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:
Weekend Edition
July 01, 2016
Friday - Sunday
Andrew Levine
Hillary: Ordinarily Awful or Uncommonly Awful?
Pam Martens
Clinton Says Wall Street Banks Aren’t the Threat, But Her Platform Writers Think They are
Jason Hirthler
Washington’s Not-So-Invisible Hand: It’s Not Economics, It’s Empire
Ismael Hossein-Zadeh
Marx on Financial Bubbles: Much Keener Insights Than Contemporary Economists
Pete Dolack
Brexit Will Only Count if Everybody Leaves the EU
Evan Jones
Ancillary Lessons from Brexit
Aidan O'Brien
Brexit: the English and Welsh Enlightenment
Jeremy R. Hammond
How Turkey’s Reconciliation Deal with Israel Harms the Palestinians
Margaret Kimberley
Beneficial Chaos: the Good News About Brexit
Phyllis Bennis
From Paris to Istanbul, More ‘War on Terror’ Means More Terrorist Attacks
Ishmael Reed
OJ and Jeffrey Toobin: Black Bogeyman Auctioneer
Ron Jacobs
Let There Be Rock
Ajamu Baraka
Paris, Orlando and Turkey: Displacing the Narrative of Western Innocence
Robert Fantina
The First Amendment, BDS and Third-Party Candidates
David Rosen
Whatever Happened to Utopia?
Andre Vltchek
Brexit – Let the UK Screw Itself!
Jonathan Latham
107 Nobel Laureate Attack on Greenpeace Traced Back to Biotech PR Operators
Steve Horn
Fracked Gas LNG Exports Were Centerpiece In Promotion of Panama Canal Expansion, Documents Reveal
Robert Koehler
The Right to Bear Courage
Colin Todhunter
Pro-GMO Spin Masquerading as Science Courtesy of “Shameful White Men of Privilege”
Binoy Kampmark
Who is Special Now? The Mythology Behind the US-British Relationship
Mark B. Baldwin
Russia to the Grexit?
Andrew Wimmer
Killer Grief
Manuel E. Yepe
Sanders, Socialism and the New Times
Franklin Lamb
ISIS is Gone, But Its Barbarity Still Haunts Palmyra
Mark Weisbrot
A Policy of Non-Intervention in Venezuela Would be a Welcome Change
Cesar Chelala
How Tobacco Became the Opium War of the 21st Century
Joseph Natoli
How We Reached the Point Where We Can’t Hear Each Other
Andrew Stewart
Skip “Hamilton” and Read Gore Vidal’s “Burr”
Christopher Brauchli
Educating Kansas
George Wuerthner
Ranching and the Future of the Sage Grouse
Thomas Knapp
Yes, a GOP Delegate Revolt is Possible
Gilbert Mercier
Democracy Is Dead
Andy Piascik
The Hills of Connecticut: Where Theatre and Life Became One
Charles R. Larson
Mychal Denzel Smith’s “Invisible Man, Got the Whole World Watching: a Young Black Man’s Education”
Barbara Nimri Aziz
Four Morning Ducks
June 30, 2016
Richard Moser
Clinton and Trump, Fear and Fascism
Pepe Escobar
The Three Harpies are Back!
Ramzy Baroud
Searching for a ‘Responsible Adult’: ‘Is Brexit Good for Israel?’
Dave Lindorff
What is Bernie Up To?
Thomas Barker
Saving Labour From Blairism: the Dangers of Confining the Debate to Existing Members
Jan Oberg
Why is NATO So Irrational Today?
John Stauber
The Debate We Need: Gary Johnson vs Jill Stein
Steve Horn
Obama Administration Approved Over 1,500 Offshore Fracking Permits
Rob Hager
Supreme Court Legalizes Influence Peddling: McDonnell v. United States
FacebookTwitterGoogle+RedditEmail