FacebookTwitterGoogle+RedditEmail

The RIAA is Full of Bunk, So is the New York Times

by BILL GLAHN

On September 12, 2003, the New York Times defended the Recording Industry Association of America’s recent lawsuits against P2P music file-sharers [Suing Music Dowloaders]. The editorial was based on a number of flawed concepts, which just goes to show that if the RIAA states something loudly enough and often enough, even the New York Times will accept it as fact. I thought the New York Times was trying to do a little more fact checking these days before printing stories out of school.

Although many important ideological arguments have been made regarding the morality or immorality of file-sharing, I will limit my points here strictly to the confines of the capitalistic system that we exist in and established legal principals. The New York Times calls suing file-sharers the RIAA’s best legal strategy. The problem is this strategy doesn’t even hold up in those arenas.

The first and most alarming position that has been propagated by the RIAA and apparently accepted by the New York Times is the one that “stealing is stealing, online or in a store.” In fact, and in law, this is clearly not as black & white as the music industry would like us to believe.

The notion of copyright infringement as theft was clearly addressed in the 1985 Supreme Court decision of Dowling v. United States. While this case involved hard goods (phonograph records), Justice Harry Blackmun was most certainly speaking of abstract property (copyrights) when he wrote these words in his majority decision overturning Dowling’s conviction of interstate transport of stolen property: “(copyright infringement) does not easily equate with theft, conversion, or fraud… The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over copyright; nor does he wholly deprive its owner of its use.”

This decision was based on established law with a long appellate history. The Digital Millennium Copyright Act, under which the RIAA gets its policing powers, is not and is largely untested in the courts. Paul Dowling was convicted of copyright infringement (a misdemeanor at the time) but was vindicated on the more serious crime of theft.

This brings us to the point of whether or not file-sharers meet the criteria of “fair use” or are indeed guilty of copyright infringement. This is less clear. Let’s assume that they don’t meet the confines of the fair use doctrine. Is it the RIAA’s lawful right to sue them or does that right belong to someone else? File-sharers have not entered into a contract with artists and do not collect fees for the songs that are up-loaded from their computers. Therefore, they are not stealing anything. Infringing perhaps. But not stealing. But does the RIAA have the right to speak for the artist if such an offense has occurred? As Fred Wilhelms pointed out in the September 6 RIAA Watch column, there are some serious questions about the artists’ contracts with their labels and whether they include digital rights. And also about how the payments are to be made to the artists. The major labels are collecting fees from for-pay download sites such as iTunes and also through lawsuit settlements against file-sharers. RIAA Watch has already pointed out how the industry may be pocketing money that isn’t theirs. Now Cory Sherman, president of the RIAA, has stated that none of the lawsuit money will be passed on to the artists either.

These comments beg the question, “Who is really doing the stealing here?” Artist’s incomes are tangible. Copyrights are not. I’d call pocketing income that has already been collected as stealing. I wonder if current Justices O’Conner, Rehnquist, and Stevens, all who supported the 1985 Dowling decision, would agree.

RIAA Watch Notes: The manner in which the RIAA has handled their subpoenas and the public reaction has prompted Sen. Sam Brownback (R, Kans) to get off his duff and introduce the Consumers, Schools, and Libraries Digital Rights Management Awareness Act of 2003, a privacy bill that would change the way in which the RIAA conducts their terrorism. They would no longer be able to subpoena ISPs for the personal information by simply filling out a form and getting a court clerk’s signature.

Brownback states, “This will provide immediate privacy protections to Internet subscribers by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread, and provides the accused with due process required to properly defend themselves.” Apparently, Brownback isn’t overly familiar with the RIAA. They have been taking their illicit intentions to court for years. But if this legislation is passed, it ought to slow them down a bit.

The RIAA, naturally, isn’t happy with Brownback’s proposed legislation. Included in their response was this statement, “The rules of the road of the past five years will be thrown out the window, and that’s not something anyone should wish for.” Of course, the RIAA had no objection when the rules of the road for the previous 222 years were thrown out in 1998.

It’s already been noted elsewhere that at their current pace, it will take the RIAA another 2000+ years to sue 60 million file-sharers. If there is a venue fight for the lawsuits (and I expect there will be) the RIAA may wind up having to enter courtrooms in every local jurisdiction in these here United States. The Big 5 may be bankrupt before they’re finished. Wouldn’t that be nice. So much for their “best legal strategy.”

BILL GLAHN writes the RIAA Watch column for CounterPunch. His Husgow Record Guide appears at www.mondogordo.com Feature articles appear in BigO magazine.

Alt.Culture.Guide–The Journal of (Un)Popular Culture (Rev. Keith A. Gordon with BILL GLAHN, Anthem Pop/Kult Publishing) may be purchased online from Sound Products.

 

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

February 27, 2017
Anthony DiMaggio
Media Ban! Making Sense of the War Between Trump and the Press
Dave Lindorff
Resume Inflation at the NSC: Lt. General McMaster’s Silver Star Was Essentially Earned for Target Practice
Conn Hallinan
Is Trump Moderating US Foreign Policy? Hardly
Norman Pollack
Political Castration of State: Militarization of Government
Kenneth Surin
Inside Dharavi, a Mumbai Slum
Lawrence Davidson
Truth vs. Trump
Binoy Kampmark
The Extradition Saga of Kim Dotcom
Robert Fisk
Why a Victory Over ISIS in Mosul Might Spell Defeat in Deir Ezzor
David Swanson
Open Guantanamo!
Ted Rall
The Republicans May Impeach Trump
Lawrence Wittner
Why Should Trump―or Anyone―Be Able to Launch a Nuclear War?
Andrew Stewart
Down with Obamacare, Up with Single Payer!
Colin Todhunter
Message to John Beddington and the Oxford Martin Commission
David Macaray
UFOs: The Myth That Won’t Die?
Weekend Edition
February 24, 2017
Friday - Sunday
Jeffrey St. Clair
Roaming Charges: Exxon’s End Game Theory
Pierre M. Sprey - Franklin “Chuck” Spinney
Sleepwalking Into a Nuclear Arms Race with Russia
Paul Street
Liberal Hypocrisy, “Late-Shaming,” and Russia-Blaming in the Age of Trump
Ajamu Baraka
Malcolm X and Human Rights in the Time of Trumpism: Transcending the Master’s Tools
John Laforge
Did Obama Pave the Way for More Torture?
Mike Whitney
McMaster Takes Charge: Trump Relinquishes Control of Foreign Policy 
Patrick Cockburn
The Coming Decline of US and UK Power
Louisa Willcox
The Endangered Species Act: a Critical Safety Net Now Threatened by Congress and Trump
Vijay Prashad
A Foreign Policy of Cruel Populism
John Chuckman
Israel’s Terrible Problem: Two States or One?
Matthew Stevenson
The Parallax View of Donald Trump
Norman Pollack
Drumbeat of Fascism: Find, Arrest, Deport
Stan Cox
Can the Climate Survive Electoral Democracy? Maybe. Can It Survive Capitalism? No.
Ramzy Baroud
The Trump-Netanyahu Circus: Now, No One Can Save Israel from Itself
Edward Hunt
The United States of Permanent War
David Morgan
Trump and the Left: a Case of Mass Hysteria?
Pete Dolack
The Bait and Switch of Public-Private Partnerships
Mike Miller
What Kind of Movement Moment Are We In? 
Elliot Sperber
Why Resistance is Insufficient
Brian Cloughley
What are You Going to Do About Afghanistan, President Trump?
Binoy Kampmark
Warring in the Oncology Ward
Yves Engler
Remembering the Coup in Ghana
Jeremy Brecher
“Climate Kids” v. Trump: Trial of the Century Pits Trump Climate Denialism Against Right to a Climate System Capable of Sustaining Human Life”
Jonathan Taylor
Hate Trump? You Should Have Voted for Ron Paul
Franklin Lamb
Another Small Step for Syrian Refugee Children in Beirut’s “Aleppo Park”
Ron Jacobs
The Realist: Irreverence Was Their Only Sacred Cow
Andre Vltchek
Lock up England in Jail or an Insane Asylum!
Rev. William Alberts
Grandiose Marketing of Spirituality
Paul DeRienzo
Three Years Since the Kitty Litter Disaster at Waste Isolation Pilot Plant
Eric Sommer
Organize Workers Immigrant Defense Committees!
Steve Cooper
A Progressive Agenda
FacebookTwitterGoogle+RedditEmail