For the last time… Copyright infringement is not theft!

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RIAA is Full of Bunk, So is New York Times

By Bill Glahn

On September 12, 2003, the New York Times defended the Recording Industry Association of America’s recent lawsuits against P2P music file-sharers [Suing Music Downloaders]. The editorial was based on a number of flawed concepts, which just goes to show that if the RIAA states something loudly enough and often enough, even the New York Times will accept it as fact. I thought the New York Times was trying to do a little more fact checking these days before printing stories out of school.

Although many important ideological arguments have been made regarding the morality or immorality of file-sharing, I will limit my points here strictly to the confines of the capitalistic system that we exist in and established legal principals. The New York Times calls suing file-sharers the RIAA’s best legal strategy. The problem is this strategy doesn’t even hold up in those arenas.

The first and most alarming position that has been propagated by the RIAA and apparently accepted by the New York Times is the one that “stealing is stealing, online or in a store.” In fact, and in law, this is clearly not as black & white as the music industry would like us to believe.

The notion of copyright infringement as theft was clearly addressed in the 1985 Supreme Court decision of Dowling v. United States. While this case involved hard goods (phonograph records), Justice Harry Blackmun was most certainly speaking of abstract property (copyrights) when he wrote these words in his majority decision overturning Dowling’s conviction of interstate transport of stolen property: “(copyright infringement) does not easily equate with theft, conversion, or fraud… The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over copyright; nor does he wholly deprive its owner of its use.”

This decision was based on established law with a long appellate history. The Digital Millennium Copyright Act, under which the RIAA gets its policing powers, is not and is largely untested in the courts. Paul Dowling was convicted of copyright infringement (a misdemeanor at the time) but was vindicated on the more serious crime of theft.

This brings us to the point of whether or not file-sharers meet the criteria of “fair use” or are indeed guilty of copyright infringement. This is less clear. Let’s assume that they don’t meet the confines of the fair use doctrine. Is it the RIAA’s lawful right to sue them or does that right belong to someone else? File-sharers have not entered into a contract with artists and do not collect fees for the songs that are up-loaded from their computers. Therefore, they are not stealing anything. Infringing perhaps. But not stealing. But does the RIAA have the right to speak for the artist if such an offense has occurred? As Fred Wilhelms pointed out in the September 6 RIAA Watch column, there are some serious questions about the artists’ contracts with their labels and whether they include digital rights. And also about how the payments are to be made to the artists. The major labels are collecting fees from for-pay download sites such as iTunes and also through lawsuit settlements against file-sharers. RIAA Watch has already pointed out how the industry may be pocketing money that isn’t theirs. Now Cary Sherman, president of the RIAA, has stated that none of the lawsuit money will be passed on to the artists either.

These comments beg the question, “Who is really doing the stealing here?” Artist’s incomes are tangible. Copyrights are not. I’d call pocketing income that has already been collected as stealing.

P2p is of poor quality, it isn’t top notch. Nor are the formats being sold on line of top notch either. They are wanting to charge the same thing for substandard product. (Incidently it don’t care for the product but that is neither here nor there.) In order to compete and yes it can be done, there must be a reason that is worth the money to encourage folks to pay. The low quality of p2p allows a large area for doing so. The present attitude of the cartels isn’t to improve the product but rather to lock it up. I have no issue with that lockup. They can put it in a sealed vault for all I care. I will NOT PAY for locked up content at low fare with no ablility to do with it what I wish, be that cassette tape or cd to play in the car. I WILL NOT buy some extra equipment to satisfy the cartels wish to play locked up content. My present player works just fine. In fact there have already been cases against the cartel for these locked up schemes that prevent the player from actually playing the legally purchased cds sold. If that isn’t enough, Sony has told several of the other cartel members they may not display the cd emblem on the case of these damaged cds as they do not meet the redbook standards. In fact, if you wish to play them on your computer it stands a very good likelyhood of damaging the player.

Movies? The same way. New lock up schemes carry codes for revocation of the player. Meaning if your player number is on the list, you put in one of these dvds, your player will cease to function. They didn’t buy the player. The player is of far more value than the disc. I will NOT purchase, NOR will I particpate in this sort of forced consumerism that thinks it is ok to damage equipment that doesn’t belong to them.

NOR do I agree with these EULAs that are so much trash. Making claims that for the most part aren’t enforcable.

I would rather see the music cartels doors, locked, shuttered, and burned to the ground in hopes that the rebirth might have some sort of thought for the customer as a customer rather than a consumer.

Now that would change my behavior!!!

Keep up the objectivity Releagate the mission.

Uhhuh? A mind-share factor… what does that actually MEAN (apart from being another corporate buzzword)?

How dare they foist their fees on college students at penn state.