p2pnet news view Kids & Kartels:- | Advertising | P2P:- I thought the reappearance of Psystar on the Apple front was pretty funny. If nothing else, it shows Jobs and his merry crew of Reality Distortion specialists aren’t as all-powerful as they think they are.

In May, as Psytar points out in a letter to customers, it filed for Chapter 11 protection but, “we are now ready to emerge and it again battle Goliath,” it says. “More information will be available in the coming days when will be formally discharged by the Bankruptcy court.

“When life gives you apples, make applesauce.”

In a Reader’s Write to the p2pnet post saying Psystar was back, “Apple has a niche selling premium products to people who are willing to pay for that premium,” said Lachlan, but, “I think the word ‘premium’ here is a farcical perception perpetuated by that ‘niche’ market,” said Devil’s Advocate.

I responded, posting, “Way back in the dark reaches of time when I wrote for a friend who had one of the first ‘computer’ newspapers, Apple actually gave me a Mac and a printer. It was a relatively new company and the idea was I’d write about its product(s). But because a) unlike a PC, you couldn’t fool with it unless you were an expert; and, b) most people couldn’t afford it, or the software needed to run it, I couldn’t see how it’d be of much use to the general population. So I gave it back. With apologies to surfer, a keen Macolyte, I used to believe those who bought Macs (and were subsequently afflicted with the manic religious fever which seems to hit most people who own an Apple product) had secret brain implants. Now, I realise they’re just too embarrassed to admit they were had. ”

However, “Basing your current opinion on preconceptions garnered a long time ago is not a wise course of action,” reckoned Dan, and I replied:

“As far as I’m concerned, there’s not much to choose between Apple stuff of yester-year and Apple stuff of today. But it isn’t just that, or the fact Apple and Jobs were among the early, and most enthusiastic, long-term adopters of DRM, or that Jobs closed down an excellent Apple-centric site for promoting ‘product’ before he wanted it promoted. Etc and so on. What really bothers me, and it’s something I won’t forget or drop, is how he [Jobs] blatantly used 16 innocent teenagers identified by the RIAA as alleged ‘copyright violators’ — ‘alleged’ because they never appeared before a judge — in his infamous 2004 SuperBowl iTunes / iPod ad. http://www.p2pnet.net/story/677

“I didn’t like Apple back when, and I don’t like it now.”

I’ve alluded to the disgraceful RIAA / Apple /iTunes / Pepsi SuperBowl ad before, but this time around, I’m going to re-run the whole item, together with another which sets it up.

I wonder where Annie Leith (right) is today and what she thinks of her appearance? Does she believe it was right for Apple and Pepsi to hold her and her friends up to be falsely accused by Vivendi Universal, EMI, Warner Music and Sony Music’s RIAA as criminals in front of hundreds of millions of people in a warped iPod commercial?

The iTunes /RIAA / Pepsi advertising connection has been forgotten by most people. But the RIAA is still trotting out kids and their parents as thieves.

And it’s still getting away with it.

Meanwhile Item Number One »»»

Pepsi ads wink at music downloading

‘Wink’ at downloading? That’s the headline in a USA TODAY story pumping up Pepsi’s coming iTunes music store promo.

Some 20 teens sued by the Recording Industry Association of America, which accuses them of unauthorized downloads, will appear in a Pepsi-Cola (PEP) ad that kicks off a two-month offer of up to 100 million free – and legal -downloads from Apple’s iTunes, the leading online music seller, says the story here.

The sassy ad [no kidding - it's a direct quote] due out on February 1 during Superbowl, is a wink at the download hot button, says Theresa Howard in a piece which might have come straight from Pepsi’s promo department.

Pepsi hopes the promotion will connect its flagship cola, as well as Sierra Mist and Diet Pepsi, with teens who’ve shown more affinity for bottled water, energy drinks and the Internet, she says.

The ‘wink’ comes in because Annie Leith, 14, has been suckered into appearing in the ad with other downloaders and apparently says she no longer makes unauthorized downloads and, can say I was on TV for something so ridiculous. With her older sister and younger brother, she downloaded 950 songs over three years, says the story, going on:

They settled the lawsuit for $3,000, the average according to RIAA. She’ll use some of her undisclosed ad fee to help pay for the settlement.

‘Settled’ means they paid the RIAA $3,000 rather than getting hauled into a court hearing which might have cost them thousands of dollars more.

In the meanwhile, Green Day cut a special version of the 1966 Bobby Fuller Four hit I Fought the Law for the ad, by BBDO, New York, says USA TODAY. In the ad, Leith holds a Pepsi and proclaims: ‘We are still going to download music for free off the Internet.’ Then the announcer says how: ‘Announcing the Pepsi iTunes Giveaway’.

It’s all in good spirit, Dave Burwick, chief marketer, Pepsi, North America, is quoted as saying.

Pepsi even managed to wheel out the RIAA’s seldom-seen boss Mitch Bainwol.

This ad shows how everything has changed, Bainwol says. Legal downloading is great because fans are supporting the future of creative work in America.

How low can you go?

Ask Pepsi.

I should have added a line to this story: “The only people laughing are the people who run the RIAA.”

Item Number Two »»»

Hi, I’m one of the kids who was prosecuted for downloading music free off of the Internet, says a teenager in an ad slated to be aired during the Super Bowl tomorrow.

And I’m here to announce in front of 100 million people that we’re still going to download music free off the Internet.

She’s one of 16 naive US teenagers ‘persuaded’ to appear in the 45-second spot which was to have reprised Apple’s triumph of 1984 when, in the first Super Bowl ‘event’ ad, it launched the Mac.

However, the 2004 production will be remembered with shame.

The 16 teenagers were identified by the RIAA as alleged ‘copyright violators’ – ‘alleged’ because they never appeared before a judge. They, or their parents, settled out of court rather than risk much larger financial penalties had they gone head-to-head with the RIAA’s heavyweight legal team, and lost.

The ad has Pepsi ‘giving’ away 100 million iTunes songs as a promotion. Waving bottles of soda, the kids let everyone know that’s the kind of ‘legitimate’ music they’ll be downloading in the future.

I would like to see more of this, Jimmy Iovine, chairman of Interscope Geffen A&M, part of Universal Music Group, is quoted as saying in a National Post story here. We’re starting to see technology companies come on our side, now soft drink companies are coming on our side.

Iovine’s reference to technology companies comes from his love-in with Hewlett-Packard when he appeared onstage at an HP dog-and-pony show to support the latter’s introduction of DRM systems.

In the meanwhile, Annie Leith, 14, whose parents gave the RIAA (Recording Industry Association of America) $3,000 to avoid a civil lawsuit, is featured and she says she’ll use some of her undisclosed ad fee to help pay for that.

Michelle Maalouf is another teenager caught up in the RIAA’s stop-at-nothing sue ‘em all campaign.

It was fun being in the commercial, but being sued wasn’t so great, Michelle, 13, says in this SFGate story here. We didn’t know it was illegal. We really like music.

All of the teenagers in the spot were sued by the recording industry’s powerful trade group [the RIAA], says the report.

What’s interesting is that the SFGate story uses the word ’sued’.

More on that later.

Falsely attributing criminal conduct
It’s all in good spirit, says Dave Burwick, chief marketer, Pepsi, North America.

Josh Wattles, however, doesn’t think that adequately describes the commericial. In fact, Falsely attributing criminal conduct to someone is a slam-dunk libel in just about every state, he says.

There’s no calculus of relative harm to justify this kind of abusive, untruthful and cynical behavior towards minors no matter how complicit their misguided parents may have been in this deception.

He’s the former acting general counsel of Paramount Pictures, a key architect of the MPAA’s (Motion Picture Association of America) anti-piracy programs in the transition to videocassette distribution, and the former senior executive in charge of Viacom’s music subsidiaries, The Famous Music Publishing Companies.

It started last year when Big Music instructed the RIAA, its principal enforcer, to sue any file swapper it could identify for copyright violations. Its lawyers used ‘instant subpoenas’ obtained under the Digital Millennium Copyright Act (DMCA) to pressure ISPs into handing over subscriber names and addresses – until the Verizon decision put a stop to it.

However, before being ordered to use due process like everyone else, the RIAA had been able to track down and identify close to 1,000 p2p file swappers, mostly teenagers and students, whom they threaten with civil, not criminal, court actions. Unless they settle.

The 16 teenaged Pepsi stars were among those swept up in the RIAA’s ‘investigations’.

By the sheer volume of ink the RIAA has been able to generate in the media, it’s succeeded in making people believe anyone who downloads music, shares files, swaps music, or whatever you want to call it, is a criminal and thief.

That’s not true.

But the RIAA’s relentless, mind-numbing assertions have been sufficient to paint the picture and hence, the Pepsi/iTunes campaign could be catchily entitled I Fought the Law.

And, I was one of the kids prosecuted for downloading music, says a teenager. She was not, though, ‘prosecuted’ for anything. She’d never been in a court. She was, rather, mouthing words from a script contrived by BBDO and approved by Pepsi and Apple.

However, to make the theme stand up, the message that these kids were ex-criminals who’d been rightfully ‘prosecuted’ had to be driven home hard and therefore, Busted, Charged, Incriminated, and Accused appears over their images, and the carefully arranged lighting and their sullen looks purposefully suggest a gritty, urban, isolated feel – the kind of thing associated on TV with ‘lawbreakers’ and criminality.

To make the point even more strongly, Convicted file swappers star in Pepsi Super Bowl ad, reads a ZDNet teaser headline leading to another site.

Convicted? When? By whom? And on what criminal charge?

And in During Breaks in Game, Satire and Silliness, New York Times business writer Stuart Elliott thinkse the stand-out (his words) Super Bowl commercial was a, cheeky spot, introducing a promotion co-sponsored by the iTunes division of Apple Computer, that smartly teased the recording industry for suing teenagers for illegal file sharing.

“Sixteen of the miscreants appeared in the commercial, identified with tongue-in-cheek labels like ‘Incriminated,’ ‘Accused and ‘Busted,’ as the soundtrack played ‘I Fought the Law (and the Law Won).’ The jest was topped at the end as these words appeared on screen: ‘Drink down Pepsi and download music at iTunes. Legally’.

Smartly teased the recording industry for suing teenagers?

Questions
A number of questions go begging, however.

• Did the kids appearing in the commercials know exactly what the script would have them saying – specifically, that the word ‘prosecuted’ would be used? And did they know there’d be suggestive overlays superimposed while their images flashed up?
• Did the ‘actors’ or their parents or their guardians or lawyers see and OK the ads – and the various elements such as the overlays – in writing after they’d been edited and approved for airing by Pepsi and Apple?
• Were they given the option of backing out if they didn’t like the look of the final cut, if they indeed saw it?
• Was the agreement between BBDO and the teenagers carefully crafted and honestly written to protect them?
• Or was it a standard ‘name and likeness for a fee’ boilerplate or worse, a cold and cynical contract made by a calculating team of highly paid lawyers and account executives with 16 naive and easily impressed youngsters to insulate Pepsi, iTunes and CBS from possible libel suits filed by the teenagers after the ad was cut?

I still can’t get over the fact that these fresh faced teenagers are being attacked by companies just to preserve a business model in need of freshening up itself, says Wattles. I don’t want my kids treated that way by business and I don’t want other people’s kids treated that way.

And on the choice of language, Prosecutions are usually understood to be actions by the state to enforce criminal laws, he says. Prosecutions aren’t generally understood to mean civil lawsuits. The word ’sued’ would be appropriate and accurate in this context.

The ad falsely pumps up the music industry’s enforcement effort, and its suggestive criminalization of the kids’ behavior building up to the tag line ‘we’re still gonna download music for free off the Internet – and there’s not a thing anyone can do about it,’ reinforces the ad’s presumption that their behavior had been criminal.

What’s the problem?
But, What’s the problem? – asks a nameless, faceless RIAA spokesperson. We’re only involved as good corporate citizens. We gave Pepsi and Apple and BBDO the kids’ names to help them. The kids, that is. This is our way of working with wholesome American institutions to save the Children of America from having us prosecute them for stealing music. What can be wrong with that?

And Gosh! Pepsi is giving the music away anyhow. But this time, the kids won’t end up in a court for downloading!

‘Giving’ is probably the wrong word, though.

Actually, Pepsi is marketing the tunes on behalf of the RIAA’s owners, the major record labels, who sold the songs to Apple in the first place. People get the songs by buying Pepsi and looking under the bottle tops, some of which have a code which can be redeemed to ‘buy’ a song from iTunes.

Rich Menta, editor of MP3newswire, says here, The RIAA will earn $0.75 from Pepsi for each of the 100 million downloads. And that’s $75 million, in pure profit for the record industry, which is why RIAA president Mitch Bainwol is happy to go along with the joke, suggests Menta.

Apple wins, of course, because now they have more than quadrupled their total sales of downloads from 30 million to 130 million tunes – all using the AAC format that only the iPod will play, thus pushing iPod sales.

Is ‘get sued by the RIAA and star in a TV commercial’ the message? – Menta asks.

It’s bad enough that the RIAA targeted kids for their lawsuits but, it’s worse to criminalize their behavior on national television just for the sake of a provocation, or to sell soft drinks and iTunes downloads, Wattles told p2pnet.

Moreover, he goes on, Congress, in making the copyright laws, never, to my knowledge, considered the circumstance that kids would be engaged in mass infringements, however technical. Certainly, imposing extraordinarily high statutory civil damages on an ill-behaved and/or ill-informed teenager seems out of step with the result a legislature would have openly picked.

And there’s a big legal question mark over whether or not they can be tried as juveniles for criminal copyright infringement.

Wattles – who was at Berkeley in 1969 – points out that he’s speaking as an individual concerned over the excessive and intrusive behavior of an industry to which he’s contributed, and in which he still has a stake.

I don’t want to see it [the entertainment industry] behave in this way and I believe I’m speaking out responsibly to help it correct itself, he says.

No matter how old they are and even if their parents or a court signed off for them, they could possibly sustain an action for libel if they weren’t completely aware of what this ad was going to look like and suggest about them.

These kids weren’t criminally prosecuted, but they’ll get to live with this characterization for the rest of their lives – even after they grow up and move away from their childish false bravura performances.

Stay iTuned?

Jon Newton - p2pnet

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

July, 2009

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This entry was posted on Sunday, July 5th, 2009 at 11:48 am and is filed under Advertising, Kids and Kartels, P2P. 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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