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

March 28, 2017
Mike Whitney
Ending Syria’s Nightmare will Take Pressure From Below 
Mark Kernan
Memory Against Forgetting: the Resonance of Bloody Sunday
John McMurtry
Fake News: the Unravelling of US Empire From Within
Ron Jacobs
Mad Dog, Meet Eris, Queen of Strife
Michael J. Sainato
State Dept. Condemns Attacks on Russian Peaceful Protests, Ignores Those in America
Ted Rall
Five Things the Democrats Could Do to Save Their Party (But Probably Won’t)
Linn Washington Jr.
Judge Neil Gorsuch’s Hiring Practices: Privilege or Prejudice?
Philippe Marlière
Benoît Hamon, the Socialist Presidential Hopeful, is Good News for the French Left
Norman Pollack
Political Cannibalism: Eating America’s Vitals
Bruce Mastron
Obamacare? Trumpcare? Why Not Cubacare?
David Macaray
Hollywood Screen and TV Writers Call for Strike Vote
Christian Sorensen
We’ve Let Capitalism Kill the Planet
Rodolfo Acuna
What We Don’t Want to Know
Binoy Kampmark
The Futility of the Electronics Ban
Andrew Moss
Why ICE Raids Imperil Us All
March 27, 2017
Robert Hunziker
A Record-Setting Climate Going Bonkers
Frank Stricker
Why $15 an Hour Should be the Absolute Minimum Minimum Wage
Melvin Goodman
The Disappearance of Bipartisanship on the Intelligence Committees
Patrick Cockburn
ISIS’s Losses in Syria and Iraq Will Make It Difficult to Recruit
Russell Mokhiber
Single-Payer Bernie Morphs Into Public Option Dean
Gregory Barrett
Can Democracy Save Us?
Dave Lindorff
Budget Goes Military
John Heid
Disappeared on the Border: “Chase and Scatter” — to Death
Mark Weisbrot
The Troubling Financial Activities of an Ecuadorian Presidential Candidate
Robert Fisk
As ISIS’s Caliphate Shrinks, Syrian Anger Grows
Michael J. Sainato
Democratic Party Continues Shunning Popular Sanders Surrogates
Paul Bentley
Nazi Heritage: the Strange Saga of Chrystia Freeland’s Ukrainian Grandfather
Christopher Ketcham
Buddhism in the Storm
Thomas Barker
Platitudes in the Wake of London’s Terror Attack
Mike Hastie
Insane Truths: a Vietnam Vet on “Apocalypse Now, Redux”
Binoy Kampmark
Cyclone Watch in Australia
Weekend Edition
March 24, 2017
Friday - Sunday
Michael Hudson
Trump is Obama’s Legacy: Will this Break up the Democratic Party?
Eric Draitser
Donald Trump and the Triumph of White Identity Politics
Jeffrey St. Clair
Roaming Charges: Nothing Was Delivered
Andrew Levine
Ryan’s Choice
Joshua Frank
Global Coal in Freefall, Tar Sands Development Drying Up (Bad News for Keystone XL)
Anthony DiMaggio
Ditching the “Deep State”: The Rise of a New Conspiracy Theory in American Politics
Rob Urie
Boris and Natasha Visit Fantasy Island
John Wight
London and the Dreary Ritual of Terrorist Attacks
Paul Buhle
The CIA and the Intellectuals…Again
David Rosen
Why Did Trump Target Transgender Youth?
Vijay Prashad
Inventing Enemies
Ben Debney
Outrage From the Imperial Playbook
M. Shadee Malaklou
An Open Letter to Duke University’s Class of 2007, About Your Open Letter to Stephen Miller
Michael J. Sainato
Bernie Sanders’ Economic Advisor Shreds Trumponomics
FacebookTwitterGoogle+RedditEmail