RIAA Bosses Try To Explain Why Suing College Kids Is Good For Business

from the try-that-one-again? dept

With the RIAA's recent new push to bully college students into paying up its "settlement" fees without giving them any chance to defend themselves, it seems that RIAA CEO Mitch Bainwol and RIAA President Cary Sherman have decided that they need to write an opinion piece explaining why they're suing so many college kids. The arguments aren't particularly surprising -- but it's a bit depressing that Bainwol and Sherman clearly have decided to ignore the fact that nearly every one of their arguments has been disproved already. For an organization trying to prove that it actually understands the challenge its members face, Bainwol and Sherman only trot out old, tired and simply wrong arguments. If the execs at the big music labels had any insight, they would fire these two for leading the industry down a disastrous trail.

They start by trotting out the bogus stats about "losses" due to piracy -- which are based not just on assuming that every download is a lost sale, but often using ridiculous multipliers that are allowed in calculating damages in lawsuits. To support these claims, though, they point out that "finding a record store still in business anywhere near a campus is a difficult assignment at best." That ignores quite a few important points. First, academic (not RIAA-financed) studies have shown that unauthorized downloading has no noticeable impact on CD sales. But, more importantly, it ignores the overall shift in the music buying market. It's increasingly difficult to find a standalone record store anywhere thanks to the shutting down of places like Tower Records and Warehouse Music. More important, however, is the fact that the only retailers profiting off of music sales are those that use it as a loss leader -- including Apple, but also Wal-Mart, Best Buy and others.

Sherman and Bainwol then try to get moral on everyone -- claiming that this is about taking the moral high ground (which you should remember the next time you listen to your RIAA label-released song about drugs, sex and murder). They repeatedly call it "stealing," when everyone from the Supreme Court on down have pointed out that copyright infringement isn't stealing. Bainwol and Sherman also screw up (on purpose?) by stating at one point that "downloading" music is illegal. That's never been shown. Uploading or "sharing" music has been shown to be infringement in terms of distribution -- but downloading still has never been found illegal itself. They also claim that the lawsuits are working, ignoring the fact that since they began the strategy of suing, file sharing has only increased. And we thought doing the same thing over and over again while not getting the intended result was the definition of insanity.

They then go on to whine about universities not helping them enough in turning over students -- but perhaps that's because universities recognize the importance of due process in letting an accused person defend themselves in a court of law. Bainwol and Sherman talk about all the "education" policies they've undertaken on college campuses... but conveniently leave out telling students to drop out of school in order to pay off an RIAA "settlement" offer.

The good news, though, is that if you read the comments from readers below the article (at least as of this posting) they're almost universally intelligent, well written, well thought out rebuttals against the RIAA's position, pointing out many of these mistakes, and how the RIAA's weak attempt to defend an obsolete business model by threatening, bullying and suing students isn't likely to help the big four record labels who fund it stay in business. Of course, we doubt that Sherman and Bainwol will take those messages to heart -- or even look to help the labels they represent adapt to the modern era. They'll just keep on whining about "theft" and pushing for the government to put in place new protectionist laws to protect the old, obsolete business model.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Stan Schroeder, Mar 19th, 2007 @ 7:44am

    Downloading is not illegal

    "Uploading or "sharing" music has been shown to be infringement in terms of distribution -- but downloading still has never been found illegal itself." - I can't reiterate this point enough, but it seems to be a battle we're losing. Many are buying in to the philosophy of "download a song, steal a handbag", although there are several fundamental and obvious differences between the two.

    No RIAA exec will ever admit it, because their brainwashing tactics are working.

     

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  2.  
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    Overcast, Mar 19th, 2007 @ 7:47am

    It's really just like 'Netscape part redux'.

    They will likely end up the same way too... bought out by Yahoo or something.

     

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  3.  
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    Aninsight, Mar 19th, 2007 @ 8:00am

    Well, awareness is the key to shutting down the RIAA. Pretty soon enough people will be hopefully aware of the problems with the RIAA including the big four record industries and they'll cut the funds all together eventually. It's just going to take some time but I think it'll happen. I think the only people the RIAA are successfully brainwashing are kids. Those kids will eventually grow up and laugh at the RIAA. =P...

     

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  4.  
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    Tommy 2face, Mar 19th, 2007 @ 8:14am

    http://p2plawsuits.com

    I found this site which some people are calling the "RIAA extortion center" which is used to "settle" your suit online. Wow we get to just skip the whole legal process. Anyway they also left this number (913) 234-8181.

    Also here is a parody site http://www.p2pextortion.com/

    Bon appetite

     

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  5.  
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    Sanguine Dream, Mar 19th, 2007 @ 8:14am

    Continue to vote with your wallet!

    Perhaps that when the execs of the RIAA realize that all this nonsense about trying to maintain a sadly outdated system they will learn to embrace technology instead of fighting it.

    Damn shame. The RIAA was in the prime position to take the lead in digital distribution. They could have set the example and been the leader of the shift to digital if only they weren't afraid of losing money.

     

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  6.  
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    Mark Buckman, Mar 19th, 2007 @ 8:43am

    It's all about publicity

    The RIAA must feel big and bad receiving the attention of the media for prosecuting individuals they would like to label "criminals". No one has lost anything when a song is downloaded, if anything, the artist(s) receive more exposure to their audience.

     

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  7.  
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    Brian, Mar 19th, 2007 @ 8:48am

    RIAA

    Has anyone but me noticed that the ONLY industries that do not allow refunds are Movies,Music and Software. The three most pirated industries. Granted they are about the only thing you can pirate. They are also they only things that if you are unsatisfied with the product.....they don't care. If I buy a CD, and I only like 2 songs, they don't care. I spend 20$ to go to a movie with great reviews..it sucks, they don;t care.Buy software for my computer, doesn't un...they don''t care. Whatever happened to customer satisfaction. I guess every good con artist knows....take the money and run.

     

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  8.  
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    dan, Mar 19th, 2007 @ 8:50am

    Considering the major record companies filter what they want to be released. The downloading option offers more of a selection then these record companies would ever offer.

    It is a cheep and affordable way to offer more to your customers instead of less, thus having a larger volume of sales which would more then compensate for the loss of sales of physical Cd's.

    They are driving people to illegal downloads when they could have just started the craze themselves and be sitting with a profit instead of a loss on their account books.

    Dan

     

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  9.  
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    John Craig, Mar 19th, 2007 @ 8:57am

    Re: Continue to vote with your wallet!

    I've been saying this for years! The greatest opportunity the RIAA had was to grab the digital music industry by the reigns and steer it into a profitable commodity.

    Not too different from the oil industry, the powers-that-be are so tight fisted and greedy, they can't see the forest for the trees. Nothing will stop progression. Technology will eventually prevail, and those who ride it will have a smooth sail.

     

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  10.  
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    Anon, Mar 19th, 2007 @ 9:04am

    There should be a law against paying for music. If music artists weren't so overpaid then people like Britney Spears wouldn't go bonkers.

    Paying for music kills.

     

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  11.  
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    Smoky Stover, Mar 19th, 2007 @ 9:09am

    Bainwol and Sherman Like Porn Stars

    Bainwol and Sherman are also great fans of the Whack-A-Mole Business Model (as in going after students) as it has kept them gainfully employed for quite awhile now. As to their position papers . . . they have more positions than porn stars and chanhe them about as often; again for the same reason, it keeps the money coming......

     

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  12.  
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    Smoky Stover, Mar 19th, 2007 @ 9:10am

    Bainwol and Sherman Like Porn Stars

    Bainwol and Sherman are also great fans of the Whack-A-Mole Business Model (as in going after students) as it has kept them gainfully employed for quite awhile now. As to their position papers . . . they have more positions than porn stars and chanhe them about as often; again for the same reason, it keeps the money coming......

     

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  13.  
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    xmaz?, Mar 19th, 2007 @ 9:16am

    boycott 07

    can someone confirm that due to recent RIAA actions there is going to be a Christmas 07 boycott...I heard a couple of guys on campus talking about it...but I can't find the website....

     

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  14.  
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    Nasty Old Geezer, Mar 19th, 2007 @ 9:20am

    Boomers

    I have said this in other contexts, and the RIAA hides the facts: CD sales of NEW music has increased, not decreased. The decline in total sales is from us boomers buying up new copies of old music, once we had all the 70's album rock on CD, we quit buying and the CD bubble burst.

    They are working on a new business model though, closely patterend on SCO -- when you can't innovate, litigate.

     

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  15.  
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    DJMiner, Mar 19th, 2007 @ 9:49am

    Christmas boycott

    There has been a boycott starting before Christmas 06. this boycott is on for all RIAA labels and artist that do not demand that their work is not under the RIAA cloud of doom. To support us do not buy records, attend concerts or other entertainment featuring anyone who releases under the RIAA. Write your favorite artist and tell them what you think and say I am sorry but I am boycotting you until you drop the RIAA.

     

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  16.  
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    Killer Instinct, Mar 19th, 2007 @ 10:02am

    Riaa are morons

    I have 9800 mp3s from my authentic collection of 600+ cds. I found out I needed 600 cds by downloading and listening to mp3s "illegally" on the internet. The sad thing is that the RIAA would still bitch about it.

     

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  17.  
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    John, Mar 19th, 2007 @ 10:09am

    Re:

    If you have ever actually looked at the break down of where the money goes from a CD sale you would know that the artist makes practically nothing. In fact almost all of the money an artist makes comes from playing concerts which now the RIAA is trying to claim that they deserve a share of that as well. The problem here is that we are paying these corporations for our music and not the artist that make the music. This is also the reason that more and more artist aren't signing contracts and are going way of digital distribution.

     

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  18.  
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    Mynor142, Mar 19th, 2007 @ 11:22am

    Stop whining...

    Alot of you people make these arguments like you are entitled to downloading these songs, or like you are experts on the recording industry and the "real truth" of this matter is that illegal downloads have no effect. In what world do you people live in that piracy of this information has no effect? I mean, its somebody's intellectual property, and by purchasing a cd or paying for an online download what you are paying for is a license to use that bit of intellectual property. If someone were sitting on the street corner infront of a record store handing out someone's newest album for free, the record store would encounter much more difficulty trying to sell the album. Its basic economics. In order for the recording industry to survive this has to be nipped in the bud, and how do you do that, by targeting the people who engage in the practice the most, college kids on high-bandwidth servers. John says we are paying the record companies, and not the artists, but he fails to mention that the reason why that is the case is that the record companies fronted the substantial costs of studio time, distribution, publicity, and every other cost, not to mention payig a handsome salary. The reason why more artists are going digital is that these record companies, due to mass downloading of every popular song, can't sell the same number of albums anymore, so the breakeven on an artist goes through the roof, and as a result there is a much higher likelihood that they will not get back their investment and as such they are far less likely to drop the initial investment. Instead they are offering less attractive contracts to shift the risk to the artists until the artist is established. Some anonymous kid earlier said that "paying for music kills" but failed to consider that if nobody payed for music, there would be no professional musicians. ... to be continued....

     

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  19.  
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    Chuck Norris' Enemy (deceased), Mar 19th, 2007 @ 11:34am

    The Blame

    I like how they blamed the industries failure of a legitimate online market that benefits consumers on "illegal file-trafficking". Not the fact that their business models are failures because they cannot adapt to the way music is shared online, which was going on before anyone made money on it and that they aren't giving any benefits to consumers (those who pay for it) by limiting their rights on purchases. The thiefs will always continue to take regardless of the law and work around DRM.

     

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  20.  
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    Joe Smith, Mar 19th, 2007 @ 11:39am

    Uploading is illegal

    I'll grant the RIAA that uploading copyright music is a breach of copyright. That does not provide a legal justification for using estimates of damages flowing from that breach which are so absurd that any witness swearing that the estimate was reasonable would be guilty of perjury.

    Litigation has never been a successful business strategy - just ask Lotus - oh wait, you can't, they're gone.

    RIAA's business problem is not downloading. The problem is that they are churning out music by and for pimps, whores and gangsters. Its a pretty specialized market and not many of us are interested.

    What RIAA should take from the pushback on this issue is that the general public is not amused by their crackdown on file sharing. If they are not careful, one of these days they will hit a tipping point and their survival after that is completely uncertain.

     

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  21.  
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    Mia D, Mar 19th, 2007 @ 11:47am

    RIAA - out of control

    There's something seriously wrong with the system when piracy has a higher penalty under the law than assault on a live human being.
    For piracy, you are looking at max. - imprisonment up to 10 years and/or a fine of $250,000, which is way more than the 3yr max. for (assault) felony in the state of CA.
    Anyone else have a problem with this? I do. Suing students is just another example of RIAA's abuse of power.

     

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  22.  
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    B, Mar 19th, 2007 @ 12:43pm

    Re: Downloading is not illegal

    This is just another ploy to get more money from college students money.

     

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  23.  
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    Anonymous Coward, Mar 19th, 2007 @ 2:01pm

    Re: RIAA - out of control

    Money makes laws, not morals.

     

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  24.  
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    Hugh, Mar 19th, 2007 @ 2:42pm

    Keep your eye on the hand

    After reading the comments so far, it seems some have the jist of the problem. But the RIAA is doing nothing more than "Crying Wolf"! While the RIAA is screaming that downloding and sharing of music is hurting the recording indy, and they keep saying it till someone believes them. The fact of the matter is, the digital age is slowly killing the RIAA and MPAA. No longer does an Artist have to hope that a Major Record label will sign them, no longer does an artist need high end equipment, no longer does need promition and advertising. The Music and Movie indy used to keep eyes out for the artist that the kids were craving (high school proms with new groups that had the girls screaming at the top of their lungs). Now an artist can record their own stuff with a decent computer and equpiment that you can get from radio shack or from any decent auido store. They can then instead of spending hours and hours of studio time to get just the right sound recorded, they can edit the song and get something that the groupies love out. They can promote themselves over the Web (Myspace, youtube ring a bell!!). So no longer do the major labels have the artist that hope and wish that one day a label manager will come talk to them. They do it themselves or find someone willing to help them(Toby Keith starting his own recording label and movie label anyone?) And whats truly killing the record label is the artist are no longer dependent upon them and they are truly free to do what they want with their music, promote it the way they want and even make their own CDs and Movies and sell them for pure profit over the web.

     

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  25.  
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    Jesse McNelis, Mar 19th, 2007 @ 4:15pm

    Re: Downloading is not illegal

    The problem is that the bittorrent protocal is the major distributor and the bittorrent protocal demends that you upload while you are downloading.

    thus, your particiapantion in a torrent of unlicenced content is illegal.

     

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  26.  
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    Snoring, Mar 19th, 2007 @ 6:08pm

    Re: Stop whining...

    "illegal downloads"... There aren't any. "piracy of this information" ... Downloading isn't the issue. Supply is. I can download lots of stuff. Some is remakes from unknowns who are not the artist and there is no guarantee what you download is what you are after. Often I will download a song that I have in my collection to listen from another location where I don't have access to my copy. Is this wrong? Am I stealing? If I have a proof of purchase how am I doing wrong?

     

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  27.  
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    Newob, Mar 19th, 2007 @ 6:11pm

    The problem ...


    The problem here is that none of you spoiled brats take your entertainment seriously. So, we will make you take your entertainment seriously by suing you until you pay to be entertained.

     

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  28.  
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    Johnny Brawk, Mar 19th, 2007 @ 7:24pm

    Re: Downloading is not illegal

    Has the RIAA ever been asked -
    if stealing a CD from a store is the same as downloading a song, how many of the shoplifting cases go to federal court? How many shoplifting cases get sued for $750 per item when the "stolen" item is sold for $0.75-$1.10?
    I dont see their logic in comparing petty shoplifting to downloading (not to mention the aformentioned Supreme Court saying D/L is not stealing

     

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  29.  
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    Joe Schmoe, Mar 20th, 2007 @ 8:04am

    "Damn shame. The RIAA was in the prime position to take the lead in digital distribution."

    You [probably] don't know just how far behind they have put themselves (and us). They fought and killed make-your-own CD record store kiosks more than 20 years ago.

    "There's something seriously wrong with the system when piracy has a higher penalty under the law than assault on a live human being."

    Or drug trafficing. etc. Yes. Thanks for making this point.

    "If music artists weren't so overpaid then people like Britney Spears wouldn't go bonkers."

    Brit does stupid all by herself.

    "blahblahblahblahblahblah"

    Mynor142, Hugh - Paragraphs...

     

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  30.  
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    incredulous, Mar 20th, 2007 @ 1:46pm

    your bald-faced assertions

    I'm just incredulous at your bald-faced assertions that (1) "everyone from the Supreme Court on down have pointed out that copyright infringement isn't stealing" and (2) "downloading still has never been found illegal itself."

    Have you ever heard of, much less read, the most recent, pivotal U.S. Supreme Court copyright decision, MGM v. Grokster?

    On page 13 of his concurrence in MGM v. Grokster, Justice Breyer, who champions your cause, states "deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft."

    On page 5 of the majority decision, Justice Souter writes, "the vast majority of users' downloads are acts of infringement."

    In the spirit of joining the reality-based community, would you like to amend the conviction with which you made your bald-faced legal assertions?

     

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  31.  
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    Mike (profile), Mar 20th, 2007 @ 2:39pm

    Re: your bald-faced assertions

    I'm just incredulous at your bald-faced assertions that (1) "everyone from the Supreme Court on down have pointed out that copyright infringement isn't stealing" and (2) "downloading still has never been found illegal itself."

    Those statements are backed up.

    Have you ever heard of, much less read, the most recent, pivotal U.S. Supreme Court copyright decision, MGM v. Grokster?

    Why yes, and we've written extensively about it.


    On page 13 of his concurrence in MGM v. Grokster, Justice Breyer, who champions your cause, states "deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft."


    No less unlawful is different than the same thing as. As was made clear in the original link from the Supreme Court statement: copyright infringement is illegal -- but it's quite different than theft. The fact that it's "no less unlawful" doesn't change the fact that it's different than theft.

    It's not that hard to understand why the two things are different. In theft, something is taken and the original is missing. In infringement, the original remains and nothing is "lost." That they are both illegal is true, but that does not mean that calling infringement theft is accurate. It would be like me saying that every time someone was speeding, they were committing murder. Speeding is no less illegal than murder. Thus, by your reasoning, they must be the same thing.

    So, my original (and the SC's) statements still stand.

    On page 5 of the majority decision, Justice Souter writes, "the vast majority of users' downloads are acts of infringement."

    Can you point me to a single lawsuit that has found anyone guilty of illegal downloads? I'm waiting to see one. Every lawsuit has been about uploads, not downloads. There has been no actual legal test as to whether downloads are illegal. The comments in MGM v. Grokster are aside from the actual case at hand. No one was arguing in the case as to whether or not downloading was infringement, so Souter's comments aren't particularly relevant.

    Point me to case where downloading itself was the issue being discussed, and then we can talk.


    In the spirit of joining the reality-based community, would you like to amend the conviction with which you made your bald-faced legal assertions?


    My comments were quite accurate and very much a part of the reality-based community.

    Now, in the spirit of joining an open discussion about these important issues, would you like to stop hiding behind your anonymous facade and admit who employs you? I won't give it away, but your IP address is quite telling.

     

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  32.  
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    still incredulous, Mar 21st, 2007 @ 9:29am

    Re: Re: your bald-faced assertions

    Alright, how's this:

    Page 10 of the 9th Circuit's decision in Napster states:

    "Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."

    This finding was critical to the decision of the court because, in order to find Napster a contributory infringer, the court had to find the underlying activities (uploading and downloading) were infringement.

    Now, would you like to retract your claim that no court has found downloading to be copyright infringement?

    As to your defense of your statement that "copyright infringement isn't stealing," it is an exercise in silly semantics.

    The clear purpose of your statement was to claim that the courts have never found copyright infringement to be as bad an offense as "stealing." Breyer stated that "unlawful copying is no less an unlawful taking of property than garden variety theft." Clearly, even Breyer (your Champion, again) believes copyright infringement to be at least as bad as theft. Further, a common sense way to describe the unlawful taking of property is to call it stealing.

    So, either you are only making a semantic argument that the legal definition of "stealing" is different than "unlawful taking of property", or you are trying to misleadingly argue that the courts have never found copyright infringement to be as bad as stealing. If you are only making the semantic argument, I'd love to see you affirmatively state that copyright infringement is as bad as stealing.

     

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  33.  
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    still incredulous, Mar 21st, 2007 @ 2:01pm

    Re: Re: your bald-faced assertions

    Alright, how's this:

    Page 10 of the 9th Circuit's decision in Napster states:

    "Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."

    This finding was critical to the decision of the court because, in order to find Napster a contributory infringer, the court had to find the underlying activities (uploading and downloading) were infringement.

    Now, would you like to retract your claim that no court has found downloading to be copyright infringement?

    As to your defense of your statement that "copyright infringement isn't stealing," it is an exercise in silly semantics.

    The clear purpose of your statement was to claim that the courts have never found copyright infringement to be as bad an offense as "stealing." Breyer stated that "unlawful copying is no less an unlawful taking of property than garden variety theft." Clearly, even Breyer (your Champion, again) believes copyright infringement to be at least as bad as theft. Further, a common sense way to describe the unlawful taking of property is to call it stealing.

    So, either you are only making a semantic argument that the legal definition of "stealing" is different than "unlawful taking of property", or you are trying to misleadingly argue that the courts have never found copyright infringement to be as bad as stealing. If you are only making the semantic argument, I'd love to see you affirmatively state that copyright infringement is as bad as stealing.

     

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  34.  
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    Mike (profile), Mar 21st, 2007 @ 6:53pm

    Re: Re: Re: your bald-faced assertions

    I'll note a second time that you prefer not to say who you are, and who you represent. It might help if you stated that.

    This finding was critical to the decision of the court because, in order to find Napster a contributory infringer, the court had to find the underlying activities (uploading and downloading) were infringement. Now, would you like to retract your claim that no court has found downloading to be copyright infringement?

    Again, it wasn't downloading that was on trial in the Napster case, but Napster's role itself. Part of the issue with Napster was that it did allow both downloading and uploading.

    We're still waiting for a court case that focuses solely on downloading. Why don't you and your buddies file one to test it out? If you're so sure about it being illegal, why haven't you and your friends filed such cases?

    As to your defense of your statement that "copyright infringement isn't stealing," it is an exercise in silly semantics.

    It's not silly semantics at all. If you honestly believe that copyright infringement and stealing are equal in terms of damage then I don't know what to tell you, but by ANY rational basis, they are extremely different in both method and impact. Calling one the other isn't just wrong, it's blatantly misleading and dangerous.

    Clearly, even Breyer (your Champion, again) believes copyright infringement to be at least as bad as theft.

    Again "no less unlawful" is not the same thing as "the same thing as".

    Further, a common sense way to describe the unlawful taking of property is to call it stealing.

    Except that infringement is not the unlawful *taking* of property -- but the unlawful copying of property. It's quite different.

    If you open up a pizza store, and I see that it's doing good business and open up a pizza store down the street, I've copied you, but have I stolen from you?

    Part of the reason you and your friends are having so much trouble in this debate is the refusal to understand this very important difference.

     

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  35.  
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    unhappy with your evasions, Mar 21st, 2007 @ 8:34pm

    First, as to anonymity, why do you want to know my name, but not that of other commentators, such as "Joe Schmoe", "Boring", and "B"? Could it be that you'd rather try to discredit me by association than deal with the facts I present?

    As to your response, you might want to take a refresher in copyright law. To find both Grokster and Napster liable for contributory copyright infringement, the Supreme Court and 9th Circuit had to find that Grokster/Napster users were engaging in direct copyright infringement. As demonstrated by the portions of the decisons I cited in my previous two posts, both courts explicitly found that P2P downloading constituted copyright infringement, and thus that Grokster and Napster could be liable for contributory infringement. You just can't get around the fact that the highest courts in the land, in parts of their decisions essential to their final holdings, have specifically stated that p2p dowloading constitutes copyright infringement. This is binding law, not just a stray comment or dicta.

    On the second point, you state that "infringement is not the unlawful 'taking' of property." But Breyer stated explicitly that infringement IS an unlawful taking of property. As I noted, his quote reads "deliberate unlawful copying is no less an unlawful taking of property than garden variety theft." The U.S. Supreme Court, in both Florida Prepaid cases, also explicitly stated that infringement is a taking of property under the 5th Amendment. If it wasn't clear that you're hell-bent on ignoring the clear language of decisions, I would dig up those quotes, too.

    Further, Breyer did not state that infringement is "no less unlawful", as you misquote him, but that unlawful copying is an unlawful taking of property. The fact that he state unlawful copying "is no less" an unlawful taking of property than garden-variety theft supports my argument, not yours. "No less" means at least as bad as, and maybe worse than theft. So, if you want to insist on your argument that "no less" does not mean "the same thing as", fine, I'll agree with you and note that your interpretation means that the Supreme Court has found copyright infringement is at least as bad an unlawful taking of property as theft, and possibly worse.

    As to your pizza parlor analogy, let me take it a step further. Say your copycat pizzaria down the street makes your pizzas based on my family's secret recipe, which you surreptitiously obtained by breaking into my computer network. How would the average person describe your taking and use of my family's recipe? Can you at least agree that they would say that you "stole" it from me, and you are using a "stolen" recipe? And why is it that the average person can conceive of your taking the recipe as stealing, even though I am still free to use the recipe myself?

    I think it is you and your compatriots who are having trouble in this debate - at least when the debate is in public rather than among yourselves. Your use of legally false, factually incorrect, and common sense-impaired arguments to try to make copyright theft seem a less serious problem robs you of all credibility in the courts and among policymakers.

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    Mike (profile), Mar 23rd, 2007 @ 12:49am

    Re:

    First, as to anonymity, why do you want to know my name, but not that of other commentators, such as "Joe Schmoe", "Boring", and "B"? Could it be that you'd rather try to discredit me by association than deal with the facts I present?

    Your identity and associations matter because it clearly influences what you are saying. If I was concerned about their biases, I would ask them. I'll note that you still refuse to say anything more about who you are. What's wrong with saying who employs you?

    To find both Grokster and Napster liable for contributory copyright infringement, the Supreme Court and 9th Circuit had to find that Grokster/Napster users were engaging in direct copyright infringement. As demonstrated by the portions of the decisons I cited in my previous two posts, both courts explicitly found that P2P downloading constituted copyright infringement, and thus that Grokster and Napster could be liable for contributory infringement.

    Again, the focus in both cases was much more on the sharing aspects (uploading) rather than downloading.

    I again would ask why, if downloading is so illegal, why no one has been sued for downloading? I think it has something to do with the fact that it would be a much more difficult case, and the last thing you and your friends want is a case on the books where downloading is found not to be illegal. If there were a trial on such a matter, any competent lawyer would rip apart any comparison to "theft" and show why it's not just different, but almost antithetical to the concept of "stealing."

    The more important point, however, is that no matter what the courts have said, if you cannot understand the difference between infringement and stealing, then you will never be able to understand what's happening in the marketplace your industry is dealing with. It's why you're losing this battle when you could be winning it.

    I think it is you and your compatriots who are having trouble in this debate - at least when the debate is in public rather than among yourselves.

    Yes, that's why I put my name on everything I write and am willing to stand up and debate it in public. It's why I appear on any panel I'm invited to discussing this topic, especially when it includes folks from your industry. This isn't an echo chamber. I debate this every day with folks who disagree with me and I want them to come here and I want them to read this. I'm thrilled to debate this with people like yourself. What about you? You hide behind anonymity and refuse to say who you are or who pays your paycheck. You focus on a tiny point of law, rather than the big picture or the trends that impact the industry that employs you.

    But don't make me out to be sheltered from real discussion on this. I debate this every day. So, come on. Come out in public. Let's debate this. Any place you'd like. I have no problem debating the salient points here and I would enjoy a chance to discuss it with you and those who pay your salary. Because the problem is that you've lost this battle in the minds of everyone outside of the industry. You've had every chance in the world to embrace an opportunity, and you've squandered it at every chance.

    You've labeled your best customers as criminals.

    You've told them it's a crime to share and promote your content.

    You've stifled new and innovative technologies.

    You've prevented offerings that increase the value of your content from having any chance to do so.

    You've shrunk the value of your own market and then blamed it on your customers.

    And you say that I'm the one who's having trouble in this debate. I don't think so. You've already lost and the scary thing is that even though you've already lost, you want to go back and argue about the rules of the game.

    Your use of legally false, factually incorrect, and common sense-impaired arguments to try to make copyright theft seem a less serious problem robs you of all credibility in the courts and among policymakers.

    I am afraid that you have lost touch with common sense. Read the original story by Sherman and Bainwol again. Read the responses to that article. No one, not a single person, buys the ridiculous arguments they put forth. Hell, even you are unable to defend them other than to nitpick about some minor point in legal cases. You don't respond to any of the bigger issues -- because you can't. In any other industry in the world, you make money by making a product better for your customers by providing them what they want.

    Only in your skewed world do you think you make things better by limiting your customers and treating them as criminals.

    Instead of fighting over semantics, maybe it's time to recognize that no one believes the fake world that you've built. People don't believe that listening and sharing the music they like is "theft." They know it's not theft because no one has lost anything. They don't believe that circumventing copy protection should be against the law if they're just trying to listen to the song they legally purchased on another device. They don't think that your bosses should be allowed to open up security holes in their computers because they can't come to terms with a more modern business model.

    They understand the nature of freedom and liberty, and when Thomas Jefferson says:


    If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

    That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.


    they understand that it refers equally to any such content. There is a world of opportunity (and profits and happy customers) in embracing giving people what they want and what they know makes sense.

    And instead, you're arguing semantics.

    I'm afraid that it's you who has lost credibility in the eyes of your very customers. You've already lost this battle. Arguing the fine print doesn't change any of that.

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Router, Mar 23rd, 2007 @ 8:06am

    Go Around

    The market is remarkably flexible and like the internet will "route around" blockages such as the RIAA. As RIAA -governed 'content' ages and becomes a less and less relevant component of the business the RIAA will become less relevant to the point where one day we'll smile when we think back on the days the industry thought shooting itself in the foot was the path to market control.

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    another round, Mar 23rd, 2007 @ 3:10pm

    Re: Re:

    I thought you folks were staunch defenders of anonymous Internet speech. Haven't you railed against attempts by copyright holders to find out the identity of P2P file traffickers? Do you only defend the anonymity of law breakers, but not the anonymity of those exercising their speech rights?

    The funny part is, I have absolutely no affiliation to the music industry.

    I enjoyed your philosophical exposition. You are certainly entitled to your own opinion. But, as has been said before, you are not entitled to make up your own facts in support of that opinion.

    You used false conclusions about the law on P2P downloading and the nature of copyright infringement to support your opinion. I focused on your false legal conclusions because, if such falsities aren't challenged, they end up being passed on as fact. Your most recent response constitutes a partial retraction of both claims ("the focus in both cases was much more on the sharing aspects (uploading) rather than downloading"(still not right, but closer); "No matter what the courts have said, if you cannot understand the difference between infringement and stealing") for which you deserve a measure of credit because it was clearly hard for you.

    As to your philosophy itself, I think you have some things right, and a lot wrong.

    Creators operate in the free market and, at least if they wish to commercialize their works, understand they have to meet consumer demand in order to succeed. If they don't, someone else will step in and meet that demand.

    Where you have it wrong is in assuming that creators are acting irrationally. Creators are right to be skeptical that the "business model" you propose (which, as best I can tell is, "sell one copy, allow unlimited free copying thereafter") will sustain the current, prolific level of varied creativity that consumers so clearly cherish. Consumers should also be very skeptical about foresaking the current system that creates so much content they clearly love (billions and billions of legal copies and illegal downloads served) on the fleeting promise that your way will be better.

    The way you could prove your point, and make billions if you are right, would be to actually implement the business plans that you castigate others for not trying. Get off the commenting sidelines, and get into the game!! Prove your business model in the market.

     

    reply to this | link to this | view in thread ]

  39.  
    icon
    Mike (profile), Mar 23rd, 2007 @ 6:17pm

    Re: Re: Re:

    I thought you folks were staunch defenders of anonymous Internet speech.

    Yup. You'll note that I haven't exposed who you are, despite knowing. I'm a defender of anonymity, but considering your particular background, I'd think it would make your case more relevant if you decided to say who you are.

    The funny part is, I have absolutely no affiliation to the music industry.

    No, but you have to admit the industry you are in is closely related.

    You used false conclusions about the law on P2P downloading and the nature of copyright infringement to support your opinion.

    I'm still waiting for you to point me to the case where someone has been sued for "illegal downloading." Sherman and Bainwol's point in using that language was to imply that you could and will get sued for downloading. Considering they've never filed such a suit, that's still a bogus claim. So, I'm sorry, but I haven't backtracked on my position at all.

    Creators operate in the free market

    If you consider the free market to include government mandated monopolies... which last I checked, didn't seem to be included in any definition I've seen.

    Where you have it wrong is in assuming that creators are acting irrationally. Creators are right to be skeptical that the "business model" you propose (which, as best I can tell is, "sell one copy, allow unlimited free copying thereafter") will sustain the current, prolific level of varied creativity that consumers so clearly cherish.

    That's not the business model I have proposed. Not even close. But, if that's the way you're reading it, then I have plenty to do in explaining myself more clearly. I'm working on it. Did you see the latest post on scarcity?

    Consumers should also be very skeptical about foresaking the current system that creates so much content they clearly love (billions and billions of legal copies and illegal downloads served) on the fleeting promise that your way will be better.

    You are confusing correlation with causation. The copyright framework did not "create" the content they love. And, it's not a "fleeting promise." There's a ton of historical evidence that intellectual property protections shrink, not grow, a market.

    The way you could prove your point, and make billions if you are right, would be to actually implement the business plans that you castigate others for not trying. Get off the commenting sidelines, and get into the game!! Prove your business model in the market.

    I already am doing so in a different industry -- and doing quite alright, thanks. The reason I'm discussing this here is to encourage others to do it in other industries -- and some will be doing so very soon. The thing that I'm trying to do is help warn the folks in the incumbent companies that these business models are coming -- and when they do, you'll be caught offguard.

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    Memyself, Apr 16th, 2010 @ 8:12pm

    Re: Re: your bald-faced assertions

    "The fact that it's "no less unlawful" doesn't change the fact that it's different than theft."

    Breyer didn't say "no less unlawful" as you mistakenly quote. He said: "No less AN unlawful taking of property than garden variety theft". Theft is defined as: "an unlawful taking of property". Therefore, he was directly equating copying to theft, by stating that it is defined the same.

     

    reply to this | link to this | view in thread ]


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