top, but most of it goes to the 99% of the rest of the people who are paid by the company.
"I do agree on the point the RIAA is a bunch of greedy bastards. And the value demanded for that music or whatever is not align with the perceived and experienced value delivered. But that is another issue."
Value isn't absolute. iTunes has sold billions of tracks. Their recent experiment of raising prices on in-demand tracks was a success -- they're making more money. Online music sellers have a very good understanding of the pricing that the market will bear. I've lost count of the times that a $0.99 track purchase or a $10 album purchase have given me hours and hours of enjoyment. Some folks will always choose to pirate, and many will use class warfare or the old "music is too expensive!" as their rationalization. But when Slashdotters claim that iTunes has it wrong, it's a bit like when Slashdotters claim that Microsoft should release Windows as OSS or that next year will *finally* be the year that Linux takes over the desktop. Microsoft won't, Linux won't, and although it's counterintuitive to many Slashdotters, Apple and the music industry as a whole are still making a metric buttload of money.
"I'm personally convinced that, for the most part, the "problem" will go away once getting music legally is easier than installing P2P apps and getting it illegally."
Among the Slashdot crowd, you're right -- installing a P2P app, locating a tracker, starting a download, waiting an indeterminate amount of time for it to finish, and then unzipping the archive is just as easy, or even easier, than clicking the "buy now" button in iTunes. But it's important to understand that for less technically sophisticated people, that's a pretty wide gulf. And the cold reality is that these less technically sophisticated people make up a big chunk of the music buying audience.
I should add that the iTunes store has not been the colossal failure that many Slashdotters like to paint it as. The number of tracks sold is somewhere in the billions, and it's actually the #1 music retailer in the US.
"Had media companies been able to get their act together and actually make a *standardized* DRM scheme that worked on all major devices and computers, it wouldn't have been as much of a failure as it has been."
"Failure" is a relative term (the iTunes did fine for many years with DRM) but DRM's failure is to everybody's benefit.
"I suspect that it is partially because downloading hasn't hurt them as an industry as much as poor quality product has, and so the driving motivation to come up with one standard for DRM isn't quite there."
I've yet to see any reports that sales at the iTunes store have decreased since they've dropped DRM, and the Amazon MP3 store (which was DRM-free from the get-go) has been doing great business. Thankfully, I think the music industry has all the motivation it needs to not consider returning to the days of DRM on downloaded tracks.
To be clear, the SGAE is not "The Spanish RIAA." The RIAA is a trade group representing record labels. The SGAE represents music composers, lyricists, and publishers. They are the Spanish equivalent of ASCAP and BMI.
In the eyes of many Slashdotters, this is a meaningless difference -- both groups are interested in protecting the rights of the folks behind the stuff that we feel should be freely (as in beer AND freedom) available and thus are the "bad guys." But if you're of the "artists good, record labels bad" mindset, then organizations like SGAE, ASCAP and BMI should wear white hats.
Why? Because membership in these organizations allows artists to make money completely independently of the record labels. The revenue streams that these groups protect just might be key to ditching the concept of record labels altogether, a notion which I believe most Slashdotters support.
"The only one who goes to trial claiming not to know how P2P works is the geek - and it wounds him to be called a liar."
Very well put.
Whenever a court case doesn't go our way, we claim that the judge, the jury, or the prosecution doesn't understand the technology involved. We even like to claim this when the court documents clearly demonstrate otherwise.
Yet when our favorite tracker catches heat, we like to claim that there might just happen to be the slightest chance that somebody might have used it for piracy, a lone voice lost in the rush of all those Linux distributions. We pretend that trackers don't have top-downloaded lists on their home pages, which their operators check daily. We pretend not to understand concepts like "contributory copyright infringment" and instead insist that no P2P user should ever be found liable, since it's just pointer files and thin slices of data.
"In fact, for it to serve the intended purpose, the copyright on any particular item has to end while that item is still current, relevant, and profitable."
I grant that you have your own theories about the intended purpose, but all we have is the wording of the constitution. It's tenuous to suggest that setting copyright to expire while the item is still "profitable" adheres to the spirit of the promotion clause. This requires the assumption that profitability is not in the interest of copyright holders. As you might remember your Con Law instructor explaining, the significant thing about its inclusion in the constitution is not that it's for a limited time, but that the rights are granted at all -- Statue of Anne was less than 80 years old at that point and by no means a globally accepted doctrine.
"By far, most pirates would gladly wait a few years to get said material for free."
Are you kidding? Pop music is like fish -- it doesn't have much of a shelf life. It's HUGELY ephemeral. It peaks and then it has little value. The top track on iTunes today is "I Gotta Feeling" by the Black Eyed Peas. It is, again, a tenuous assumption that your typical 16-year-old with a BT client to simply wait a few years if they can get that track for free NOW. If this track is like most Black Eyed Peas tracks and like most tracks on the Top 10 at any given time, we'll have barely remembered it in a few years.
I'm not sure how long it's been since you've been a teenager, but if I waved my magic wand and tomorrow copyrights were restored to their original (if I recall) 18-year term, I don't think you'd find many teenagers who were willing to live 18 years in the past in terms of their pop music enjoyment. They'd be pirating just as much as they do now, simply because they can, and because the stuff on the list of most-pirated tracks has little value beyond the short term.
Slashdot Mirror
"I am not that surprised but a bit disappointed. I thought that with Obama USA was going to take the lead on the issue of copyright in the 21st century. Do not expect many outbreaks from Europe right now. I hope he is just fixing issues by order of priority and that copyright reform is still somewhere on the list."
IP is one of the country's leading exports. As more and more manufacturing leaves the US and the world settles more firmly into the post-industrial age, the revenue stream from media, software and the like is going to be even more important.
We like to dream of a world in which Windows is open source, the Berne Convention is abolished, and the iTunes store shuts its doors, and we'll all live in an information utopia where art is created only for arts' sake. Linux and Magnatunes will finally get the success that they deserve, everybody who's ever been on "MTV Cribs" will be thrown into the lake of fire, yadda yadda. But the sad and ugly truth is that our nation's economy is run on IP, and money is a bit tight right now.
...of course, when I wrote "not DRM-free" I actually meant "now DRM-free."
"I don't care for iTunes, since most of the music on it is DRM-laden, and I refuse to buy music that behaves on someone else's whim."
Apple began phasing out DRM in January, and their entire catalog is not DRM-free. They joined the ranks of Amazon MP3 and several other online stores (some big, some small, some good, some not so good) that were already selling DRM-free music. The record companies waking up to the notion that DRM isn't useful was long overdue, but I'm glad finally happened.
"What needs to be done is have a subscription service that works across all platforms, costs some money ($15 a month? $30 a month?), and has a good catalog. That wouldn't solve everything, but it would be a steady stream of money, and it wouldn't be too hard to track which artists are the most listened to, and distribute the money accordingly. For what it's worth, Rhapsody also sells music a track at a time in DRM-free MP3 format."
Rhapsody does most of this. They're not Mac-friendly, but I pay $15 a month and I can listen to it on my Windows box and on my Squeezebox. Their royalty payment system works just like you describe.
"No, documented fact. Hence why they keep getting hit with fines for anti-trust/price-fixing violations."
When accusing record companies of being dishonest, it is important -- essential -- that we not spread lies as well. What is there to be gained? Seriously, Mr. MaskedSlacker -- with so many bad things that the record labels do, why make shit up? Why?
You're referring to the Universal price-fixing case of about a decade ago. It had absolutely nothing to do with collusion between record companies; it was all about a market technique called "minimum advertised pricing" -- known in the retail industry as MAP. Here's what happened:
At this point I should stop and point out that MAPs are still alive and well today. It's an interesting distinction -- authorized dealers are welcome to sell product at any price (otherwise it would be illegal), but if they advertise prices below a point set by the manufacturer, they don't get co-op money, or the best rebates, or other perks that authorized dealers typically get. A huge number of companies do MAPs, including companies well-loved by Slashdotters. Apple is one of them.
Anyway, back to 1999 or so:
The price-fixing settlement is a good thing if you subscribe to the "What's good for Wal-Mart is good for America" philosophy, or if you don't particularly mourn the death of the indie record store. On that point, however, I think Tower would be out of business today anyway; the price-fixing ruling simply hastened their death.
"You can a lifetime in practice and never get closer to the Supreme Court than the Gray Line bus tour."
I may be mistaken, but I believe it was Nessen himself who argued MGM v. Grokster before the Supreme Court. Perhaps he's hoping that lighting will strike twice.
"Nor is he entitled to flood the P2P nets with his own DiVX rips. The unlicensed wholesale distribution."
That's well-established (except perhaps in Slashdot land), but he has nothing to lose to try to change this. His house is already paid for.
Just to jump on what RedK wrote... I didn't explain because I thought it was already well-known that the RIAA is taking people to court for distribution, not downloading. To be fair, you're not the first to make this mistake.
Not sure why you think Tennenbaum deserves a "life sentence." When I wrote that statutory damages should be "reeled in" I meant that they should be lowered significantly. This might be a bit of American slang, so if you're not a US resident I can see the soure of confusion.
"A smart lawyer could argue this verdict is unconstitutional since a life sentence is "cruel and unusual punishment" for merely downloading ~$30 worth of songs."
Using the phrase "merely downloading" is dangerously misleading, as he was not merely downloading them.
Lots of torts have pretty high limits on statutory damages, so I don't think there's a constitutional issue here. I do, however, think that the statutory limits need to be reeled in. They were set back in the days when massive distribution was almost always done for profit (since there were a lot of costs involved in massive distribution). Now that the costs are nil, the statutory maximums should be lowered accordingly. I think they should top out at around $1,000 for works which have a market value of about a buck.
But this may be a "be careful what you wish for" issue. If the statutory maximum were $1K per work, then Tennenbaum might have been nailed for $30K. Or the record labels may have gone to court over 60 songs, not just 30. It still would have been a very bad day for the defendant. Reducing the statutory maximum wouldn't discourage copyright owners from going to court; the record labels are doing this to make a point, not to create a profit center.
They submitted fair use as a defense with the likely understanding that it would be rejected. This is Nesson's ticket to appeal.
My guess is that Nesson knows he can't get precedent set at the district court level. MGM v. Grokster made it to the Supreme Court, and I think Nesson wants to take this one to the Supremes. Tennenbaum didn't have a chance with the current interpretation of the law (basically "copyright infringement is bad, mmmkay?"), so he's trying to shake things up.
That's just my interpretation. The other possibility is that he's simply an idiot, but it's already established that he's a very smart guy.
The precedent is hugely against the defendant here in the application of the fair use defense. Every P2P service trial has had fair use come up, and they've been smacked down each time. Precedent is crystal clear here.
I'm not sure where you get your belief that the judge is biased. Remember, she's the one who yelled at the record companies for bankrupting defendants and warned them to stop. Her husband is the legal director for the Mass ACLU, also no friend of the record companies. Nesson has a judge who is very sympathetic to the cause.
Kinda. It's a bit like if the defense presented the argument that copyright infringement should be legal on Tuesdays, and that his client only fired up Kazaa on Tuesdays. The judge would not allow that defense, for the same two reasons: if the defense were accepted by the jury, then the defendant would obviously win, and because it's silly.
I think Tennenbaum's being set up to be figuratively nailed to the cross here.
The fundamental misunderstanding here might be that this is a district court. Fair use has been tried as a defense in every P2P service or tracker trial, going back to the original Napster. Each time it's been made clear that fair use doesn't apply. I don't know how more clear a reading of the law is required here. Keep in mind that even the EFF isn't backing up Nesson on this one. But either way, district courts don't set precedent. If you still believe that there's a glimmer of a hope that fair use can apply, then that's what the appeals process is for. It's kicked up to a higher court which has more flexibility in setting precedent.
I know you believe the judge to be "brain dead" but it's important to understand that she's no friend of the record companies. She and Nesson go back a long way (which is one reason, I suspect, that she went out of her way to give examples of how fair use might apply to a file sharing case). She's chastised the record companies in the past for "bankrupting" defendants, and her husband is the legal director of the Massachusetts ACLU, which has gone up against the record labels in the past. Nesson could not have found a more favorable judge.
"Please NYCL, save me from confusion."
Anybody with an understanding of the facts can explain it to you, and I believe that a few folks have already tried. If you're looking specifically to NYCL to tell you what you want to hear, be careful -- he's a smart guy and I have tremendous respect for what he's doing, but he has a very clear agenda here.
I also disagree with your assertion that the defense is incompetent. I think I understand why he's taking this unorthodox approach; that's perhaps left for another discussion.
"Most artists lose money on record sales as a result, or make very little."
Artists are not asked to contribute their own cash toward the production of a record, so they're not losing money. If an album doesn't sell well, the record company loses money, but the artist breaks even.
You are, however, correct about self-produced albums. If you produce and distribute your own stuff and put the production costs on your VISA card, your bank will still insist on getting paid whether your music makes money or not. The worst that a record label will do is drop you from your contract. Your bank won't be so forgiving.
I'm not sure what you mean about "sharing little with the represented artists." Like the US's ASCAP and BMI, they're societies run by and for artists. Their entire mission is to look out for the artists' interests (much like the the RIAA looks after the interests of its members -- the record labels). Performing rights societies take some off the top for administrative purposes, but the bulk is paid out to artists. That's what these societies do -- collect money on behalf of artists.
In the US, many composers and songwriters make a lot more money off of performing rights than they do from music sales.
The RIAA is a record company trade group. The SGAE is a performance rights group, representing artists. This is an important distinction.
I remember those days in the 1980s, too. At a time when LPs could be easily had for $10-$12, CDs were $18. That's the equivalent of about $34 in today's money. They charged this much because people were willing to pay.
Even as recently as the turn of the centuries, CDs were about $18 -- they hovered around $18 for a good 15 years or so; inflation took care of the cost-downs ($18 in 2000 dollars is roughly $22 in today's money).
Today, most new CDs can be had for about $10 or $12, or about a third of the price they were in the 1980s. Over 20 years, of course, the salaries of just about everybody involved in the production of the CDs has increased by about 3x.
If you're still waiting for CD prices to come down, or if you're bothered by industries that set pricing according to the curve, you'll drive yourself crazy.
Reading earnings releases makes it clear that the record companies blame income loss on the same thing that we do: the general downturn in the economy, the insurgence of digital music sales (which allow people to buy just a track at a time), and other things that are patently obvious. Similarly, the retail industry as a whole is going through bad times, but the retailers don't blame this on shoplifters.
People in the music industry lie. This doesn't mean that we should lie, too. And underestimating your enemy is a dangerous mistake.
"1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense."
Why do you say that? What on earth do you think happens during the hearing phase?
If judges weren't allowed to throw out defenses before a case goes to jury trial, we'd all be doing a lot more jury duty.
The "no fair use here" statement referred to the fact that fair use doesn't apply to this case. The GP was not stating that fair use doctrine doesn't exist.
"None of these factors have been extensively examined that I know of."
Take a class on copyright law and you'll experience the joy of extensively examining cases in which fair use was invoked. You'll wish you never heard the phrase.
"The fourth factor is rather critical in this case."
No, it's not.
Potential market applied in Sony v. Universal because recording a TV show or a movie wasn't a direct substitute (direct market replacement) for watching the TV series or going to see moies in theatres. It doesn't apply here for the fundamental reason that this case is about distribution, and because a downloaded MP3 file is a perfectly acceptable substitute for the same MP3 downloaded from an online store (people who tell you that they like to torrent albums and then buy a copy on iTunes are generally lying). Remember, application of the potential market clause doesn't apply just to that particular defendant; the court looks at the act in abstract and its replacement for the direct market.
"It is illegal to share copyrighted material without permission from the copyright holder. But even this isn't the criminal (jailtime) kind of illegal, it's the civil (lawsuit) kind of illegal."
This is a dangerous myth. The threshold for criminal infringement is scarily low -- distribute just a few copies of the Adobe suite, or just one copy of a high-end vertical application, and you can be in criminal infringement territory.
US law limits imprisonment for criminal infringement to five years for first offenses, but still -- five years is a long time.
You make some good points, but I take issue with the very idea that the record industry is made of nothing but millionaires.
Sure, a small percentage of people in that industry -- whether they're artists or executives -- do very well, but that's the case with every industry. The IT and Internet industries have their own share, from hard-working executives to stock option millionaires who were at the right place at the right time. Of course, most people who work in IT aren't millionaires, but that's also the case for the record industry.
Many Slashdotters fly the jolly roger proudly, but we also claim not to like the Top 40 crap put out by the major labels -- so we're probably pirating mostly indie stuff. It's a safe bet that the indie labels have an even lower percentage of millionaires than the big labels. But if you choose to buy a track from a big label on iTunes, it's a bit like giving money to Google -- sure, a tiny portion of it goes to the guys on top, but most of it goes to the 99% of the rest of the people who are paid by the company.
"I do agree on the point the RIAA is a bunch of greedy bastards. And the value demanded for that music or whatever is not align with the perceived and experienced value delivered. But that is another issue."
Value isn't absolute. iTunes has sold billions of tracks. Their recent experiment of raising prices on in-demand tracks was a success -- they're making more money. Online music sellers have a very good understanding of the pricing that the market will bear. I've lost count of the times that a $0.99 track purchase or a $10 album purchase have given me hours and hours of enjoyment. Some folks will always choose to pirate, and many will use class warfare or the old "music is too expensive!" as their rationalization. But when Slashdotters claim that iTunes has it wrong, it's a bit like when Slashdotters claim that Microsoft should release Windows as OSS or that next year will *finally* be the year that Linux takes over the desktop. Microsoft won't, Linux won't, and although it's counterintuitive to many Slashdotters, Apple and the music industry as a whole are still making a metric buttload of money.
"I'm personally convinced that, for the most part, the "problem" will go away once getting music legally is easier than installing P2P apps and getting it illegally."
Among the Slashdot crowd, you're right -- installing a P2P app, locating a tracker, starting a download, waiting an indeterminate amount of time for it to finish, and then unzipping the archive is just as easy, or even easier, than clicking the "buy now" button in iTunes. But it's important to understand that for less technically sophisticated people, that's a pretty wide gulf. And the cold reality is that these less technically sophisticated people make up a big chunk of the music buying audience.
I should add that the iTunes store has not been the colossal failure that many Slashdotters like to paint it as. The number of tracks sold is somewhere in the billions, and it's actually the #1 music retailer in the US.
"Had media companies been able to get their act together and actually make a *standardized* DRM scheme that worked on all major devices and computers, it wouldn't have been as much of a failure as it has been."
"Failure" is a relative term (the iTunes did fine for many years with DRM) but DRM's failure is to everybody's benefit.
"I suspect that it is partially because downloading hasn't hurt them as an industry as much as poor quality product has, and so the driving motivation to come up with one standard for DRM isn't quite there."
I've yet to see any reports that sales at the iTunes store have decreased since they've dropped DRM, and the Amazon MP3 store (which was DRM-free from the get-go) has been doing great business. Thankfully, I think the music industry has all the motivation it needs to not consider returning to the days of DRM on downloaded tracks.
To be clear, the SGAE is not "The Spanish RIAA." The RIAA is a trade group representing record labels. The SGAE represents music composers, lyricists, and publishers. They are the Spanish equivalent of ASCAP and BMI.
In the eyes of many Slashdotters, this is a meaningless difference -- both groups are interested in protecting the rights of the folks behind the stuff that we feel should be freely (as in beer AND freedom) available and thus are the "bad guys." But if you're of the "artists good, record labels bad" mindset, then organizations like SGAE, ASCAP and BMI should wear white hats.
Why? Because membership in these organizations allows artists to make money completely independently of the record labels. The revenue streams that these groups protect just might be key to ditching the concept of record labels altogether, a notion which I believe most Slashdotters support.
"The only one who goes to trial claiming not to know how P2P works is the geek - and it wounds him to be called a liar."
Very well put.
Whenever a court case doesn't go our way, we claim that the judge, the jury, or the prosecution doesn't understand the technology involved. We even like to claim this when the court documents clearly demonstrate otherwise.
Yet when our favorite tracker catches heat, we like to claim that there might just happen to be the slightest chance that somebody might have used it for piracy, a lone voice lost in the rush of all those Linux distributions. We pretend that trackers don't have top-downloaded lists on their home pages, which their operators check daily. We pretend not to understand concepts like "contributory copyright infringment" and instead insist that no P2P user should ever be found liable, since it's just pointer files and thin slices of data.
And we act outraged when we keep losing.
"You couldn't possibly be more wrong."
Not sure how this is helpful.
"In fact, for it to serve the intended purpose, the copyright on any particular item has to end while that item is still current, relevant, and profitable."
I grant that you have your own theories about the intended purpose, but all we have is the wording of the constitution. It's tenuous to suggest that setting copyright to expire while the item is still "profitable" adheres to the spirit of the promotion clause. This requires the assumption that profitability is not in the interest of copyright holders. As you might remember your Con Law instructor explaining, the significant thing about its inclusion in the constitution is not that it's for a limited time, but that the rights are granted at all -- Statue of Anne was less than 80 years old at that point and by no means a globally accepted doctrine.
"By far, most pirates would gladly wait a few years to get said material for free."
Are you kidding? Pop music is like fish -- it doesn't have much of a shelf life. It's HUGELY ephemeral. It peaks and then it has little value. The top track on iTunes today is "I Gotta Feeling" by the Black Eyed Peas. It is, again, a tenuous assumption that your typical 16-year-old with a BT client to simply wait a few years if they can get that track for free NOW. If this track is like most Black Eyed Peas tracks and like most tracks on the Top 10 at any given time, we'll have barely remembered it in a few years.
I'm not sure how long it's been since you've been a teenager, but if I waved my magic wand and tomorrow copyrights were restored to their original (if I recall) 18-year term, I don't think you'd find many teenagers who were willing to live 18 years in the past in terms of their pop music enjoyment. They'd be pirating just as much as they do now, simply because they can, and because the stuff on the list of most-pirated tracks has little value beyond the short term.