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

Weekend Edition
May 26, 2017
Friday - Sunday
Anthony DiMaggio
Swamp Politics, Trump Style: “Russiagate” Diverts From the Real White House Scandals
Paul Street
It’s Not Gonna Be Okay: the Nauseating Nothingness of Neoliberal Capitalist and Professional Class Politics
Jeffrey St. Clair
The ICEmen Cometh
Ron Jacobs
The Deep State is the State
Pete Dolack
Why Pence Might be Even Worse Than Trump
Patrick Cockburn
We Know What Inspired the Manchester Attack, We Just Won’t Admit It
Thomas Powell
The Dirty Secret of the Korean War
Mark Ashwill
The Fat Lady Finally Sings: Bob Kerrey Quietly Resigns from Fulbright University Vietnam Leadership Position
John Davis
Beyond Hope
Uri Avnery
The Visitation: Trump in Israel
Ralph Nader
The Left/Right Challenge to the Failed “War on Drugs”
Traci Yoder
Free Speech on Campus: a Critical Analysis
Dave Lindorff
Beware the Supporter Scorned: Upstate New York Trump Voters Hit Hard in President’s Proposed 2018 Budget
Daniel Read
“Sickening Cowardice”: Now More Than Ever, Britain’s Theresa May Must be Held to Account on the Plight of Yemen’s Children
Ana Portnoy
Before the Gates: Puerto Rico’s First Bankruptcy Trial
M. Reza Behnam
Rethinking Iran’s Terrorism Designation
Brian Cloughley
Ukraine and the NATO Military Alliance
Josh Hoxie
Pain as a Policy Choice
David Macaray
Stephen Hawking Needs to Keep His Mouth Shut
Ramzy Baroud
Fear as an Obstacle to Peace: Why Are Israelis So Afraid?
Kathleen Wallace
The Bilious Incongruity of Trump’s Toilet
Seth Sandronsky
Temping Now
Alan Barber – Dean Baker
Blue Collar Blues: Manufacturing Falls in Indiana, Ohio and Pennsylvania in April
Jill Richardson
Saving America’s Great Places
Richard Lawless
Are Credit Rating Agencies America’s Secret Fifth Column?
Louis Proyect
Venezuela Reconsidered
Murray Dobbin
The NDP’s Singh and Ashton: Flash Versus Vision
Ron Leighton
Endarkenment: Postmodernism, Identity Politics, and the Attack on Free Speech
Anthony Papa
Drug War Victim: Oklahoma’s Larry Yarbrough to be Freed after 23 Years in Prison
Rev. John Dear
A Call to Mobilize the Nation Over the Next 18 Months
Yves Engler
Why Anti-Zionism and Anti-Jewish Prejudice Have to Do With Each Other
Ish Mishra
Political Underworld and Adventure Journalism
Binoy Kampmark
Roger Moore in Bondage
Rob Seimetz
Measuring Manhoods
Edward Curtin
Sorry, You’re Not Invited
Vern Loomis
Winning the Lottery is a State of Mind
Charles R. Larson
Review: Mary V. Dearborn’s “Ernest Hemingway”
David Yearsley
The Ethos of Mayfest
May 25, 2017
Jennifer Matsui
The Rise of the Alt-Center
Michael Hudson
Another Housing Bubble?
Robert Fisk
Trump Meets the New Leader of the Secular World, Pope Francis
John Laforge
Draft Treaty Banning Nuclear Weapons Unveiled
Benjamin Dangl
Trump’s Budget Expands War on the Backs of America’s Poor
Alice Donovan
US-Led Air Strikes Killed Record Number of Civilians in Syria
Andrew Moss
The Meaning of Trump’s Wall
FacebookTwitterGoogle+RedditEmail