The Recording Industry Association of America (RIAA) sued four students separately last month for running services that searched computers connected to their college networks for MP3 song files. It may not be headline news material, but to me this is as scary as any other infringment on freedom of the individual. ZDNet reports that the students have agreed to pay around £10,000 each to settle online music piracy charges from the recording industry.
The service that one of the students run at Princeton university was more like Google than Napster, since it had simply searched computers that were hooked up to the campus network, whether or not they contained his software. The students also shared copyrighted music from their own machines. This case is important in that it is the first time the RIAA directly sued individuals, as opposed to companies, associated with what is called peer-to-peer piracy.
The settlement was reached without defendants admitting guilt. Each of them will be paying RIAA an amount totalling between $12,000 and $17,000 (£7,456 and £10,563), split into annual instalments between 2003 and 2006. The lawsuits as filed could have entailed damages (in theory) of up to $100m.
Matt Oppenheim, RIAA senior vice president issued a statement:
We believe it’s in everyone’s best interest to come to a quick resolution, and that these four defendants now clearly understand the seriousness with which we view this type of illegal behaviour. We have also sent a clear signal to others that this kind of activity is illegal.
According to the RIAA said that any future similar enforcement actions could lead to “stiffer settlement obligations”.
Now, I am not against copyright and intellectual property rights. I am, however, against a large entity using desperate measures to halt its falling profit margins. The music industry sales are falling not because people are copying music they ‘should be paying for’ but because the industry’s business models are no longer viable. For the RIAA to sue companies or individuals is like for an elephant to swat a few flies in the swarm. It can and will obliterate the few it hits but it can’t squash them all…
[sarcasm]
I’m off to put a brick through the window of Marks & Spencers and get me some “free” stuff. If they prosecute me I will complain that they are a large entity using desperate measures to halt it’s falling profit margins because their business model is no longer viable. If they didn’t want to get robbed they should have used stronger windows.
I heard last week they were prosecuting this guy who was pointing out the shops with weak windows, isn’t that riduculous!?
[/sarcasm]
I think the point I am trying to make here is that if you don’t do the crime you won’t pay the fine.
Della:
I think the point I am trying to make here is that if you don’t do the crime you won’t pay the fine.
How is the ‘crime’ defined and by whom? Show me the RIAA ‘shop window’ and the ‘brick’? The RIAA is not a shop, it’s an association defending the interests of a large industry that is loosing the battle with its markets. M&S do not need to fear an attack, given the quality of their goods and given that I can get what they sell somewhere else and better.
Btw, sarcasm is no substitute for making a credible argument against P2P music sharing. The fact remains, record industry business model don’t work no more and suing those whose demand for music is not satisfied thanks to the RIAA tinkering with free markets, is not going to solve anything.
The old business model is rotting away and no desperate rear guard actions by Megacorporate Musicland are going to change that. Time, and technology, marches on.
Also business which regards their customers as the enemy is a wonderful business to find a way to go short on their shares.
Theft of physical goods is wrong because you deprive the person you stole them from of their use. Taking the physical goods away from one person and giving it to another is a zero sum issue in terms of the utility of the goods. Only one person can gain the benefits (whatever they are) of having it.
Copying a piece of music over the internet in itself deprives nobody else of that music. You can argue that it deprives the copyright holder of the money he would have received if you had bought a CD, but there is no guarantee that you would have. In the short term, allowing unrestricted copying increases utility, because if I make a copy, two people are capable of gaining the benefits (whatever they are) of having access to the intellectual property instead of one. On the other hand, if nobody pays for the use of the song (or other intellectual property), the creator does not get compensated and there is less incentive for him to create in the future and utility may be reduced in the long term. (On the other hand, there can be network effects and derivative works created by other people, meaning that spreading the work as widely as possible can sometimes increase utility in the long term too). Copyright law should be about striking a delicate balance between the benefits to the users of the intellectual property and the ability of the creators to gain income from it, so as to maximise total utility in the long term. It shouldn’t be about the short term interests of either the producer or the consumer. I think that the people who write copyright laws (driven by the lawyers of the entertainment industry) have completely lost sight of this in recent years, and the balance has been got completely wrong under current law. (Recent laws have been more about protecting obsolete business models from new technology. The music and movie businesses have a history of decrying new technology, doing everything to attempt to get it banned, and then making lots of money from it when they fail to do this). I am here sympathetic to the students because I think they are being prosecuted under an extremely bad law.
Making an analogy between copyright violations and the theft of physical goods is not especially useful, because they are quite different things. Violation of copyright law in many cases is wrong, but it isn’t the same thing. Theft of physical goods is clearly wrong, and this is morally very simple, and how you legislate is very simple. Passing a law that addresses the rights of producers and consumers of intellectual property fairly is much much hard, because you are dealing with a much more difficult question.
Saying, “just obey the law, whatever it is”, is not always a terribly useful thing to say, either. People tend to disobey laws that make no logical sense or that are obviously ridiculous. Some modern copyright laws come close to this line (or overstep it).
(Gabriel, I don’t presently have your e-mail address, and last week you asked me send you an e-mail about something. Could you reply to this? Thanks).
Dear Gabriel
A little bird who should know told me…..
P2P file sharing will be erradicated by Christmas except by direct connection between two computers over a closed system like ICQ or MSN.
Gnuttella, Morpheus, Kazzaa etc will be largely irrelevant when they don’t work anymore which pretty much follows your argument about record, game and movie companies and other copyright holders but in reverse…… In those circumstances do you maintain the same posture?
I agree that record and publishing companies have not re-invented themselves to embrace the new technology and have indeed paid a terrible price for their indolence. The reason for this has been the bloated andself serving nature of those in charge of these institutons.
Nowadays record companies have slimmed down by probably 30% of their costs compared to three or four years ago. No doubt they will grow again as soon as this new technological solution kicks in.
Interestingly, the fallout from this new technology will not just affect the consumer. Another casualty will be the broadband suppliers whose business model is based on spam & P2P. With 40-70% less internet traffic can you imagine the net effect? (Excuse the pun).
Advertising, content and broadband models etc will collapse leading to another dot com bubble burst.
Couple these changes to he rise of the mobile phone and PDA as the “must have” recipient of content / applications we are heading for some VERY uncharted territory.
What do you think of that then?
All the best
Simon Austin
Falling profit margins probably have a lot to do with the garbage portrayed as music on offer of late.
Sales of singles are well down from even the eighties and early ninties, in those days a single would consist of two and sometimes three different songs.
Now a single is two versions of the same tune, poor product and poor value, but then the music industry has always treated its customers with considerable disdain.
I tend to buy virtually all my music off the web, direct from the artist themselves in a lot of cases.
Whats the answer? Better music at lower prices, the sooner the better!
Falling profit margins probably have a lot to do with the garbage portrayed as music on offer of late.
Sales of singles are well down from even the eighties and early ninties, in those days a single would consist of two and sometimes three different songs.
Now a single is two versions of the same tune, poor product and poor value, but then the music industry has always treated its customers with considerable disdain.
I tend to buy virtually all my music off the web, direct from the artist themselves in a lot of cases.
Whats the answer? Better music at lower prices, the sooner the better!
Falling profit margins probably have a lot to do with the garbage portrayed as music on offer of late.
Sales of singles are well down from even the eighties and early ninties, in those days a single would consist of two and sometimes three different songs.
Now a single is two versions of the same tune, poor product and poor value, but then the music industry has always treated its customers with considerable disdain.
I tend to buy virtually all my music off the web, direct from the artist themselves in a lot of cases.
Whats the answer? Better music at lower prices, the sooner the better!
I apologise for the triple entry….I used to be a bookeeper 🙂
This is just another example of copyright holders going too far, but expect more of these so called infringements leading to simualr cases.
Uk judges are even agreeing that the current tip of balance in favour of the right holders needs to be halted. (Laddie J) in an article in the European Intellectual property Review 1996.
Hey, I remember you and your little bird, Simon Austin. When I first began reading this blog, you posted much the same speculation. And I still can’t see any technology coming along that’s going to revolutionize internet traffic so completely in the next seven months…without a peep of it reaching, say, Slashdot by now.
Dear Mr Weasel
Tempus fugit mon ami
You would not believe the red tape, confusion and suspicion by content holders in getting something like that running.
Best
Simon
You are right, Mr Austin. I do not believe.
Gabriel,
The brick is a tool used to illigitimatly distribute property, so in this case the closest analogy is the MP3 finding tool. The shop window is where they put their goods on display, so in this case that is the clear bit on the surface of the compact disk.
It is a large industry that is losing its market because so much theft of thier product is occuring.
You can listen to products produced by recording artists on the radio or on music video channels, you get to listen for free, and the record companies get paid by the radio stations and tv channels.
A free market doesn’t mean that things have to be given away for nothing. A free market does not mean that people can’t enforce property rights. In this case the right to the property was aquired on creation of the property.
There was a lot of looting going on in Iraq lately, property rights have been quite difficult to enforce, does that mean they don’t exist?
Simon Austin asks:
“What do you think of that then?”
Seeing as you asked, I think it’s some of the wildest speculation I have read in a while.
You don’t work in the entertainment industry, do you? It sounds awfully like whistling in the dark to me.
It’s distressing that libertarians, of all people, are so willing to denigrate property rights when the issue of music comes along.
This is not a complex issue. If I record a song, I own it for the length of the copyright. If you want to own a copy, you have to buy it. This is not some sort of corporate conspiracy, this is bedrock copyright law with roots going back hundreds of years.
Now, a lot of you seem to have various beefs with the recording industry. “Their prices are too high”, “the music is no good”, “their business model is stupid”, “they could make more money if they embraced P2P.” Any or all of those statements may be true. ALL of them are irrelevant. It’s their property. If you copy it without paying them for it, you’re stealing. It doesn’t matter if their price is unreasonable. It doesn’t matter if you, in your infinite wisdom, think the industry would be better off if they permitted free copying (by the way, that’s an asinine view, economically, but it wouldn’t matter even if it WAS correct). Intellectual property IS property. The holders of copyrights either worked to produce the work themselves, or paid someone else for ownership of the work. They have the right to control how it is distributed — even if you think it’s foolish. If you take without paying, that’s stealing. It’s illegal AND immoral.
Some have objected to the Marks & Spencer analogy. Those objections are not well taken, in my view, but let me propose another. Do you feel that people should be permitted to sneak into movies without paying? What if the show isn’t sold out? What if you don’t buy a ticket, but do buy popcorn & a soda (which is the source of virtually all of the THEATER’s revenue)? If you think that conduct is wrong, then how is illegal file swapping different?
I also think that it is dead wrong to object to this case because the RIAA is going after individual downloaders. When RIAA and others went after Napster or Kazaa or whomever, the same people objected because “Napster isn’t responsible if people use the service to break the law.” Indeed, that’s exactly what a U.S. federal judge recently found, to the cheers of music piracy defenders. Personally, I think that’s a closer issue. The people who are actually stealing the songs, however, present no such difficulties. They ARE the ones who are unambiguously, and in most cases KNOWINGLY violating the law. Kudos to the RIAA for going after the people who are truly responsible. It is undoubtedly true that RIAA will never be able to get everyone. That’s hardly an argument, though, for getting as many as they can, and increasing the risk for those who blatently, deliberately steal music.
Michael,
The concept of property was not created by humans for utilitarian reasons, so arguments from a utilitarian standpoint are misleading and wrong. Property existed before humans, before life even emerged from the ocean. Creatures have for millions of years had things and places that were theirs, property is a fact of life, a force in nature, it is not an invented concept.
You make the argument that the distribution of goods is a zero sum game in terms of utility, a classic socialist argument if ever I heard one. Property is not a zero sum game, it can be created, it can be destroyed, it can grow. Take for example food. Most people eat significantly more food than they need to live and be healthy, quite a lot of the nutrition in food goes straight through you without being absorbed, and therefore it is not really used. So using your utilitarian argument, if ever I was to find you at a restaurant I could walk off with half your meal, because you only need half the meal to survive and be healthy, and all you are going to do with the other half is flush it down the toilet.
A lot of goods share this property of divisiblity of utility, including recorded music.
I am unsympathetic to those thieves with their Ché Gavara beards and “property is theft” attitudes. They were a party in the theft of an amount of property that is no doubt far larger than their fines.
Their morphology is very different, just as a light bulb is different from a mountain, that doesn’t mean that a light bulb, a mountain, or a song cannot be property.
Spoons: If you accept that the fact that you have created a song or an idea gives you the absolute right to decide subsequently (or for the term of the copyright) how it is used and how much is charged for its use, then everything else you say follows. I will even concede this is a valid point of view. If you hold it, there is not much more that you and I can argue about, because we are simply basing our points of view on entirely different base assumptions.
However, when you say “this is bedrock copyright law with roots going back hundreds of years” you are dead wrong. Copyright law has never been based upon this idea, at least not until the RIAA and MPAA have started pretending over the last few years that it has. Copyright law has traditionally given copyright holders a certain set of (traditionally fairly limited) exclusive rights for a finite time, and has reserved very considerable rights for the public. (Some of these acknowledge that no artistic work is ever the creation of one person, but that every artistic work is in fact one derivative work built on another, too, a position that the RIAA and MPAA tends to resist).
(I dislike the ideas “intellectual property” and “intellectual property theft”, because quite frankly, the things that are covered by intellectual property law are not the same as traditional property, and violating copyright law is not the same as theft, as traditionally defined. That is not to say that these type of laws should not exist – they should – or that violation of them should not be against the law. However, it annoys me to see language used to deliberately muddy the issue. The fact is that the balance of rights between the copyright owner and the consumer is seriously askew, because one of those groups has the ear of legislators and the other doesn’t.
The Grateful Dead made a lot of money while giving their music away and encouraging copying.
So here we have the hippie proto-communists beating the capitalists.
The RIAA is absolutely right from a legal standpoint.
From a customer friendly standpoint they are totally wrong.
Della:
Okay, I used the expression “zero sum”. Therefore I am a socialist. Therefore, because I am a socialist my arguments are not worth listening to. Forgive me if I am not impressed by that argument. (Sure, an item of property is of more value to some people than others. And also, if theft is common then clearly property is of less value to anyone than it would be if theft is not common, which is why secure property rights are a good thing).
As for a utilitarian point of view: copyright law has always been constructed using utilitarian arguments. Copyright law didn’t exist until a few centuries ago, and as far as I can tell relatively few people thought it should. Utilitarian arguments were used to justify its creation in the first place. To quite the US constitution, copyright and patent law exists “to promote the progress of science and useful arts”, not because there is some fundamental right of natural justice at stake. This is a utilitarian argument if I have ever heard one. The great con the RIAA and MPAA has managed to convince congress of in recent years is that the natural justice argument is the status quo. And it really isn’t. (The natural justice argument is also tremendous if you wish to convince yourself that you are morally righteous and your opponents are morally reprehensible. But that isn’t a way to have a reasoned argument. And a reasoned argument about what intellectual property rights are appropriate given the new technology that we have is something we really need).
A Point that a few of you have ommited from your arguments.
Copyright subsists in the actual recordings (the master recordings) A song may be legally “covered” (re-recorded) by anyone after it has been recorded and released, thereby creating a new copyright in the new master recording. This holds true as long as no part of the original master is used in the new “cover”. Re-mixes generally sample from the original recording masters mixed in with new stuff.
The “intelectual property” of a song exists inthe publishing rights….. IE the descant melody line and lyrics of the song. Publishing royalties are payable to the songwriter by way of:-
a) Mechanicals ( numbers of cds or records pressed)
b) PRS (Performing rights society)
c) Sheet music (self explanatory)
d) PPL (Public performance) radio etc
e) Synchronisation (song used in flim or TV)
It is the record company that generally holds the copyrights unless the song has been licensed to them for a set period or within a certain territory. The record company then pays the artist a royalty on actual sales.
The publishing company collects the monies due in regards to the songwriting (IPR)
I just thought that it may be worth while making the distinction for the uninitiated!
Best
Simon Austin
Michael,
Forgive me if you feel I don’t feel I paid attention to your argument. I was of the opinion that I tore it apart by going back to the basic principles of property, I then went on to carefully explain to you the ridiculous consequences of stretching your argument a little further than you intended.
Copyright didn’t exist as such because of the practical problems of copying works, it wasn’t until the late 15th century of the printing press that copying became easy enough for the issue to be a problem, however the issue had arisen before:
The scholars of Ancient Greece and the Roman Empire were the first to be concerned about being recognised as the authors of their works
This is not true, before the existance of a copyright act disputes over the right to the publish books could be enforced by common law, it seems it was recognised as being just another kind of property.
The original introduction of a copyright act was done to reduce piracy, get free copies of books, limit the length of time of the already recognised right to copy, and to sieze books suspected of containing matters hostile to the Church or Government.
“Copyright law has traditionally given copyright holders a certain set of (traditionally fairly limited) exclusive rights for a finite time, and has reserved very considerable rights for the public.”
This is true as far as it goes, but it does not address the fact that file-sharing of music that is copyrighted and not yet in the public domain is a violation of the copyright and, therefore, theft.
I would be very curious to hear someone explicate a version of copyright law that allows the free and unlimited distribution of the intellectual property at issue (which is what file-sharing amounts to), while still preserving some ownership rights and the concomitant incentives for the producer and whoever they have contracted with.
Keep in mind that what is true for music is also true for software, books, magazines, etc., all of which are subject to unlimited digital distribution. I don’t think that saying “well, the Grateful Dead made a lot of money after essentially waiving their copyright” will do the job, as I don’t think that software, books, magazines, etc. will prosper on the basis of a devoted following of drug-addled fans shelling out for dozens of concert tickets a year.
I fully respect the right of copyright holders to defend the integrity of their rights over intellectual property, however – I think the debate so far in this comments section has been off-topic.
The students who the RIAA targeted did not infringe copyrights held by the RIAA or any of its members. The students who are now being made to pay ridiculous amounts of money as “compensation” did not steal anything! These students created file-sharing software which has many legitimate (and illegitimate) uses in university environments. One of the key legitimate uses for software that scans a local area network for Windows shares and catalogues the files available on that network is the free sharing of information which I think is very important in universities (provided rights are respected and the information being shared is being distributed with the permission of the author).
Supporting the RIAA in their attack on these students is analogous to arguing that the relatives of people who have been unjustly shot dead should gather together (RIAA-style) and take gun-manufacturers to court because the guns they made were used to kill innocent citizens. Yes, guns have legitimate uses – like network file-sharing software – but the band of relatives (or RIAA) would pretend, for the sake of winning their case, that guns can only ever be used to harm innocent people and take life unfairly – and that by simply making guns the gun-manufacturers were positively encouraging people to use them to go on killing sprees.
The definitive shortcoming of the American legal system… loser doesn’t have to pay so you get greenmail…
Legislation by legal intimidation…. very ugly…
It’s documented that File sharing of the ‘crippleware’ mp3 compressed versions of songs peaked interest and drove CD sales up… the elimination of Napster not only cloned copy-cats but damaged CD sales…
The RIAA is mean… and stupid…
The reality is that with DVD’s costing under $20 US consumers are figuring out that the ‘bimbo’ of the week singing with canned casio backup isn’t worth $16.99 for a CD on which you might like one track…
Michael wrote:
Sorry, Michael, but you are the one who is dead wrong, here. Someone else has already quoted the U.S. Constitutional provision regarding copyright law, so I need not belabor the point.
At bottom, though, you’re are right when you say that there’s really little basis for argument. If you don’t believe in intellectual property, then there’s not much basis for going forward. Of course, it’s hard to imagine that J.K. Rowling would keep writing Harry Potter books if the first person in line to buy one then digitally copied it and put it online. I might also make a tidy profit by obtaining a print of the next Matrix movie, and then renting out a local auditorium to see it. I could charge five bucks a head, and without having to pay the studio, I’d make a fortune. Of course, I probably wouldn’t count on them making too many more of those movies, then.
I guess, though, that most of my arguments aren’t directed at you, since you appear to believe that “All intellectual property is theft.” I do object to those other folks — non-communists — who construct ludicrous and intellectually dishonest justifications for their their theft.
Can we please differentiate between passing-off and copying some music to listen to oneself?
And how many times do the artists want paying for the same thing? I pay for a lot of songs on the radio via my tv license, again on commercial radio by buying the sponsors products and again on a tv commercial.
Who wll be the first to make a napster that ‘remixes’ incoming music on the individual users machine? That way everyone becomes a talented precious artist whose music is protected.
Some fragmented thoughts follow…
How do ‘they’ plan to kill off P2P file sharing? I don’t think it’s technically feasible.
I’m a graduate student in electrical and computer engineering. My latest research is in (distributed and self-organizing systems for…) knowledge management, and there are along these lines many legitimate uses for P2P.
Copyright law is a Good Thing ™…and ironically (for Americans) it is one of the *few* powers enumerated to congress in our Constitution. However, the latest legislation is going well beyond the intent of copyright to the point of creating long lasting monopolies on ideas. (Consider for instance the new class of “business method” patents that are so broad as to be absurd.) Copyright needs to be reigned in so as to restore the balance mentioned so often in previous comments.
As for the RIAA suing the individuals…if indeed they did violate copyright law, and not some trumped up “consequences'” of it, then they should be held liable in a civil court. I am all for the free-market, but the RIAA is more-or-less a lobby group which is definitely not an agency promoting free markets.
My 7 cents.
Passing off, i.e. selling goods as if they were the original thing is a combination of stealing from the copyright owner and defrauding a customer. Creating copies of pirated work is just stealing.
The song the artist created is either their property or property of someone that bought it off them. Just as with other property they should be able to do pretty much what they want with it, including charging people money to have a listen. If you want to listen to a song a lot, buy a CD and then you can listen to it till your ears bleed at no additional cost.
The budget of Radio 1 is 38 million pounds, if Radio 1 played 5 minute songs every 5 minutes for a year they would play 105120 songs. If they spent all their budget paying the record companies for these songs that would be £361.49 per play. If a million people were listening at any particular time then the cost per listener per play is £0.0003 per play.
Is a third of a tenth of a penny a lot of money for you? You must be very poor!
The actual money sent to the record companies is a lot lower than that because they have a lot of overheads. I thought I might also mention that the BBC is evil.
What the computer would be doing was mixing up a bunch of copyrighted music to create something derivitive and slightly different. This doesn’t change the fact that the copyright owners still own the copyrights of their respective bits. If the computer was to create something really new from scratch then the situation would be different, but I don’t anticipate that computers will create entirely new music that people want to listen to any time soon.
A few final comments:
Still waiting for a proposal that allows the free and unlimited distribution of the intellectual property at issue (which is what file-sharing amounts to), while still preserving some ownership rights and the concomitant incentives for the producer.
I agree that the recent extension of copyright is an abomination. This does not mean that all copyrights are an abomination, only that I don’t think copyright should extend in perpetuity.
I agree that the file-sharing systems are not per se illegal as they have legitimate uses, and I think the RIAA are idiots for going about enforcement the way they have. That doesn’t change the fact that file-sharing copyrighted works without paying the royalty is theft.
Business exists to make customers happy.
Those that don’t have trouble staying in business. No matter what the law.
Live free or die.
Copyright is not property, copyright is government monopoly. Copyright is also unnecessary: sticky contracts can emulate all of its features.
If you bought the CD it’s yours to with as you please, unless you actually signed a contract to the contrary. Only matter is property.
Businesses exist to make money for thier owners, not to make customers happy. That’s often a side benefit for all concerned, but a business can still make a lot of people happy and fail miserably. It can also annoy a lot of people and succeed wildly (Microsoft, for example).