More On Deserving To Get Paid
from the vs-infringement dept
There’s been an interesting discussion concerning my post taking the RIAA to task for various (incorrect) “FACTS” it listed about Joel Tenenbaum and his case. As expected, of course, not everyone agrees with me, but there’s a point of disagreement that I wanted to focus on, because I think people are merging two ideas in their minds, and it’s clouding their judgment:
- There’s the issue of whether or not Joel Tenenbaum had the right to download or share the songs that he did. On that we absolutely agree that he broke the law. No questions at all.
- There’s a separate issue of whether or not the RIAA “deserves to get paid” for its music.
The folks who are arguing against my point combine these two as a single point, and say that if Joel downloaded/shared the music then the labels “deserve to get paid.” My argument is that those are two separate discussions. We agree that Joel broke the law. But that doesn’t mean that the record labels “deserve payment.” There’s no indication that Tenenbaum would have bought CDs in absence of the songs being available online. The labels have a job to do, which is putting in place a business model that gets them paid. And they’re failing in doing so, which is why their financials are looking so pitiful these days.
I recognize that it’s difficult to separate out these two issues, but it’s important. If you understand that these are two separate issues, then you recognize that this is a business model issue, not a legal one. If you recognize that these are two separate issues, then you recognize that it’s not about “deserving to get paid” and there’s no “we had no choice but to sue.” Instead, you recognize that the issue is that the labels have failed to put in place a business model, and their response has been to fight the wrong thing. It’s to legally go after the people who wish the labels had put in place a better business model, rather than actually putting in place a better business model.
Filed Under: cara duckworth, deserving to get paid, entitlement, joel tenenbaum
Companies: riaa
Comments on “More On Deserving To Get Paid”
It will never stop
Honestly, I don’t think it has really anything to do with getting paid millions of dollars. I think in Joel’s case, it was more about making him an example. We’ve seen instances of the RIAA going after the ‘little guys’ with very flimsy evidence, and in some cases that evidence was completely wrong. If the recording industry is constantly losing, the first fight they do win will sound their trumpets and lead a parade through the street with the offending defendent hog-tied and gagged for them to show off.
I believe the younger generation really has no concept of a million dollars as they will probably never earn that the way this country is going. Joel did break the law, but was monetary fine actually what the recording industry lost when the defendent shared 30 songs? How could they prove that exact amount?
Quite honestly, they will never see that money (not in full, anyway). Not to mention, this is only an incentive to do it again. If I owed millions or even hundreds of thousands of dollars, why would I stay on the legal track after that? I’m already screwed financially, and now I’m angry enough to put all my efforts into screwing the recording industry even more? That’s not winning a war, that’s not even winning a battle.
I’ve been to swap meets and garage sales where people have stacks of CDs and DVDs (obvious fakes), and it’s like a feeding frenzy (no, I do not buy frauds… I like to support the artists when I can. I actually reported one incident at a swap meet long ago). If the recording industry sues these people, do they really think it will make them stop?? Sure, what they are doing is illegal by a HUGE stretch, but how is suing them going to make them stop? Chances are the repayments will be made with money made from future illegal sales.
Hmm.
I should take a clue from RIAA and demand I get PAID TO LISTEN TO THE MUSIC OF ARTISTS THEY SUPPOSEDLY REPRESENT.
After all, my time isn’t cheap either.
So, where’s my damn check?
Re: Hmm.
“After all, my time isn’t cheap either.”
Yes it is. Who are you kidding?
“A sense of entitlement is not a business model.”
More often, it’s a freeloader’s core belief system.
I'd like to make an analogy
Realizing that analogies can be very dangerous, here is my attempt:
Pretend that Joel broke into someone’s house and made digital copies of all their music CDs. While in their house, he did no damage and removed nothing physically.
Then, Joel distributed copies of the CDs to random people on the street (yes, for the sake of the example he distributed ACTUAL CDs).
—-
1) Joel committed B&E which IS a crime.
2) Does the music industry “deserve to get paid” for the music copies that Joel made? I don’t really think so, but I’d like to hear arguments for YES.
Re: I'd like to make an analogy
But Joel didn’t break into another person’s house. The owner let him in, just as he let other people into his own house.
If he had to break into other people’s computers, it wouldn’t be “file sharing”.
Re: Re: I'd like to make an analogy
“But Joel didn’t break into another person’s house. The owner let him in, just as he let other people into his own house.”
Exactly, Ben! Therefore Joel didn’t even really commit a crime…
Re: Re: Re: I'd like to make an analogy
ROTFL.
Why not sue the RIAA for...
Why not sue the RIAA to guarantee that 100% of the funds they recieve go to artists. Not to the RIAA, and not to the labels. That will take the financial incentive out of suing for the RIAA, and they would have to show their true intentions– they don’t give a whit about artists, and will keep suing as long as it means they recieve money hand over fist for content they had no hand in creating, promoting, distributing, or selling.
Re: Why not sue the RIAA for...
Because you can’t just randomly “sue someone” and demand that they do something?
Re: Re: Why not sue the RIAA for...
Sure you can. The question is, will you be heard? Anyone can bring suite. The hard part is not getting tossed out on your ear. By in intelligent and informed Judge.
Close but not quite.
The Labels do in fact deserve to get paid Mike.
The Label’s argument that *everyone* who Tenenbaum would have bought the album is ridiculous as you pointed out.
But the reverse, that *no one* would have bought it, is likewise not a reasonable statement either.
The actual settlement amount being related to the ‘cost’ of the sharing is of course crazy since how much was ‘lost’ quite finite and small. Since he broke the law, punitive financial sanctions are quite reasonable. Tying the amount to some outrageously false value per song is the real tragedy here.
Maybe that’s the point you were trying to separate out?
Re: Close but not quite.
“But the reverse, that *no one* would have bought it, is likewise not a reasonable statement either.”
ok, but that’s an absolute, and the salient question is:
“Would a significant portion (not even most, I just mean a non-trivial amount) of people have otherwise purchased music they downloaded?”
No consensus on this question I imagine. I don’t claim to know the answer either. That, however, is where the real point is.
Further, all moral arguments aside, you deserve to get paid when you do something people are willing to pay for. Whatever proselytizing, or hand wringing before legislative bodies a lobby group does, it can’t change that.
Re: Re: Close but not quite.
All arguments of “deserve” are moral arguments. Your statements fails to make sense.
Re: Re: Re: Close but not quite.
“deserve” in this case isn’t just an moral argument, it’s a contractual / legal issue.
In this case, contractually buying the individual rights to enjoy a song costs $x. If you share that song for free with 10,000 people online, you have causes $x times 10,000 potential losses. Under the copyright law, the courts can award an amount to compensate those losses, which also has a dissuading effect on others.
Trying to say it is only a moral issue is like trying to frame shoplifting as a solely moral issue. Theft is a moral question, but the losses aren’t moral, they are real. Stealing a $10 t-shirt or making a company lose $10 of sales is different ways to inflict loss, but basically the same. It isn’t moral, it is legal, the laws we as a society are governed by.
Mike, sum it up thusly:
A sense of entitlement is not a business model.
Re: Mike, sum it up thusly:
You know I like that line … “A sense of entitlement is not a business model.” …That makes me smile in a big way ….
I am very Anti-RIAA not because they want the labels and artists to get paid for the songs, but because of their tactics which are legally abusive …
What the labels should do is set up an Amie street like system and dump all their music on it. Start the price at 1 cent a song and let the price run up and down as the downloads increase and decrease. This would give the labels an Idea of what the true value of what they are selling is.
Re: Re: Mike, sum it up thusly:
“You know I like that line … “A sense of entitlement is not a business model.” …That makes me smile in a big way ….”
There is only on problem – this isn’t a sense of entitlement, it’s black letter law. If you don’t like the laws, get them changed, The law is the law as it is, that is that.
It’s not a sense of entitlement, it’s a sense that Joel screwed them big time.
Yes, they do deserve to get paid. The downloader’s actions deprived them of potential profits – regardless of whether he ever would have actually bought the music or not. Because they were “free” he downloaded them. Whether he would have purchased them if free were not an option is impossible to determine.
Fair and equitable – that’s another story. A reasonable settlement would have been to charge him the cost of the full CD for each artist (that’s being generous since they could be bought individually for $1.00). I wouldn’t award legal fees because the nature of how the RIAA conducts their investigation and John Doe suits to find out the owner of an IP address. But that’s me.
What I don’t understand is why the cases that go to trial fail to address the fundamental points that get to the heart of th RIAA litigation. I’d like to see a case go before the court with Ray Beckerman as lead defence council – now THAT would be damn interesting.
Re: Re:
Yes, they do deserve to get paid. The downloader’s actions deprived them of potential profits” …
By that argument, and to remind people of Mike’s usual eatery analogies… If I were to open a pizza shop next to an existing pizza shop, does that mean the pre-existing pizza shop “deserves to get paid” because I “potentially” deprived them of profits?
Really, how many people didn’t go into the original pizza shop because they chose to come into mine? Those people were “potential” customers of the other pizza shop…
No, the other pizza shop doesn’t deserve a dime from the “potential loss of revenue”… If the other pizza shop has better food and / or better prices (or promotions, etc) then they’ll make the profit they deserve to make….
Re: Re: Re:
@jpochedl:
Buy quoting a finite good example you’re trying to explain an infinite good example?
Lets say you could clone the original shop’s specific pizza offerings infinitely after buying one of each and then gave away to anyone who wanted it. Yes you’ve likely deprived the original shop of potential customers since they would have eaten for free.
The business model *is* outdated, I don’t argue that. But that doesn’t change what is and isn’t currently *legal*. These particular songs are under specific licensing requirements. It *is* illegal to give away someone else’s copyrighted work.
My point was the RIAA’s concept of saying each song is work $100,000 is just ridiculous. They deserve something for Mr. Tenenbaum’s actions and that should be punitive, but not tied to the number of songs he illegally shared.
Re: Re: Re: Re:
“Lets say you could clone the original shop’s specific pizza offerings infinitely after buying one of each and then gave away to anyone who wanted it. Yes you’ve likely deprived the original shop of potential customers since they would have eaten for free.”
Then the original pizza shop could give it away for free too.
If the second pizza shop could make pizza for free, the first one can too. The original will deprive itself if it does not give away for free what other can and will give away.
Re: Re: Re:2 Re:
yes the could, but it’s *their* pizza. They are allowed to run their business anyway they wish.
The difference here is that another store giving away totally separate and independent pizza is also perfectly ok. In this example though, they aren’t making their own pizza they are simply replicating the original pizza with no input of their own.
That’s the big difference. It isn’t as if Tenenbaum was giving away his *own* music. He was giving away music to whicht someone else holds the legal rights.
Re: Re: Re:
@jpochedl – Don’t be silly, this analogy doesn’t work at all because it is an example of simple competition, whereas Tenenbaum did not produce anything or compete with the RIAA, he distributed the RIAAs product for free without their consent.
IF Tenenbaum went next door to the other pizza shop and distributed their pizzas for free, yes, the original pizza shop deserves to get paid for their product. Absolutely.
Re: Re: Re: Re:
Yes he did, he shared his own copies, which were in turn copies procured from others. They were not the RIAA’s “copies” — once again, the marginal cost of producing a digital copy is effectively zero. If Tenenbaum went next door and distributed somebody else’s pizzas, then he is depriving them of their pizza. That is not at all what is happening here. I think this whole analogy is pointless, but your rebuttal is certainly dumber than the original.
Re: Re: Re:2 Re:
The COST of the copy (what it cost to make) isn’t material – it’s the retail cost if someone went out to buy it.
If they buy it, retail is $10 or whatever. The copy? Free. Joel cost the record companies $10 of (potential) income.
It’s pretty simple, and it is fairly unintelligent to think that widespread file sharing doesn’t have some economic cost, at least for the record labels.
Heck Mike, come on – you have even posted articles this week that say that sales of CDs and recorded music is down from what it was. Isn’t that enough of an indication? After all, people still have full Ipods, amazing, isn’t it?
Re: Re: Re:3 Re:
8 Track sales are WAY down, and people still have full iPods.
I don’t even own a CD player, why the hell would I buy a CD?
Yeah, yeah, I’m getting off your damn lawn.
Re: Re: Re:2 Re:
Let’s be clear on something – Tenenbaum didn’t have any of his ‘own’ copies. He had an illegal copy and he admitted to that.
As has already been said, the cost to produce the copies is irrelevant. The price attached to the work by the legal owner is what is relevant.
In other forms of stealing, the severity of the crime is not determined by the cost to produce the goods, it is determined by the price of those goods.
Re: Re: Re:
“If I were to open a pizza shop next to an existing pizza shop, does that mean the pre-existing pizza shop “deserves to get paid” because I “potentially” deprived them of profits?”
If you were selling pizza that they made, copyrighted, or otherwise owned the rights to, then YES. If you were selling pizza you made, then no.
Tenenbaum is more than free to sell any music he makes in any way he wants to sell it.
Re: Re: Re:
“By that argument, and to remind people of Mike’s usual eatery analogies… If I were to open a pizza shop next to an existing pizza shop, does that mean the pre-existing pizza shop “deserves to get paid” because I “potentially” deprived them of profits?”
This is potentially one of the stupidest of all arguments on Techdirt, and there are some doozies on here. THis one is off the scale stupid.
First up, and this is important now, WE AREN”T SELLING PIZZA.
Good, got that? Second, and this is equally important, the customer is choosing between two options. It is no different from “Do I buy this horrible Hannah Montana CD, or do I buy this quirky Amanda Faceplam Palmer CD”?
When a customer chooses between two options in restaurants, nobody is deprived of anything. They both had equal chances, nothing more and nothing less.
Let me give you an example that might make more sense to you. You go to a movie theater to see a new movie. Just before you buy your tickets, a guy comes up and offers you a free copy of the DVD, a bag of popcorn, and a lift back to your car so you can go home. At that moment, the movie theater has been deprived of income.
Now, let’s say on another night, you go to the theater, but on the way you pass another theater that has the same movie on, and you decide to go there. Guess what? Nobody was deprived of anything. Amazing, isn’t it?
It is such a simple concept that it is almost hard to explain, except to say you have to either be a pea brain or someone trying very, very, very hard to muddy the waters to even start down that road. It’s the type of argument as a 10 year old that would get you a spanking from your father.
Seriously, Mike has his moments, this one is classic “fail”.
Re: Re: Re: Re:
“Let me give you an example that might make more sense to you. You go to a movie theater to see a new movie. Just before you buy your tickets, a guy comes up and offers you a free copy of the DVD, a bag of popcorn, and a lift back to your car so you can go home. At that moment, the movie theater has been deprived of income.”
No. The theater was deprived of POTENTIAL INCOME, no real losses there. This can happen even under fair use: say the guy is your brother and the DVD is a legitimate copy.
Classic fail?
Re: Re: Re:2 Re:
“No. The theater was deprived of POTENTIAL INCOME, no real losses there. This can happen even under fair use: say the guy is your brother and the DVD is a legitimate copy.”
Don’t hurt yourself going for the massive, massive reach. You could pull something (like credibility).
Re: Re: Re:3 Re:
No U.
Re: Re: Re:2 Re:
The movie isn’t out on DVD, and if your borther has a copy, he doesn’t have it legally.
The theater is deprived of actual income.
Re: Re: Re:3 Re:
Oh? What if the brother was the film director of an independent film that happened to be on the theater too? What if the theater being spoken about was in a remote place where they don’t show the newest films?
Besides, how many people do you actually know to receive a free DVD outside a theater from a total stranger? What are the chances of that happening in real life?
Your straw man can’t win against my straw man, which just demolished the other AC’s straw man. ROTFL!!!
Re: Re: Re:2 Re:
“Let me give you an example that might make more sense to you. You go to a movie theater to see a new movie. Just before you buy your tickets, a guy comes up and offers you a free copy of the DVD, a bag of popcorn, and a lift back to your car so you can go home. At that moment, the movie theater has been deprived of income.”
So, if while you’re standing in line for the movie, then say… “Ah forget it, I’m waiting for th DVD.” Then, when the DVD comes out, you go borrow it from the local public library, then has the theatre been deprived of income?
I’m a potential customer of every movie in the theatre, but I get a lot of movies from the library… Who’s being deprived of income? Should we sue the public library for depriving all publishers, the RIAA and MPAA of potential income?
Re: Re: Re:3 Re:
Just wait, it’s going to happen.
Thanks a lot. Sheesh.
Re: Re:
If “Whether he would have purchased them if free were not an option is impossible to determine” is true as you say, then how can you state with certainty that “The downloader’s actions deprived them of potential profits”?
That does not make any sense whatsoever.
Re: Ray Beckerman / salient points
The main reason you don’t see the cases cover the fundamental points is because the MAFIAA* don’t WANT you to. If you’ve followed Ray’s blog and read the briefs he’s been able to post, you’ll see a general trend where the plaintiff’s expend large amounts of energy (and digital paper) to confuse the issue.
In the cases that I’ve seen where their attempts at obfuscation has met with limited succes, I’ve seen dismissals and what I like to call “cut-and-run” tactics. It seems like they’ve done everything they can to prevent an actual “loss” that can become a reference point for future cases.
*MAFIAA: Not my term, but certainly reflects my personal opinions these days.
If Then Else
Tell me what you think of this statement, Mike.
If the Record Label owns the copyright to a song
and they choose to only make copies of the song available in exchange for monetary payment
and someone obtains copies without making the monetary payment(and outside of Fair Use)
then the Record Label is entitled to the monetary payment from that person.
Re: If Then Else
In your statement, the Record Label still is not entitled to anything from that person, unless they are the ones who provided the copies to that individual.
Re: Re: If Then Else
@Fiercedeity
I base my statement from this belief:
If someone does something wrong to me, then I deserve to be compensated by that person for those wrongs.
It seems by your logic, someone could walk up to my car(its the internet. we need a car analogy) with a baseball bat, and take out my headlights, and they should only have to pay for the repairs if I gave him the baseball bat.
Maybe you would argue that the analogy doesn’t hold because there is no actual harm done with file sharing. That’s a reasonable argument. Let me try a different analogy.
Say I put up a no trespassing sign on my lawn. But someone (lets say a punk teenager, so I can be a stodgy old coot) comes up and walks across my lawn anyways. They didn’t do any real damage, but they did violate my wishes, and my rights as a property owner. They have done me a wrong, and I think I deserve some compensation for it. Maybe in this case, they have to mow my lawn for a month. Or even just give me an apology. Something is owed for the violation of my rights.
Re: Re: Re: If Then Else
This is where we differ. I don’t agree that your belief is reasonable (and neither does the law in general).
If someone damages you (not simply “wrongs” you), then you deserve to be made whole, or as close to it as possible, by the person who damaged you. You do not deserve to be enriched by it, and in the absense of damage, you deserve nothing but an apology.
Re: Re: Re:2 If Then Else
If someone deprives you of potential earnings through admitted illegal actions, do you not consider that damage? If not, why not?
Re: Re: Re:3 If Then Else
How can you be deprived of potential earnings?
1) You either have earnings or you don’t…
2) A person receiving a free copy of a song still is a potential cutomer. Who’s to say that, even with a free copy downloaded, that the downloader won’t go out and buy the album? Hence, there’s still potential for income so the copyright owner hasn’t been deprived of anything. Potential is still potential.
Re: Re: Re:3 If Then Else
I would not consider this damaging. Potential Earnings are not the same thing as Earnings. If he deprived me of actual Earnings, then i’d be upset.
Re: Re: Re:2 If Then Else
I think my belief may be closer to what the law says. The law just words it a little fancier.
I agree with this: If someone damages you, then you deserve to be made whole, or as close to it as possible, by the person who damaged you. You do not deserve to be enriched by it.
But how do you account for damages that aren’t monetary? In the case of the kid trespassing, he has violated my rights. Do you consider that damaging? Maybe not, but I do. I value my rights very highly, even if you don’t. How do we settle that discrepancy?
Re: If Then Else
I’m Ben, not Mike.
Your statement has too many “and”s.
Issue #1:
The record label owns the copyright to a song;
it chose to only make copies of the song available in exchange for monetary payment;
I have a copy of the song, which I paid for;
my computer makes a copy of a copy of the song in RAM in order to play it through a music software.
1) does my computer owe the record label money?
2) do I owe the record label more money because what my computer does when I play their song?
Issue #2:
The record label owns the copyright to a song;
it chose to only make copies of the song available in exchange for monetary payment;
the song’s artist/composer is in MySpace and has the song on a Flash playlist;
my computer makes a copy of the song in a temporary folder in order to play it through the browser’s Flash plug-in;
I move that copy of the song into another folder that is not temporary.
1) do I owe the record label any money?
2) can the record label tell me to pay up if I preserve a copy of their song that a mechanism of their artist caused to be created in my own device?
3) does the record label owe me money for using my device as a storage medium for their song, albeit the storage is temporary?
Re: Re: If Then Else
Re #1
Fair Use allows you to make copies in these instances. No money is owed. Fair Use does not apply in the situation we’ve been discussing.
Re #2
In this case, I’d say the song’s Artist may be guilty of infringement, since they are not the copyright owners. You may not be aware of the situation and are probably not liable for that piece of it. However, once you make a non-temporary copy of that file, then you may become liable. It depends on whether or not you’ve been led to believe that you are allowed to make this copy, or if you would be reasonably expected to know that it would be infringing. IANAL. You can’t be held liable for the artist’s actions; only your own. The record label does not owe you anything, since you voluntarily offered the use of your device without arranging for any sort of payment. You did this when you clicked the song on myspace.
Re: Re: Re: If Then Else
If #1 happened in a computer rental where the proprietor profits from such an activity, is it still fair use? If it’s no longer fair use, does the proprietor owe the record label money for what his computer does?
On #2, granting that there’s nothing wrong about the artist putting the song online in MySpace:
“However, once you make a non-temporary copy of that file, then you may become liable.”
Why? I wasn’t the one who created the copy of the song, rather it’s the artist’s mechanism that caused my device to make a copy of the song. But it’s still my device, shouldn’t I have a say on what stays in it and what doesn’t?
“It depends on whether or not you’ve been led to believe that you are allowed to make this copy…”
Of course, I’m allowed to. Like I said, “they” were even the ones who caused a copy of the song to be made in my device, that’s how much of the Internet works: the server stores data, a client makes a request for the data, the server sends a copy of the data, the client receives the copy and processes it locally.
Point is in this day and age, in both issues #1 and #2, condition #2 (it chose to only make copies of the song available in exchange for monetary payment) is not so relevant in practice anymore; so a change in theory might be required.
Re: Re: Re: If Then Else
“However, once you make a non-temporary copy of that file, then you may become liable.”
I thought this was settled wayback when with the whole Cassette tape (recording Radio) and VCR (recording TV) days.
@PixelPusher220-
But the reverse, that *no one* would have bought it, is likewise not a reasonable statement either.
I don’t think Mike (or anyone) is arguing that the only people who infringe music are people who would never pay money. In fact, Techdirt’s highlighted a number of times that these same people -will- pay money, given a reason to.
I think the point is that music now is now free by default. The cost of distributing a song to everyone with a computer doesn’t cost anything. Joel (and others) didn’t want to pay money for the physical CD disc, and instead just got the music at cost online.
Customers will willingly (gladly even) pay money for things they want. Strongarm lawsuits, government protection, and grandstanding in the media aren’t things customers want though.
Re: Re:
@PopeHilarius wrote:
“I think the point is that music is now free by default”.
This is the crux of the issue. The music in question here is decidedly *not* free. There is a quite specific price attached to it by the Label who is selling it.
Should it be free? that’s an entirely different question. As you say, many of the costs involved in getting the music to market have been reduced, in some cases to effectively zero.
That does not mean that the music provided by the Labels is in any sense free. They are perfectly within their rights to sell it at any price they desire. Just because you can duplicate infinitely and perfectly with no cost doesn’t mean you have the legal right to do so.
Are they being smart? No. But if people simply didn’t trade/download/share RIAA music this really wouldn’t be an issue would it?
Nobody ‘deserves’ to get paid for anything. A person is paid what another will offer. When Napster was being used by everyone, the cost of CDs were $17-$20. The increase in price was to recoup the money lost on piracy. Nobody was willing to pay for CDs when they were that expensive. Does that mean the recording industries deserved to get paid that? No. Because nobody was willing to pay that high of a price.
The whole idea of ‘deserving’ anything is not even part of the picture. If I were to download a song illegally for free that can be found on iTunes for $1, does that mean the recording industry is entitled to be paid for it? No. They won’t be paid unless I’m caught (I don’t download illegal songs for the record… This is only an example). And if I’m caught, they have to *prove* that I downloaded the song, and with today’s technology, it’s almost impossible to prove correctly. If I am found guilty in a court of law and ordered to pay $1 million, is the recording industry ‘deserving’ of the settlement? Probably not. Entitled to it? Then I would say ‘yes’, because ultimately I would have broken the law and must be punished.
But the punishment must fit the crime. Download one or two songs and you’re sentenced to a lifetime of financial ruin? You might as well give someone a life sentence for stealing a candy bar and sharing it with friends. Joel said he offered $500 (all he had apparently) to settle, but the RIAA was not willing to settle for that amount. They didn’t just want money, they wanted to financially ruin the guy to make him an example.
If the RIAA was actually willing to ‘work’ with Joel, they would’ve done so right then and there, understanding the fact that they fined the guy, he would most likely never do it again, and all would have been said and done. Instead, the guy’s life is basically over as he’ll never be rid of the fine. The RIAA must have known they would never get *that* much money from the guy in his lifetime, so why seek so much? To make him an example and show others that they can be financially ruined and their lives are over if they so much as share one song in a manner not authorized by law.
Artists will never see that money. Lawyers will never see that money. So who will have to pay for it? Existing artists who’ve signed up with the recording industry. Lawyers will still get paid, regardless of whether or not the artists like it.
Artists who’ve signed up with them have no say in what the recording industry does (hiring lawyers for tens of thousands of dollars), but they’re sure paying for it. Sort of like a trade union where the teamsters have no say in what the union leaders are doing. That’s the way I’m seeing it, anyway. If I was an artist just starting out, I’d be hard pressed either way. Maybe I’d sign up with the industry just long enough to get some money so I can pay someone to make me a website and develop a fan following on my own.
Mike, you're half way there...
First, thanks for bringing clarity to the first point on Tenebaum’s right to download. That really helps us progress the conversation.
On the second point, I hear what you’re saying, but I still disagree. Yes, it is a separate issue, but the RIAA does deserve to get paid unless Tenenbaum can reverse the copyright infringement somehow and restore the potential business that was lost because of his actions. Tenenbaum can obviously not reverse the infringement, therefore suing him is the only alternative left to the RIAA. Would everyone who took a free copy that Tenenbaum made available have purchased the songs in question? No. Would some people have purchased a copy if Tenenbaum hadn’t distributed it for free? Maybe. And that ‘maybe’ is why it’s a legal issue and the courts need to get involved to help determine the appropriate judgements based on the arguments presented by each side. If Tenenbaum were proved to be ‘bootlegger zero’ for these copied files, then I would say his liability could/should be greater than if he is one of many.
Now, despite my argument, which is based on my opinion, the clearest point of all to me is that the RIAA can not stop filesharing so it’s time to focus forward and not backward and find a new business model.
Re: Mike, you're half way there...
“but the RIAA does deserve to get paid… and restore the potential business that was lost because of his actions.”
How do you measure potentially lost business? How can you physically restore what was only potentially lost?
Re: Re: Mike, you're half way there...
“How do you measure potentially lost business? How can you physically restore what was only potentially lost?”
You can’t measure things that are potential and in this case, you can’t take back the files which were distributed (which is why I said it was impossible). That’s why the courts are involved in ‘judgements.’ The RIAA makes their case that every copied file is a lost sale. Unreasonable. The defendant would like to say that none of those songs would have been purchased but that is impossible to defend. So the courts get involved to come up with a number after listening to arguments from both sides and thus far those numbers have been unreasonable, IMHO.
If I hit you with my car and you are unable to work, for sure you will be awarded a $ figure for lost income, even though the income is potential and we can’t measure it. You will take on the spirit of the RIAA and argue that your career was taking off like a rocket and you would have earned a gazillion dollars. I’ll take on the spirit of Mike Masnick and argue that you had a drinking problem and would have tanked and been homeless within a few years. The courts would decide on a number.
Re: Re: Re: Mike, you're half way there...
Surely, damages have to be reasonable. In the car accident example, both sides sound otherwise. Yet, the amount of lost working time due to hospital confinement and recovery can surely be a measure of lost income; medical bills are, of course, right there.
But in the Tenenbaum example, and I think we agree on this, that what’s lost isn’t measured as easily. So I am left wondering, how can it be so easy for a handful of people to say, “half a million dollars must be paid”?
It seems so crooked.
Re: Re: Re:2 Mike, you're half way there...
We agree that the awards are wrong. I attribute that to lack of insight by those responsible.
In the car accident example, I’m talking about not being able to work ever again (just like you can’t get the files back once they’re in the wild). No, there is no way to measure potential lost income or future medical expenses so the courts must ‘judge’ the loss based on the inputs presented.
Re: Re: Re:3 Mike, you're half way there...
Well even if you go with a lifelong disability, you can draw from REAL things. Like, “Avg. Life Expectancy” being multiplied by the PerYear Salary. They may or may not impose a increasing scale based on guaranteed bonuses, but the person in the accident will be able to draw from other sources. (Disability, Social Security) which may offset the potential raise issue. However, there are solid numbers that CAN BE PROVEN, and the damages are based on THOSE numbers. Not the ‘Well, maybe I could have quadrupled my income if not for this.’ Might the person in the accident lose some potential money? Yes. But they cannot prove the potential additional loses, only the actual loses of ‘I make this, and now I do not.’ Otherwise, I who make 500 dollars a month, could claim that if not for an injury I could have become a master surgeon and deserve 200,000 a month. The first is a provable damage. The second is getting into ‘what might have been’ and should not be considered.
Re: Re: Re: Mike, you're half way there...
If you are in an accident, and to injured to work, there are reasonable ways to come to an estimate. “He earns $5,000 a month. He will be laid up a minimum of two years by this horrible injury. That is 120,000 judgment.” That would be reasonable. However, that is not how it seems to be working.
You proved damages. However, it SEEMS the RIAA likes to argue beyond the proof. So, for the injury “Well, I know I will be damaged two years. BUT I could be more damaged down the line, so, better pay me 10 years for injury.” Or “I could have gotten a promotion if not for the injury, so, you do not owe me the $5,000 I made at the time, but the $20,000 a month I could have earned if I got two promotions.” However, the RIAA seems to go to that like so…
“You earn a dollar* per sale. We can prove you shared at least one copy of these thirty songs. We think you shared upwards of 200,000 copies of each file. On that, we can prove thirty files were shared in full. That is all we can prove, however we say he shared 1,000 songs. So, take $1 as our loss, by the 1,000 copies we think he distributed, and the 800 songs he could have been sharing so he owes 800,000.”
Where as, legitimately it should be the damages proven, or, (.25*1*30) or $7.50.
*(Heck, be honest, they probably get a quarter per sale, if that. Since, it is .99 at Apple, then Apple’s profit, then the amount to the artist (if they are legitimately paying), and the band, and the copyright holders. And the RIAA gets to keep 100% of the settlement, they do not pay any percent of that as far as I can tell. No one down the line, or the retailers do not see the money. So, for sake of argument, say the money is split equally four ways, so $.25.)
Any ways, this is how it seems to me, particularly in the after gloating saying things like “We only proved thirty, but he shared much more.” (Paraphrased of course). Any ways…
Re: Re: Re:2 Mike, you're half way there...
Yes, absolutely. The awards are way out of line with the crime being committed and that part of the system needs to be fixed. It’s insane and will do nothing to solve the problem.
The point I have been arguing here is that the RIAA deserves to get paid for its product, just like any other vendor, regardless of how evil they are and how broken the business model is. You take the product, you owe the price. You don’t like the business model or the price? Don’t take the product. It is not for the self-entitlement crowd – many of whom are well represented here – to decide that the model is wrong therefore they will help themselves for free simply because they can.
Re: Re: Re:3 Mike, you're half way there...
okay, I have an idea.
The penalty for stealing a car should be in line not with the value of a car (there should be no “grand theft”) but rather based on the hourly rental rate for a golf cart. After all, there is no indication that when someone stole a car that they needed anything more than a golf cart. Further, if the car is recovered, did they really steal anything? They at worst deprived the owner of a couple of hours with their car. Car costs 20 grand, going to last 10 years, 2 grand a year, or about $6 per day?
Yup. The fine for stealing a car should be $6 X the number of days you had the car. I am sure that will clear up everything.
Re: Re: Re:4 Mike, you're half way there...
Well… criminal charges aside, since as the person who had their car stolen you do not see any of that if they do pay money.
On the civil part, you recoup the cost of rental, and you are legally required to keep damages to minimal. So, if you can get by on a golf cart rental, you probably should. However, if you need to drive highway speeds, then you should get the cost of a car rental. However, you should not be able to rent a Roles Royce when a Honda Civic will do.
To continue, if you recoup the entire cost of the car, you have to give up the car. Say the car has a blue book of $5,000, that is what you can collect. If you DO collect $5,000 the car is now legally the other persons. Yes, it is probably no more then scrap and they may recoup a little, but that is what you are out. You do NOT keep both.
As for the recovery, if you get it in the exact condition it was stolen in, you can probably collect your rental, a minimal amount for additional wear and tear. But no, you should not be able to collect 20 grand. Hell, the moment you drive it off the lot it loses like a quarter of the value.
So, lets say it has a legal value (blue book estimate) of 9,000, and you get it returned in the same condition. You don’t get to collect the 9,000 it is worth. You do not get to collect the 25,000 you paid for it. You get made whole.
Of course, all that is on the civil side, as is the file sharing case. Criminal liability is separate, and since the RIAA is not a government agency, not applicable. (You cannot sue on Grand Theft, you sue for the actual civil reasons.)
Re: Re: Re:5 Mike, you're half way there...
Add standard AFAIK and IANAL and other. Personal opinion, view, and understanding.
cost of punishment
Mmm I can’t read this as a business model problem at all. That seems like a really stretched argument at best.
You break the law, you get punished, in the case of a civil lawsuit you generally have to pay up. He committed the infringement, regardless of if he would have bought the CD’s, the act of infringing existed and was ongoing. There is no relative comparison.
He was found guiltily, fines where levied as the law prescribes. Now you can argue many things about he those fines being nutty, but that don’t change his actions nor the right of the court to levee a punishment for his actions as the law prescribes.
So, I agree that the record labels have a business model problem, and they don’t automatically deserve anyone’s money. But that has zero to with a monetary settlement for infringement. Just like if a state/fed law was broken and the judge handed jail time down, it’s a function of law and punishment for acts committed and has no logical tie to value or business models (maybe it should but it dose not right now).
So, yeah they do deserve to be paid restitution for his infringement as the law prescribes, it’s just that cut and dry until the civil law is changed. Arguing that material had no value and therefor there was no harm therefor it’s a business model problem is weak, the act of infringement is what is punished.
Re: cost of punishment
The second point is relevant more generally than the first point. And if you agree with the second point, then it would thus impact your normative views of the first point.
Additionally, I believe the law prescribes fines based upon the defree of infraction. The RIAA often makes the argument that every download is a lost sale, which does not pass muster with even a smidgen of common sense.
I think what we’ll eventually see are new artists and bands making their music freely available after seeing the success of Radiohead. More and more will join on the free-music, talk-to-fans model, and that will eventually force other musicians who signed with major labels and are no longer getting paid will *have* to join in or risk losing everything they own and their fans.
As the story on Techdirt was previously posted, record labels will be the ones to sign with bands and will have to relent all rights of music to the bands. If there are two types of labels: one taking all rights to bands’ music or one allowing bands to keep rights to their music, you’ll see more musicians signing with the ones allowing them to keep rights. To compete with that, the ones keeping the rights will have to come up with a business model from heaven to attract artists.
I know which ones I would sign up with. I want to keep control of my music and where it goes.
@PixelPusher220
@PopeHilarius wrote:
“I think the point is that music is now free by default”.
This is the crux of the issue. The music in question here is decidedly *not* free. There is a quite specific price attached to it by the Label who is selling it.
Should it be free? that’s an entirely different question.
Should has nothing to do with this- it’s not that music should be free, it’s that it IS. And the music in question here decidedly IS free- I can go and download whatever I want, right now, for free. The labels are offering that same free product, with a plastic disc bundled into the package, for cash.
This is just economics- I agree that the law hasn’t caught up with the marketplace yet. But law is just creating artificial barriers.
Re: NO, it's NOT free.
Are you serious? Just because you CAN steal something doesn’t make it free.
The labels are VERY clear that the same product is NOT free and that you are stealing it if you don’t pay for it. The labels are not bundling a free product with a plastic disc for cash. If anything, they are bundling a free plastic disc with their product for cash.
This is one of the dumbest posts in this thread.
Name one artist who'll happily collect money from any of these settlements
When you’re talking about who deserves to get paid, where are you putting the original artist when all this comes down? Do you think they see a dime of what the record label makes on a lawsuit like this?
And in the highly unlikely chance that they did – what artist would ever speak aloud of cashing that check?
Sorry it’s not free. Just because it is available doesn’t make it *legal*. By your definition if I wanted to copy someone’s book and give it away online that’s ok right? They wrote it, therefore they have the exclusive right to it for the allowed period of time (an entirely different dicussion for another day).
– The economics of it are as you say. Things are going to be very different going forward. But until the creators/distributors of the music decide they wish to change, it clearly and specifically their right to sue people who don’t abide by the current law of the land.
If you want to share music, share the music of artists who freely give their music for distribution. If you claim it isn’t any good, then you’re claiming there is value in the RIAA music.
– Your claim that the law is creating artificial barriers is exactly right.
IT IS CALLED COPYRIGHT. Copyright is a law that creates a barrier to provide incentive for creation of new and interesting works. That barrier has been wildly defined into abusive territory, but it should and must continue to exist in some form.
@PixelPusher220… again.
I don’t think we’re really disagreeing over much. I think the labels are fighting basic economics, I agree infringement is still illegal, and I’m not for the abolishing of copyright, just getting rid of the excesses of the ‘abusive territory’ you agree its been wildly defined into.
“it clearly and specifically their right to sue people who don’t abide by the current law of the land.”
A response to this though:
We’re a bit off topic now- the original post was whether they -deserve- payment. I think entitlement and economics don’t mix, and they don’t -deserve- anything. But that’s not saying they can’t sue for it as the law allows. Do you feel they -deserve- the money though?
The debate here is about whether, as a society, we should allow content to have value or not.
The argument that the labels have a failing business model ignores the fact that the labels have to deal with something relatively unprecedented: namely, a world where people can get their product without paying for it. All the people saying that “the customer sets the price of an item” oversimplify the situation. The way the customer sets prices in a physical goods market is that they look at the vendor’s offer price and decide whether they will pay and get the product, or not pay and do without. The vendor’s leverage in the situation is that a customer who does not pay does not get to enjoy the product: this is the incentive for the customer to pay at all.
A content vendor must deal with a third situation: the customer does not pay but gets the full enjoyment of the product anyway. As such, unsurprisingly, when you take away all leverage of the vendor in the bargain, the customer sets the price at the level maximally advantageous to him: zero.
Copyright gives the vendor back some of that leverage, but here we have seen that an inefficient legal system has rendered it difficult and obscenely expensive for content vendors to take advantage of this restoring force.
The conclusion here is that, without any restoring force like copyright, market economics would drive the price of a copy of content to zero, and indeed this is true.
A second issue is the ratio between the cost of creating the first copy and subsequent ones. In the world of pizza, the ratio is small. In the world of drugs, it’s thousands of times greater. In the world of music or books, it’s nearly infinite.
Here is where the “deserves” part comes in. If you create something valuable, and which other people want, should you be able to charge them for it? I think many people, even here, would say yes.
But the two issues above taint this situation in different ways. First, they undermine the creator’s ability to charge for his product because he has no leverage over his customers. Secondly, it calls into question what it means to labor at creation: the labor to “create” another pizza is huge compared to the labor to “create” a copy of an MP3 file.
Mike’s business models just take these issues as a given and don’t try to change them. So they are workarounds: charge a tremendous amount for the first copy (patronage), or try to use the content (which has no saleable value of its own) to enhance a different product and increase it’s saleable value.
I have concerns about the wisdom of these workarounds. By deciding not to “artificially” add value to each copy of a work, the value of a copy DOES go to zero. How much more can you realistically charge for an item that is “enhanced” with a copy if content that we already agree is worth nothing on its own?
In this world, every dollar or minute put into content creation is a minute sunk. It becomes even more difficult to recoup these costs than ever. My concern is that people will realize this and then do what is logical: minimize the cost and effort to create new content. As you reduce the value of content quality even further than it already is, do not be surprised when people are disincentivized from worrying about it too much.
Re: Re:
Doc,
Money is, most of the time, physical in nature. It is befitting that it is used to measure the value of other physical products, like chairs or CDs.
Content and information, however, are not physical in nature. So why measure their value with money? Why not measure their value with something else that, like them, are not physical; say “degree/amount of usage or enjoyment” or “respect for the author/creator”?
By your logic:
If buy a chair with money, I get to sit on it. If I have no money for it, I won’t be able to sit on it. Same with a CD.
By mine:
If buy a digital copy of a song with respect, I get to enjoy it. If I don’t respect the artist, I won’t listen to it and thus not enjoy it. If I enjoyed the song a lot, I can spend money for the CD too.
While it’s true that respect doesn’t put food on the table; it’s also true the more people who respect an artist, the bigger live audiences the artist will have, which translates to more ticket sales. And tickets are physical, just like money.
“…There’s no indication that Tenenbaum would have bought CDs in absence of the songs being available online.”
This is such a bulls**t, strawman argument. Lets say I own Ye Old Candy Shoppe… A kid walks in, steals a handful of candy and then runs outside and gives a piece to each of his partners in crime hiding behind the pickle barrel. I take off my apron, run outside and grab “Joel”, one of the miscreant little bastards and drag him by his ear down the street to Officer McDougal.
Joel smirks and says, “hey, you got nothing on me… ‘there’s no indication that I would have bought the candy in absence of it being given to me'” — despite the fact that the smirking little miscreant was hiding behind the pickle barrel and whose sole intent was to get something for nothing.
Joel and the rest of his spoiled, lily-white, privileged friends who live on the right side of the tracks, go to the finest schools and ceaselessly whine to mummy and daddums about the injustice of being forced to actually buy the candy rather than it being given to them for free come up with another strawman “theory.”
The candy store has a job to do, which is putting in place a business model that gets them paid despite the theft of their candy. That’s THEIR fault… It’s not OUR fault. “This is a business model issue, not a legal one, because after all ‘all candy wants to be free.'”
Maybe the candy store should give away the candy and sell candy t-shirts!
The content guys aren’t “competing with free” no matter how many times you say it. They are competing with “theft” from a bunch of self-righteous, bratty whiners who justify theft by blaming the business models of those who produce, market and sell the content.
Even when it costs .99 cents to download a song, spoiled brats like Tenenbaum will continue stealing other people’s stuff. They use more strawmen arguments like “the copyright term is too long” (beside the point), “big content is exploiting the artists” (beside the point), “there’s nothing you can do to stop it” (nyah, nyah, nyah…sticks out tongue).
Tenenbaum (and his crazy as a loon defender Nesson) got exactly what he deserved from a jury of his peers — yes I said it. My hunch is that they were probably solid, middle-class folks who navigate by a much more finely calibrated moral compass than the Internet whiners who have nothing better to do than rant at the top of their lungs about copyright, think the world owes them something, and demand as loudly and obnoxiously as possible that they get it NOW — free music, free movies, free games, free software, free Internet access, free broadband, free wi-fi, free news content, etc. etc.
Like the jury, the majority of us don’t understand you and yorn Mike. We wonder where we went wrong… Why is it suddenly okay to defend theft of something that belongs to someone else? Better yet, why is it the fault of the people who created, marketed and sold it in the first place?
Out of the gazillions of really pressing issues in the world today, it seems baffling at first glance why you and your amen chorus would make such a stink about copyright… But it makes sense… It’s one of those perfect self-serving (selfish) issues that masquerades as a “cause”. Preach “selflessness” to everyone else by arguing that they should give their stuff away for free: content creators, musicians, actors, songwriters, etc. Then kick back, fire up the computer and rake in the free booty!!!
Re: Re:
the problem with you candy argument is that the child steals the candy, and thus the store cannot sell that particular batch of candy. That can be proven.
In Joels case, nothing was stolen and the RIAA’s ability to sell what Joel obtained cannot be provably demonstrated to have been negatively impacted.
Re: Re: Re:
If someone is standing in the middle of your store handing out free candy (that they didn’t buy in your store), which is the effect? You lose sales of candy.
It isn’t difficult to understand. Where Mike is trying to send you is into a mobius strip of failed logic, a twisted way to look at something that is absolutely meaningless.
Joel did the crime (violated copyright). What do you punish him? Make him pay for the CD? So the punishment for file sharing should be, what $10? It doesn’t take someone very bright to see that the damage caused is much higher than $10 – and further, and this is just as important, if the penalty for violating copyright is to only make the original amount “whole”, there is little incentive to be legal – the punishment for being illegal is only the same as the requirement for being legal?
Without significant penalties, there is little reason to be legal. Without any financial penalty at all, it is pointless to even try to sell anything. This is exactly what Mike wants.
Now, take all the same arguments, but replace “file sharing” with “speeding”, replace 30 songs with 175MPH. Now, should there be a penalty for doing 175 on an open road? Why? Was anyone deprived of their rights to the road, or only potentially?
It is just as stupid an argument as the idiotic pizza thing.
Re: Re: Re: Re:
The courts should make the RIAA whole, based on proven evidence. That is it.
Then if the person found guilty shows up and loses again, THEN penalties could be reasonably imposed. However, imposing harsh penalties on the first find seems responsible.
You mention speeding. First offense of speeding is a $100. However, repeated offenses can bring penalties upwards of $5,000 and Suspension of your license. They can prove you speed once. Should you be hit with the full penalties because you MIGHT have sped other times, might do it again, and you might have encouraged others to speed? Or should the courts rule on what can be proven, and only then after you do it again do you get additional punishment?
(Not a perfect example, I know.)
Re: Re:
@AC – Just watch how many people sidestep the very basic and valid points you made because they can’t wrap their little lawyer wanna-be minds around the fact that you used the word theft to describe infringement, as though willful infringement was not just another form of theft. That is the only thing they’ll see in your post.
Re: comment 46
As they say in America..you rock!
@DoctorStrange
If you create something valuable, and which other people want, should you be able to charge them for it? I think many people, even here, would say yes.
You can -try- to charge for it. But if the supply is infinite, and you even acknowledge the price ought to be zero, why should anyone pay more than its worth?
I think you’re concerned that a) If content creators don’t get monopoly rents from copyright, they will make no money. And b) If they can’t make money no one will create content.
I strongly disagree with both of those suppositions.
Re: Re:
I do not acknowledge the price ought to be zero. I acknowledge that, with no outside restoring force to give vendors leverage, the price is inevitably going to be set at zero. What it ought to be is a separate matter.
I also don’t appreciate your caricature of my position. I do not believe that content creators in the post-copyright world will make “no money.” They may well make less money – and not “overall,” but from content creation specifically. I also do not think “no one” will create content. I worry content will still be created with increasing incentive to do so at the lowest acceptable quality for the lowest possible cost.
If you have a cost center and a profit center in your business, you are going to try to minimize your cost center’s costs and maximize your profit center’s profits. By reducing how much you can make from selling content, you only cement content creation as more of a cost center than it already is.
Ironically maybe the record labels understand this better than you think. If all the accusations I read here are true, they have mastered the art of minimizing how much they pay for content and maximizing investments in their profit centers: marketing, sales…
The implication is, of course, that the post-copyright world will not be substantially less shitty for artists than the current one. It may be worse, since it reduces the value of their creation further.
Re: Re: Re:
“The implication is, of course, that the post-copyright world will not be substantially less shitty for artists than the current one. It may be worse, since it reduces the value of their creation further.”
It depends on what they have to sell… If they have something to sell that people want to buy, then they’ll succeed – if they don’t, they won’t – it really is that simple. If you can’t make a product people want to buy, you do not ‘deserve’ to be in business…
My analogy:
The problem, is that companies have now found themselves built up to sell the wrong thing. It’s like the carrier pigeon companies complaining that the telegraph has made their business obsolete – they’d built their companies up by distributing unique messages, but the only thing that made them so valuable, was that the carrier pigeons took so long to do anything and send them anywhere, so each individual message sent was valuable. In fact they were so valuable, that there was a law passed preventing the copying of messages without explicit permission.
Now the telegraph comes around, and all of a sudden, even though the messages they are distributing are still owned by the carrier pigeon industry, and them alone, people are now copying them and sending them by telegraph instead – because it’s better. Not only is it better because it’s fast and reliable – but it’s ALSO a LOT cheaper – in fact, it’s SO much cheaper to send by telegraph, that the carrier pigeon business is doing everything it can to try and stop the telegraph from working properly.
The problem for the carrier pigeon industry, is that one pigeon can only carry one message to one location at a time, whereas the telegraph can send the same message to many different locations at once, and it’s so much cheaper to send a message, it’s almost FREE.
However, they found someone sending a couple of their messages by telegraph, (obviously copied from at least two of their pigeons), and so they sued him/her. And got awarded millions of dollars. All for a couple of messages that cost pennies to transmit by telegraph, but $/£’s by carrier pigeon.
Of course, the carrier pigeon industry’s excuse, is that their messages cost a lot more to make than those sent by telegraph. But they’re wrong. This isn’t he problem.
In fact, the messages sent by telegraph cost the same amount to make as those sent by carrier pigeon. The problem is that the telegraph industry is already thriving by itself, and sending more than just the messages similar to those sent by carrier pigeon. In fact there’s so much information being sent, that to try and dictate by information type simply wouldn’t work – (too much overhead) – so they charge a flat fee for TIME used, (in which to send any messages and information you people want, to as many people as they like), and this manages to cover the cost of all the information sent and received.
Indeed, because so much MORE information can now be sent, (as opposed to the short messages which carrier pigeons were limited to), many industries have evolved to take advantage of this fact.
All except the carrier pigeon industry, which is still sitting on top of their pile of their own created messages, and suing anyone they can find who sends them by telegraph.
And they refuse to accept that the messages they have are now only worth pennies since that’s all they cost to be sent (by telegraph). In fact, some of their members have tried to send their messages over telegraph for the same price as by carrier pigeon, and are wondering why no-one is buying…
And so they complain to the government, saying that everyone is illegally copying and sending their messages by telegraph instead of using them and their pigeons instead.
And then, unfortunately, they do ‘everything’ they can to make sure that the government listens to them, and enacts laws in their favour, that make it illegal to read and copy a message from a carrier pigeon if you haven’t paid for it.
But because everyone is now using the telegraph, they don’t care, and just ignore them, even if they do like the messages copied from the pigeons. In fact, some people still buy the messages from the pigeons they like so much, but, of course, the numbers doing so are declining.
And then another company comes along, which has more to do with making telegraphs than breeding carrier pigeons, and they come up with a easy way to buy, send and receive messages online for a slightly increased cost. They then do a deal with the carrier pigeon industry for some of their messages too. This is a great success in the world of the telegraph, and for the company involved. In fact, it’s so successful that other companies start doing the same.
But the carrier pigeon industry STILL isn’t happy. They’re no longer making the sort of money they used to make when a carrier pigeon was the only way to send messages, and so they try to increase the amount their messages sell for and try to limit the supply so that they’ll be more valuable.
In fact, they’ve never once had all of their messages available for sale, simply because they’re afraid they’ll lose all of the value they have,and so they keep a lot of them still locked away some where where no one can read or copy them.
But people want to send all of the messages, and they want to do it for the prices they’re used to using the telegraph – they’re not interested in carrier pigeons anymore…?
But the carrier pigeon industry is still holding out and complaining – in fact, they’re even making the pigeons MORE expensive to send.
And so the people have had enough, and copy and send any of the carrier pigeons messages they like, regardless – if they don’t want to sell them to them at a price they want, then why should they get their business and money.
And, of course, the carrier pigeon industry isn’t the only message making company. Although making messages to send via telegraph isn’t really worth very much, in fact, it’s probably hard to make living out of, people have found other ways of using the messages themselves in order to make the money elsewhere.
Does the carrier pigeon industry deserve to exist? Does it deserve to make money? Does it deserve all the judgements and fate of every individual who sends and copies their messages over the telegraph? Or should they change their business model so that they now sell a product that people want to buy at a price they want to spend? If the messages are almost worthless once created, since they can be copied and sent anywhere people choose for very little money, then why can’t they find something else to sell? Lots of other people have, so why can’t they?
And since messages are now worth very little, and can be copied and distributed so easily and cheaply, what does that mean for the law that prevents such things without permission?
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“I worry content will still be created with increasing incentive to do so at the lowest acceptable quality for the lowest possible cost.”
That would be called rap music.
This is already happening, yet when artists release something of quality, it becomes widely renowned and *purchased*, whether on a RIAA label or not.
‘Ought to be’ is meaningless in the market. Customers say the price ought to be zero. Creators say the price ought to be enough to never have to do anything else ever again. Mechanics and technology say that the price CAN be zero, or so close as to be indistinguishable from zero. (To the limit of zero approaching from the positive direction…)
Pizza analogy time!
The intrinsic problem with the pizzas is that they aren’t infinitely reproduceable. Let us assume that a company has figured out a machine that lets them make One Pizza (let’s call it the Golden or the Master Pizza) which when put into a machine will reproduce several other pizzas of the same quality and type. Then they go on market, and since hey, everyone’s selling pizzas for $15, they sell theirs for $14.
Now, lets assume that this company splits into several parts, and for the most part, pizzas stay around $14 because all the companies want to say THEIR recipe of Master Pizza is inherently valuable. All is well for the pizza makers, getting $14/pizza when it costs them essentially nothing.
Then the Pizza Copier becomes widely available to all. Suddenly, people are noticing they can get their pizza for free as long as someone else passes them a pizza first. Pizza for All! And the companies complain that no one is buying their $14 pizza, and that everyone who copies one (for negligible cost) is automatically liable to the company for $14, and then also liable for $14 for every copy of that pizza ever made by that person, whether it was eaten or not. These companies are resented by people, because people can see now that they’re essentially just making infinite copies at no cost and trying to get paid a price for them beyond what the intrinsic value of the pizza is.
Smart companies realize that the pizza they’re making for free is now valued as much as it takes to make it, and instead use the pizza to sell soft drinks with it, delivery to people’s homes, breadsticks, and a few companies actually ditch their Pizza Copiers and make it by hand, advertising the fact that they can make the pizza right in front of you. These companies are applauded for overcoming the Pizza Copier invention and creatively finding ways to survive in business.
Do a text replace on Pizza and replace it with Music and it becomes surprisingly accurate. (Except for the breadsticks.)
No music has inherent value. In recent times, there are enough people making music that you can listen to whatever you want, and get it from different bands, labels, whatever. Any genre of music, you can name tens of *well-known* artists, and there are more not so well-known. Music is plentiful, and not just because you can copy it. It’s like trying to charge people for breathing, or for looking at grass. It’s everywhere.
Re: Re: Re: Re:
“Do a text replace on Pizza and replace it with Music and it becomes surprisingly accurate. (Except for the breadsticks.)”
then do a text replace on pizza with “breadsticks” and “cola” and so on.
Endless free doesn’t solve the problem, and it is just as easy to make one thing free as the next. Mike never likes to run the stories I send in showing free concerts, or t-shirt give aways, or free artist “meet and greets” because all of those things are the supposed finite goods that we are all suppose to be paying way over the margin for to make this all work. So instead of $10 CDs, $20 t-shirts, and $50 concert tickets, we have “infringing” CDs, $40 t-shirts and $200 concert tickets. Try to tell me that this is a more effecient market, and has better reach.
I couldn’t pay anywhere near that amount so I would find all the music I could get my hands on. Share it and say come and get me again. You want your money? Stand in line like everyone else.
all those (damn) pizza analogies....
Please, can people STOP trying to find analogies for the music industry by trying to use physical property and objects in place of INFORMATION. It CANNOT, WILL NOT, and will NEVER work…
Information is NOT property, and one of the reason why everything is so screwed up these days is because people keep on trying to treat it as that, and failing dismally, but dragging everyone one else along with them.
But the information itself ISN’T the problem here!
The problem is that some of the industry got itself so set in it’s ways about DISTRIBUTING the information, (i.e. the carrier pigeon vs telegraph analogy I give above), that they’re having trouble adapting to a newer, more efficient method of distribution, (and copying).
If the industry had charged for the creation of the information to begin with, rather than it’s distribution, it wouldn’t be in this situation right now.
And THAT is why it’s ENTIRELY a business model problem, and NOTHING ELSE. And it’s no-one else’s problem, but theirs – if they can’t adapt, then tough cookies.
If he was found guilty of copyright infringement then he should be charged appropriately according to the law.
The key word here is “appropriately”. Right now he is not only being charged for his crime, but the “potential” crime of others. If the amount of users the files where shared with is unknown, how is the appropriate cost determined? Also, why is he being charged for the crime of other users? If these other users found filesharing, won’t they also be charged for the crime they committed?(seems like some double dipping to me)
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Again, what do you consider appropriate? $10? Would that stop anyone from file sharing? Would $100? $1000? The scale of the amount set in this case is appropriate to stop the behavior, to go to some step to make the complainant whole, and to at the same time make it clear to others that this is the fate that awaits them.
It isn’t a question of potential crimes here, putting the music up for widespread distribution means that even if he is completely stopped, the actual spread of the music never will (until you track down and prosecute everyone with the file). In some ways, the amount awarded is small, as the damage continues to be done. He can’t undo it, he can’t stop it.
I consider appropriate cost the retail cost of the product multiplied by the proven number of users they distributed the file to. Once the file is on someone else computer and they start to distribute it also, then that is the new users crime, not his.
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Answer me this, though. How do you prove who was shared with and how many? IP addresses are notoriously unreliable and easily spoofed. How do you justify invading someone’s privacy to search for something that only MIGHT be on there?
And once again, for those who just don’t get it or won’t get it:
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
BY LAW, INFRINGEMENT IS NOT THEFT.
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Congrats Andrew. Now, would you also include funds in there for the company to spend, I dunno, 6 or 8 months searching the internet for instances of the song? Perhaps we can just have everyone in the world hold up their hand so we can count them?
I think of it like getting caught with drugs. A little is personal use, a lot is “sell weight”. Someone with a few songs on their Ipod is a “user”, someone with a file sharing program turned on with a large number of songs in their sahre directory is “intent to distribute”. Why should you have to go any further?
The burden of proof is on them, it is not my concern how they obtain this information(as long as the do it legally)
The right being taken in this case is the right to distribute, so the user should be charged based on what they distributed, not what other distributed.
Man, Friday night at this place is awesome!
I have never seen so many implausible drunken analogies.
But seriously, why do so many people have so much trouble distinguishing between these positions:
1. Recorded music is free because I want it to be and so fuck the RIAA.
2. Recorded music is free due to vast technological forces beyond anyone’s control, so people who make it had better figure out how to adapt.
Almost every single naysayer that comes to this site tries to ignore point 2, and pretend that everything said here is really just window dressing for point 1. Usually they are really fucking rude while doing this.
It’s a childish debating tactic which takes what could be an interesting forum and turns it into a huge sophomoric mud pit.
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The problem is 2 is caused entirely by 1.
Computers and the internet doesn’t suddenly mean free music. You need #1 to make it happen. The internet is just a tool. It’s like a hammer, it doesn’t build the house by itself. Blaming it all on technology is the “two black youths” of online crime.
Re: (herodotus)
“
1. Recorded music is free because I want it to be and so fuck the RIAA.
2. Recorded music is free due to vast technological forces beyond anyone’s control, so people who make it had better figure out how to adapt.
“
But even this doesn’t get the proper reason for what is going on:
Distribution of information, (as well as its storage), at this moment in time, is almost free, (and getting cheaper).
The reason why there’s a problem, is because large parts of the music industry have been built on the premise that distribution is a) expensive, and b) under their control.
Now those two are no longer true, they’re having problems…
Just my musings:
I wonder how discussions would be effected if all persons making comments understood the distinction between a trade association (e.g., RIAA, MPAA, BSA, AMA, ABA, IEEE, AIAA, AIA, etc., etc.) and its membership. If appears the the distinction between an association and its individual members is largely lost in heated rhetoric. Industry associations serve to advance or weigh in on issues its membership deems of interest and/or important to its members. It does not engage in commerce. It does not produce and sell products and/or services. This is what its individual members do on a daily basis.
In the context of the RIAA, it is not the plaintiff in any of the lawsuits brought by labels. The plaintiffs are the labels who may happen to be the holders of copyright in music compositions if the contracts they enter into with one or more musicians provide that the label will be deemed the owner of such copyrights. In return for an artists agreement to transfer copyright to a label under contract, the artists receive varying degrees of consideration, oftentimes cash payments, obligations assumed by a label to produce and promote musical “products, perhaps a royalty, and other benefits designed to get an artist’s name out into the public eye. The artists are getting paid by the labels, but such payment is in accordance with the terms of whatever contracts may happen to apply.
Additionally, artists are in many respects the functional equivalent of inventors in the technology arts. They help create a product with the assistance of numerous other people in the employ of labels who each serve an important role, including, inter alia, product creation, marketing and distribution. In other words, the creation of music requires a multitude of persons each having a unique role and skill set they bring to the process.
Until these fundamental distinctions are understood, it is likely that discussions will continue to proceed based upon an inaccurate understanding of the music industry. Until these distinctions are understood and the roles so many other people play in the production, marketing and distribution of music products, it seems to me that people will continue obsessing with artists and overlook all the other people who for a necessary part of the music production process…all of whose salaries are dependent upon the influx of cash for product.
So, when people say “Show me how much the artists will get”, what they should be saying is “Show me how much the music production/marketing/distribution will get.”
Re: Re:
I wonder how discussions would be effected if all persons making comments understood the distinction between a trade association (e.g., RIAA, MPAA, BSA, AMA, ABA, IEEE, AIAA, AIA, etc., etc.) and its membership. If appears the the distinction between an association and its individual members is largely lost in heated rhetoric. Industry associations serve to advance or weigh in on issues its membership deems of interest and/or important to its members. It does not engage in commerce. It does not produce and sell products and/or services. This is what its individual members do on a daily basis.
Actually, I don’t know if you deal with the RIAA or its member labels often, but your characterization here is not true. I deal with lots of folks who deal with the RIAA on a regular basis, and they all say the same thing: you’re not dealing with the labels, you’re dealing with the RIAA. If you call the “labels” about these issues they hand you off DIRECTLY to the RIAA. If you talk to the labels about these issues and strategies they tell you the strategies were worked out by Cary Sherman and his team because “they know better.”
In the case of the RIAA, it really is them leading the charge, not the other way around.
In the context of the RIAA, it is not the plaintiff in any of the lawsuits brought by labels. The plaintiffs are the labels who may happen to be the holders of copyright in music compositions if the contracts they enter into with one or more musicians provide that the label will be deemed the owner of such copyrights.
Yes, in theory, but not in reality. Sure, the RIAA isn’t named, but its hired gun runs the proceedings, and the labels simply take the word of the RIAA on how to proceed.
I just met with a company last week who is negotiating a project with a label, and they couldn’t believe that the label told them it had to negotiate directly with the RIAA.
There’s another company I spoke with recently trying to deal with SoundExchange, and when they got their conference call, the guy from SoundExchange didn’t say a word… but the guy (they didn’t even know he was invited) from the RIAA led the meeting.
Until these fundamental distinctions are understood, it is likely that discussions will continue to proceed based upon an inaccurate understanding of the music industry.
I would suggest that perhaps it is you who has an inaccurate understanding of the music industry.
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I deal with lots of folks who deal with the RIAA on a regular basis, and they all say the same thing: you’re not dealing with the labels, you’re dealing with the RIAA.
I am pretty sure you meant to say something other than people who deal with the RIAA end up dealing with the RIAA.
Yes, in theory, but not in reality. Sure, the RIAA isn’t named, but its hired gun runs the proceedings, and the labels simply take the word of the RIAA on how to proceed.
I must, of course, agree that some person(s)s at the RIAA has/have a substantial hand is directing litigation strategy, but I am quite confident in asserting that in-house counsel for each of the labels named as plaintiffs are not sitting back on their thumbs and letting the litigation counsel call all the shots. I daresay in-house and litigation counsel spend a good deal of their time on the telephone or in person discussing what needs to be done, why and how. Moreover, except perhaps in exigent circumstances, it is highly likely that no document is filed with the court before it has been seen and approved by in-house counsel.
I just met with a company last week who is negotiating a project with a label, and they couldn’t believe that the label told them it had to negotiate directly with the RIAA.
Obviously there are underlying facts and issues that are not presented here. Yes, I can see circumstances where this may very well occur depending upon the nature of the project being discussed.
There’s another company I spoke with recently trying to deal with SoundExchange, and when they got their conference call, the guy from SoundExchange didn’t say a word… but the guy (they didn’t even know he was invited) from the RIAA led the meeting.
I can easily envision scenarios where this would be quite likely, just as I can envision scenarios where it would not at all be likely. Again, it depends upon the facts and issues involved, none of which are presented.
I would suggest that perhaps it is you who has an inaccurate understanding of the music industry.
I readily admit that I am not versed in all aspects at all levels of the music industry. My contacts with it have been relatively limited. The reason I made the comment was simply that so many people who discuss these issues appear to believe they are versed in the industry, but it is clear from the comments they make that this is not the case. It is frustrating in a way to read remark after remark about the music industry that seem premised on the belief that everything is about “artists” and “suits”, when, in fact, these two groups are only a part of the population that comprises the music industry. Of course, this is a truism that can be said of any industry.
Re: Re: Re: Re:
It’s also interesting that every one of Mike’s assertions here are “There’s another company I spoke with recently trying to deal with SoundExchange” and “I deal with lots of folks who deal with the RIAA on a regular basis”. Yet, it doesn’t appear that Mike spends much time talking to anyone from the RIAA, and has no direct experience. Seems to make it so that he isn’t any further ahead on this than the rest of us.
“Now, would you also include funds in there for the company to spend, I dunno, 6 or 8 months searching the internet for instances of the song?”
Perhaps, The user did cause the need to search, so they could be held accountable for those fees at well. The only deserve what the law allows them, which I’m sure litigation and investigation costs are included in that amount.
“I think of it like getting caught with drugs. A little is personal use, a lot is “sell weight”.”
-Personal use – Downloading a file is no illegal(at least that hasn’t been attacked yet)
-Intent to distribute – This, as far as I have seen, is usually based on amount, and/or if there are individually wrapped packages
So I can see that analogy
All this said, I don’t agree that they should be able to go after users like this. I don’t believe “piracy” is the cause of their problems. As a person who used to download all my music for free, I have since switch to *DRM free* pay alternatives(Amazon MP3). I switched mainly bacause there is a know quality of these mp3s and they are always proper ID3 tagged(you know..that RtB thing mikes been talking amount). With DRM I would not have been able to use the music the way I wanted, so I did not buy it.
(EULA – By reading the above paragraph, you have waived your right to sue)
Re: Re:
“-Personal use – Downloading a file is no illegal(at least that hasn’t been attacked yet)
-Intent to distribute – This, as far as I have seen, is usually based on amount, and/or if there are individually wrapped packages”
My feeling is that user with a computer, online, with torrent software, 10+ songs in their share directory, being actively shared (or at least made available) is intent to distribute. There shouldn’t anything beyond that, the intent is there, and then it is up to the jury / court to decide within the guidelines set by law as to what the punishment is. It isn’t any different in many ways than sentencing for drugs.
“As a person who used to download all my music for free, I have since switch to *DRM free* pay alternatives(Amazon MP3). I switched mainly bacause there is a know quality of these mp3s and they are always proper ID3 tagged(you know..that RtB thing mikes been talking amount).”
Yeah, but here is the rub – Mike doesn’t expect the RtB to go to actually buying music. Music is the advertisement, the sales pitch, the TV commercial, that sells t-shirts, concert tickets, and other “rarities” (mostly artificial in construct). You should never buy music, that is pointless – you can get it all for free. 😉 (please turn on your sarcasm detector, in case you might have missed it)
“Mike doesn’t expect the RtB to go to actually buying music”
Well, in my example, the music wasn’t the reason I bought. It was the ease of getting it onto my mp3 players in a nicely formatted way. ID3 tags were important enough that the non standardized mp3 I already had got replaced by paid for standardized mp3s.
The music (even properly formatted) is freely available free on the internet. I know that, but it just not worth my time anymore to go looking for it.
a little late but...
I agree with Mike 98%…period.
Because, I think this is funny…When there is no competition HOW can you say said business deserves anything? If your not saying they “deserve” anything and you brag its about law then we REALLY do have a problem because when it comes down to everyone(LIKE anything else) laws are subjective and don’t blame the citizens for the lack of power OVER the laws. Its not the end of discussion by any means and reveals a even bigger problem.
Some of you say the Joel Tenenbaum did NOT offer a service or business and in so just broke “laws”. First of all the RIAA does NOTHING..0, zilch, crap, USELESS. They are litigation team of anti-humans. The labels pay them to abuse citizens for not paying them to break into their homes. SUCH MAFFIA, imagine that. Second, actually he did HAVE a business model..it was distribution and he could ONLY do it because TIMES have changed. Cd’s are REAL and we can now do what the mighty label gods could always laugh at us for not being able to do. Also he did so with no payment.
You have to see that right? Tapes did it before hand nothing new here in the DISTRIBUTION methodology that has never stopped..just a new tool…the INTERNETS. It allows us as PUNY human beings and not ravenous unforgiving label gods to have the same power but it allows for easier “tracking” under a house full of laws that are QUITE ambiguous! If you ever wanted to see something bigger than M$ then your looking at it. I see enterprise, you want to see someone you can burn at the at stake cause you like the smell of roasting humans. “Things” change kiddos like it or not, people don’t as you can see.
http://wlancontroller.com can be used for scanner and access point