p2pnet news | RIAA News:- “I don’t think we’ve suddenly had a massive morality shift, where tens of millions of Americans who wouldn’t shoplift a CD in a store have suddenly lost their moral compass and are rampaging out there, eager to break the law.”

Or …..

“There are tools, in terms of, uh, uh, authentication here, and, uh, uh, I’m not a technician so I’m, I’m, I really can’t go into that in great detail.”

The first remark came from leading EFF (Electronic Frontier Foundation) lawyer Fred von Lohmann in a documentary on American Public Media’s Marketplace.

The second was from RIAA (Recording Industry Association of America) spin-doctor-in-chief Mitch Bainwol, both of whom were interviewed for a three-part American Public Media Marketplace series which kicks off:

The recording industry has gotten serious about illegal file sharing. In the last four years it has filed thousands of lawsuits. But, as Bob Moon reports in a special series, even those targeted by mistake, like Tanya Andersen, get no reprieve.

It takes a long, hard – and commendably objective – look at Warner Music, EMI, Vivendi Universal and Sony BMG’s bitter and relentless assault on the men, women and children who keep the money rolling in and whom the Big 4 are calling criminals and thieves. But even as the major labels desperately try to sue them into once again becoming the compliant cash-cow ‘consumers’ of the physical 1970s, the technically intelligent customers of the 21st digital century are dangerously determined to exercise their rights to choose freely.

Part I, No pause in music industry’s tough play, aired on Monday, Part II, Free? Illegal? … What’s the difference? Music biz’s future rests on key changes, was broadcast on Tuesday, and Part III, Music biz’s future rests on key changes, was heard yesterday afternoon, wrapping the three-part series.

Featured, in addition to von Lohmann, are:

• Tanya Andersen, the disabled Oregon mother who’s looking for class-action status in a case she wants to bring against the Big 4’s RIAA (Recording Industry Association of America) .
• Lory Lybeck, Andersen’s lawyer, a deft hand who’s consistently challenging the Big 4 enforcement organisation’s legal teams
• Ray Beckerman, the New York attorney who was one of the first to act for RIAA victims and who today runs Recording Industry vs The People, a blog caring detailed reports of cases, together with links to stories and commentaries covering them
• Bainwol
• Peter Jenner, the former Pink Floyd manager who currently represents an artists’ coalition in London
• Felix Oberholtzer from the Harvard University Business School, who, with colleague Koleman Strumpf from the University of Kansas School of Business, first firmly gave the lie to corporate music industry claims that files shared equal sales lost. Their paper, The Effect of File Sharing on Record Sales: An Empirical Analysis, remains a milestone

“It was challenging to try to sort through a lot of seemingly contradictory angles to all of this, coming from different directions, frankly,” the series presemnter, Bob Moon, told p2pnet shortly after the final segment aired.

“One example is something we just didn’t end up with enough time to explain as we were heading into production,” he said, going on:

As we know, the recording companies have now stipulated – and a judge has ruled “with prejudice” – that there was no case against her. It just adds yet another confusing layer if you try to explain that they’re now arguing their motion to have her countersuit thrown out, at least in part, on the idea that she really was an online pirate who should have had no expectation of privacy.

It really raises the problem of how detailed can a story be before your listener starts losing track of everything.

The answer to that is probably: as detailed as necessary, and that’s exactly how it’s starting to be, thanks entirely to the Net which gives online citizen media and reporters the space and the freedom to be as verbose is they need to be.

In Part I, No pause in music industry’s tough play

—- Tanya Andersen relates how she reacted to a letter, “warning that she had breached undisclosed copyrights and owed hundreds of thousands of dollars” which she initially believed was a scam, “until she phoned someone at what the industry calls its “settlement support center’,” says Marketplace, going on:

ANDERSEN: You know, I told them, “Look, take my computer. Look at that. I can prove to you I didn’t do this.” And he said, “What do you guys expect us to look at everyone’s computers that says they’re innocent?”

The first lawyer she consulted offered some advice that turned her stomach:

ANDERSEN: “Just let ‘em take a judgment against you and file bankruptcy.” And I told him, “Why should I have to do that? That’s not fair.” And he said, “I didn’t say it was fair. It’s how you have to deal with those people.”

So it was back on the phone to the “settlement center,” where she says a support rep listened sympathetically.

ANDERSEN: He ended up telling me, “Well, you can write a letter to my bosses, but no guarantee. Once they start a lawsuit, they just don’t back off.”

LORY LYBECK: And that’s when her life went down the rabbit hole.

That’s Lory Lybeck. Andersen’s lawyer:

LYBECK: Lo and behold, somebody shows up at her door with a federal lawsuit, saying “We’re going to ruin you. We’re going to sue you for over a million dollars.”

He bases that on the industry’s past demands for up to $750 per song. He says Andersen was accused of trading 1,046 music files.

Lybeck responded with a counterclaim in the fall of 2005, and Andersen says after that things really got ugly. It was right around the time she moved to a new home, and her apartment manager got a call:

ANDERSEN: He told them he couldn’t release my personal information. They told him that he would either give it to them or he was going to get in a lot of trouble. It terrified me. Come to find out, they were trying to serve Kylee.

Her daughter, who was just 7 years old when the file-sharing supposedly happened. Andersen’s lawyer says he was able to confirm that call came from the recording industry’s law firm. What remains a mystery is something else that he says happened around the same time:

LYBECK: Calls were made to Kylee’s elementary school, under the pretext of somebody calling saying they were Kylee’s grandmother, and was she there that day? I haven’t tracked that call directly back to the law firm, but it was most disturbing, especially since Tanya checked, and grandma made no such calls.

The head of the Recording Industry Association of America refused to comment on any specific case, but Mitch Bainwol did tell us this.

MITCH BAINWOL: I would remind you that folks, when they have a legal dispute, often can be creative with the way they portray the facts.

In Part II, Free? Illegal? … What’s the difference?

“I often run into musicians and artists who say, ‘Thank you for what you’re doing,” states Bainwol. ” ‘We know you take hits for this, but it’s about my future, it’s about my dream. And I know that our property has to be respected’.”

Says Jenner:

It’s the same way that when you see lots of civilians being killed in a war, you know that’s bad for your war. And I think it’s the same if you’re harming individuals randomly.

No one disputes that millions around the world continue to engage in unauthorized sharing of music. But critics complain the industry is using desperation tactics that haven’t solved the problem and, they charge, are both legally and morally dubious.

Say Beckerman:

The RIAA doesn’t conduct an investigation to find out whether someone committed a copyright infringement. It conducts an investigation to find out who paid the bill for an Internet-access account. And that’s where their investigation should begin, but in their weak minds that’s where it ends.

Lybeck picks up the thread:

Parents are falsely accused of downloading music and are sued inappropriately for downloading music every day.

MOON: Aren’t they responsible for what their kids do?

LYBECK: No, the law certainly doesn’t support that, unless they’re benefitting from it in some way.

When parents do decide to fight, he says, lawyers show no shame training their legal guns on the children. Lybeck points out the industry has sued kids as young as 12 — nevermind something the head of Warner Music, Edgar Bronfman, told an interviewer.

LYBECK: He was being questioned as to whether his children had downloaded music, and he frankly admitted they had. “But don’t worry, I’ve had some very stern conversations with them, and they’re not going to do it anymore.” Which, out of fairness, a lot of parents would like to have that opportunity, rather than being pestered and abused and threatened with financial ruin with a federal lawsuit.

The industry might actually be tempting youngsters, and even adult fans, to try out the very file-sharing sites it’s battled for years to shut down.

You can hear this confusion as the head of the RIAA lays out his case for us. Initially, he argues flatly that “free” means “illegal.”

BAINWOL: The reality is, almost everybody understands that the practice of taking copyrighted works for free is illegal.

But what about when the industry is giving away its own free songs? . . . This summer, a deal was announced to flood file-sharing sites with 16 million free downloads, reportedly from the popular rapper Plies.

Trouble is, fans were left guessing exactly which track would be legally free. And until the file is actually downloaded, there’s no way to be sure that it’s the “authorized” version that includes an embedded ad. Sprint pays for its logo to appear whenever the song is played.

The label that’s reportedly offering these free songs is one of the same companies that’s been suing to discourage file sharing. Question the head of the RIAA on this haziness and — listen closely — Mitch Bainwol starts making subtle exceptions.

BAINWOL: Teenagers today understand that if you get something for free, in all probability, unless it’s explicitly legal, it’s not.

FRED VON LOHMANN: How’s the fan supposed to know?

That’s Fred Von Lohmann of the Electronic Frontier Foundation. He complains the moving lines could lure unsuspecting fans into being sued. And it’s not just the file-sharing sites that leave him confused. Some online bulletin boards also offer free MP3 music files, seemingly with the industry’s blessing:

VON LOHMANN: Promotional CDs get sent to these MP3 bloggers all the time, really encouraging people to post some stuff on the Internet, get some buzz going. There are some independent artists who take a much more open-minded view to file sharing. Many fans have no idea whether their favorite artist is on an independent label or on a major label. This is just an area of continuing confusion.

We tried asking the industry’s top representative how the average law-abiding teenager — or even his own organization — might tell the difference between what’s legal and what’s not. But even Mitch Bainwol didn’t seem to know clearly:

BAINWOL: There are tools, in terms of, uh, uh, authentication here, and, uh, uh, I’m not a technician so I’m, I’m, I really can’t go into that in great detail. I’d be happy to get you somebody who can.

Check the press release http://investor.news.com/cnet?GUID=2554371&Page=MediaViewer&Ticker=ARTD announcing those free ad-supported downloads we mentioned and it simply says, “The tracks are indistinguishable from illegal, pirated content.”

Despite this left-hand, right-hand confusion, and questions about his industry’s tactics, Bainwol told us he’s convinced the ongoing lawsuit campaign against music fans continues to be a valuable educational tool.

In Part III, Music biz’s future rests on key changes,

—- the recording industry’s “top lobbyist, Mitch Bainwol,” insists his organisation is trying to adapt and support the technologies fans have embraced, “even in the face of ridicule that it’s too little, too late”:

Mitch Bainwol: We are seeking to monetize all sorts of distribution channels. I find it ironic when we do what critics want us to do, we get criticized for that.

Online sales are steadily rising, and Bainwol sees that as a reason to keep on suing unauthorized file-sharing fans. He says that legal pressure helps give legitimate Internet sales what he calls “the traction they need.” He’s convinced history will record his industry’s tactics as pivotal.

Bainwol: It took some pretty gutsy actions by the music industry and others to establish that, in fact, intellectual property is worthy of protection.

‘Cowardly’ might be a better word than ‘gutsy’, and meanwhile, Von Lohmann sums in an opinion Bainwol and the people who pay his salary will do well to consider deeply:

I think 10 years from now, everyone will look back at this entire episode with shame. I can’t believe it ever got so bad and we were so unimaginative, unable to transition to a new model, that we actually started treating our customers – our fans – as the enemy.

If nothing else, the series will sensitise people who may never have heard of the bizarre RIAA sue ‘em all marketing campaign to some of the issues.

Each segment attracted the largest number of listeners as Marketplace aired them and this morning, all three were at the top of the online lists.

Moon says flagship afternoon show Marketplace and the early Marketplace Morning Report are heard by an audience of more than 8.1 million unique listeners during the week, and on more than 330 public radio stations nationwide.

The program is also distributed worldwide by American Forces Radio and also has the largest audience of any business program in the United States, on radio or television, says American Public Media.

Definitely stay tuned.

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This entry was posted on Thursday, September 20th, 2007 at 5:19 am and is filed under RIAA News. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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