‘Amnesty’ for Music File Sharing Is a Sham [pdf]

Rather than trying to sue Americans into submission, imagine a real solution for the problem. What if the labels legitimized music swapping by offering a real amnesty for all file-sharing, past, present and future, in exchange for say, $5 a month from each person who steps forward?

The average American household spends less than $100 on prerecorded music annually. Assuming that many people will continue buying at least some CDs (a recent survey by Forrester Research found that half of all file-sharers continue to buy as many or more CDs as they did before catching the downloading bug), $60 per year for file sharing seems reasonable.

And such a plan would surely be more popular than the use-restricted and limited-inventory “authorized” alternatives. After all, the explosive growth of file-sharing is the strongest demand signal the record business has ever seen. The industry should embrace the opportunity instead of continuing to thrash around like dinosaurs sinking in hot tar.

[...] It’s easy to predict the industry’s excuses: “We don’t have all the rights.” “Antitrust law prevents us from acting together.” “What about my cut of the CD?”

Puh-leeze. You tell us your industry’s on the brink of extinction: It’s time to do something daring, not suicidal.

From InfoWorld: Torvalds to SCO: Negotiate what?

In a letter dated Tuesday, the maintainer of the Linux kernel dismissed an offer from SCO Chief Executive Officer Darl McBride to negotiate the dispute with the open-source community. “There doesn’t seem to be anything to negotiate about. SCO has yet to show any infringing IP (intellectual property) in the open-source domain,” Torvalds wrote.

[...] Torvalds’ letter says:

Open letter to Darl McBride — please grow up.

Dear Darl,

Thank you so much for your letter.

We are happy that you agree that customers need to know that Open Source is legal and stable, and we heartily agree with that sentence of your letter. The others don’t seem to make as much sense, but we find the dialogue refreshing.

However, we have to sadly decline taking business model advice from a company that seems to have squandered all its money (that it made off a Linux IPO, I might add, since there’s a nice bit of irony there), and now seems to play the US legal system as a lottery. We in the Open Source group continue to believe in technology as a way of driving customer interest and demand.

Also, we find your references to a negotiating table somewhat confusing, since there doesn’t seem to be anything to negotiate about. SCO has yet to show any infringing IP in the Open Source domain, but we wait with bated breath for when you will actually care to inform us about what you are blathering about.

All of our source code is out in the open, and we welcome you point to any particular piece you might disagree with.

Until then, please accept our gratitude for your submission,

Yours truly,

Linus Torvalds

• MIT to comply with RIAA copyright subpoena

  Chancellor Philip L. Clay and Professor James D. Bruce, vice president for information systems, issued the following statement:

  “While MIT will be aggressive in protecting student privacy based on our values and the law, we would also remind members of the community that violations of copyrights are unlawful. MIT cannot protect students from legal redress that copyright owners have and insist on using.

  “The file-sharing issue is the latest in a set of issues where law, technology and culture clash. Students are least prepared, based on experience, to move through this thicket. As an educational institution, we have a special obligation to help students understand this clash and to work with all parties to explore lawful means to take advantage of the new technologies.”

• MIT explores options for legal downloads

  The services under consideration generally fall into two categories.

  The first is a subscription-based “streaming” model that provides access to a library of music for a monthly fee. The advantage of this type of service is that it allows users to listen to a larger selection of music than they would be able to buy themselves. The main disadvantage is that a user must be connected to a network to listen.

  The other type of service is the pay-per-download model popularized by Apple’s iTunes Music Store. Users of this type of service get rights similar to those of CD purchasers: they may burn CDs, play the music on several computers even if they aren’t network-connected and put the files on portable digital music players. The profit margins in this type of business are small, making it unlikely that MIT could negotiate much of a discount on the roughly $1 per song download fee, Bruce said. MIT might undertake such negotiations if student interest ran high enough.

The Register on the Judiciary committee’s P2P and Porn hearing: Music lobby frightens Congress with P2P kiddie-porn nightmares

And of course it always was the topic. It’s clear from [the RIAA's Cary] Sherman’s tirade that the day’s exercise was purely an attack against P2P technology for its presumed negative effects on the music cartel’s profits, not on children. The specter of child rape may have hung over the proceedings like a revolting stench, but it was nothing more than an atmospheric effect. If Sherman has the slightest concern for the welfare of children, he certainly knows how to hide it.

Murky laws make piracy suits less likely in Canada than U.S.

Canadian copyright law is not identical to that in the United States, but lawyers say at least some downloading activity in Canada is clearly illegal, and could draw lawsuits if the industry sees fit.

What makes the situation murky is that much of Canadian copyright law was written before music file sharing exploded, and interpreting how the Copyright Act applies to computer-based activities isn’t crystal clear.

[...] One reason the Canadian record industry hasn’t taken legal action against individuals who share files is that it is harder to identify them here than in the United States, said Ottawa lawyer Michael Geist.

New U.S. laws let copyright holders subpoena Internet service providers to identify file sharers. That club is not available in Canada, so it is “far costlier and much slower to [take action] on a case-by-case basis,” Mr. Geist said.

Beyond that, the main legal debate in Canada is over whether downloading music falls under a section of the Copyright Act put in place in 1997 to allow people to make copies of music they already own, for their own use.

That section was added to let people make taped copies of their own records or CDs.

To balance out this activity, the government levied a surcharge on blank tapes and CDs, and the money is distributed to artists, publishers and record companies.

But it is not absolutely clear from the way the law is written whether the music that falls under that rule must have been paid for, said one record industry lawyer. “The language is so broadly written that who knows?” he said. “Everyone has a different interpretation of what’s allowed.”

Linux war of words escalates

Open-source software leaders Eric Raymond and Bruce Perens fired back at the SCO Group, disputing the company’s latest swipe at Linux and the open-source development method.

In an open letter posted late Tuesday on Raymond’s Web site, the author and developer reacted pointedly to recent claims by SCO CEO Darl McBride, particularly allegations that Raymond concealed the identity of hackers responsible for recent denial-of-service (DoS) attacks against SCO.

Slashdot discussion: Back To SCO

Apple customer resells iTunes song

A customer of Apple Computer’s iTunes Music Store said he has successfully resold a he song purchased through the service, ending a weeklong exercise he hoped would highlight the legal and technical nuances of emerging digital music services.

George Hotelling, a Web developer in Ann Arbor, Mich., on Tuesday reported the details of the transfer on his Web log. {ed. not: give it a read, it’s worth the time]

In an interview Wednesday, Hotelling said he was able to give the song to a friend, Keith Elder, a Web developer in Ypsilanti, Mich., whom he met through an Internet discussion group. In order to close the deal, Hotelling said he had to transfer control of his entire iTunes Music Store account to Elder. He said he intends to demand 50 cents from Elder for the account, which included one song, the Devin Vasquez remake of Frankie Smith’s song “Double Dutch Bus,” which he’d originally purchased for 99 cents.

“For the average user, I’d definitely say this was extremely difficult,” he said. “I guess you could say we’re both extreme geeks.”

An Apple representative said the company would meet Wednesday to discuss its iTunes Music Store resale policy and that she expected to make a statement later in the day.

P2P group: We’ll pay girl’s RIAA payment

P2P United, a peer-to-peer industry trade group that includes Grokster, StreamCast Networks, Limewire and other file-trading software companies, said Wednesday it had offered to reimburse Brianna Lahara and her mother’s payment to the Recording Industry Association of America. Lahara’s mother agreed Tuesday to settle copyright infringement charges on behalf of her daughter.

“We do not condone copyright infringement, but someone has to draw the line to call attention to a system that permits multinational corporations with phenomenal financial and political resources to strong-arm 12-year-olds and their families in public housing the way this sorry episode dramatizes,” Adam Eisgrau, the executive director of P2P United, said.

Followup to this post, we have What The RIAA Gets Out Of File Sharing

On particularly poignant posting:

You guys clearly need retraining. (Score:5, Funny)

by DwarfGoanna (447841) on Wednesday September 10, @12:08PM (#6922153)

When the RIAA uses download statistics, it is only in our best interests as consumers. They are taking the lemons of corrupt human nature, and making sweet corporate lemonade. I, for one, am thankful that such a down home mom and pop operation such as the RIAA, in their infinite wisdom, makes something good, noble, and legal come out of all this theft, piracy, and debauchery. I can’t wait for the day that all my activities are monitored for legality by four letter acronyms.

Anyone who disagrees is clearly a criminal/pirate/terrorist! Mend your ways and submit to RIAA amnesty!=)

Of this Good Morning Silicon Valley column from yesterday: Music industry to recoup alleged file-sharing losses one 12-year-old at a time

The first rule of life is also the first rule of business: Adapt or die. And if you choose the latter, be sure to sue your customers first…Today, many are looking askance at the RIAA’s latest action. Some say the recording industry itself is to blame for the sharp decline in CD sales (see “Decline in CD sales apparently unrelated to proliferation of lousy music“). Others believe there are better ways to solve the peer-to-peer dilemma than alienating customers. “They’re resorting to these kind of bullying tactics where they’re suing individuals, families, threatening them with bankruptcy, and trying to intimidate them into coming back and being customers,” EFF staff attorney Jason Schultz told Tech TV. “The real question will be: Are they serious about continuing to wage this war? I think this first effort will shock some people, but I don’t think it’ll stick unless they’re willing to keep it up over the long haul…It’s kind of a false trade in some ways,” he said. “They agree not to spend their own money suing you on behalf of copyright owners, and you end up giving up your privacy. You end up confessing your sins, but it leaves all the actual recording companies… and all these people to come after you anyway if they want to, and sue you.”

And of these articles from The Register:

• The RIAA sees the face of evil, and it’s a 12-year-old girl

• RIAA keeps 12-year-old quiet with $2,000 bill

  The RIAA’s actions, however, aren’t going unnoticed by the government. During a Senate Judiciary Hearing Tuesday, the RIAA president Cary Sherman faced some tough questions.

  “Are you headed to junior high schools to round up the usual suspects?” Sen. Dick Durbin asked, according to the AP.

  “Yes, there are going to be some kids caught in this, but you’d be surprised at how many adults are engaged in this activity,” Sherman said.

  Don’t let your emotions get the best of you, Cary. Come on, stay tough.

This is off-topic, but it says a lot of important things: Bush’s big lies, continued. Two particularly excellent paragraphs:

How can the president tell us with a straight face that we taxpayers have a patriotic duty to cough up $87 billion more to enable him to sink us deeper into the Iraq quagmire of his making? That’s a lot of money on top of the $79 billion already appropriated by Congress in April — enough to bail out California and every other state experiencing a budget crisis because of economic problems this president has only exacerbated. Shouldn’t those who warned against Bush’s folly at least qualify for another one of his signature tax rebates?

[...] Perhaps the most galling aspect of Bush’s consistently defensive speech, however, was his naked attempt to turn what has become a security disaster for U.S. troops, United Nations workers and the Iraqi people into a positive situation. He makes it seem almost a good thing that terrorism is on the rise in Iraq, because we’ve got our enemies where we want them. In claiming that “Iraq is now the central front” in the “war on terror,” Bush is heralding a self-fulfilling prophecy: He claimed Iraq was a hotbed of terrorism, and he turned it into one.

See also Jack Balkin’s walk down memory lane: Ah, February

In yesterday’s posting from his weblog: The music industry’s pie rats strike back

These numbers are reminiscent of the old software-industry complaints about software piracy: They assume that each illegal copy of a program or a music file represents the loss of a sale — that if the alternative of piracy were not available, most or all of the pirated stuff would have been bought fair and square at full price.

[...] This is self-serving nonsense. First of all, it treats the digital realm — in which each additional copy costs essentially nothing to make and does not limit the original’s availability to its owner — as if it were the physical realm, where copying carries costs and stealing involves depriving the original owner of his goods. Even more importantly, it ignores the essentially transitory nature of much or most file-sharing — which music lovers use to sample music, to see whether they like it, and frequently just to listen once or a handful of times. Each download does not and cannot represent a lost sale. But the record labels have an incentive to artificially overstate the size of the pie-slice that online piracy has cut out, and they have done so with all the scurrying zeal — and comical ineffectiveness — of Richard Scarry’s rats.

I get all my online music these days legally from the great Emusic service. But back in the days of Napster I used the software to listen to bands I’d heard about and see whether I liked them. I bought more CDs as a result. This year for the first time in my life I have consciously decided to cut my music purchases way back. I won’t support the pie rats!

I, too, have decided to cut my buying back, through use of the RIAA Radar tool (although it seems not to be working today?), and purchases of second hand CDs. Enough is enough.

RealNetwork’s Rhapsody Service Streams Past 500,000-Song per Day Threshold

SEATTLE - September 8, 2003 — RealNetworks®, Inc. (Nasdaq: RNWK), the global leader in digital media services and software for consumers and businesses, today announced that it streamed more than 16 million on-demand songs to RHAPSODY subscribers in August, an average rate of more than 500,000 songs per day. In the past five months, the service has more than doubled the number of songs streamed to customers each month.

An open proposal to the industry: RIAA - Who are the Pirates?

I’ve purchased the Beatles White Album several times. My first was the 12″ vinyl LP. Not long after that, I picked up the eight track, then the cassette and more recently I purchased the CD. Looking at these licenses not only caused me to realize how old I really am, but caused me to ask a few other questions.

Is there a way to return the CDROM and upgrade to a new container (LP, cassette, CD etc) format? Unlike Will Smith, I wont be buying a 12″ CDs just yet, but it’d be nice to know that I could when they come along.

The answer is no. The recording industry has not, does not, nor does it seem likely that they will ever implement a means to transfer a license to a new format. But what if my CD cracks or gets scratched. I have the right to a new copy… right? Nope. Unfortunately, I’m out of luck here as well. If the container to my music gets damaged, so does the license that the container holds.

This means that after all these years, as each of us filled the recording industry’s coffers, buying what we *thought* was music, we instead were only buying a mere license to play that music.

[...] The container housing my license is a fragile one. This explains why so many of us felt the need to make a backup copies of these items. We unfortunately, ought not get too attached to those backups, as we’re on the brink of having this right taken away from us.

Today, you can still make backups with your computer, but the RIAA (Recording Industry Association of America) is working furiously to keep you from making these copies.

To end this injustice, I would like to propose that the recording industry provide us with a means to transfer our license to a new container format. There’s money to be made on these exchanges. I believe that a moderate transfer fee would be acceptable to most consumers.

If consumers purchased the rights to music, let us retain those rights. Allow us to distribute our property accordingly. However, If what we purchased was merely a license, we should be given the opportunity to retain and transfer that license as necessary.

Help Desk; September 10, 2003

The Globe also has an interesting article on training for rank and file law enforcement to handle cases with IT overtones. One key paragraph is pertinent to several current topics: CSI meets point and click in crime class [pdf]

Especially since the bad guys are getting smarter. Haynes said that some of them now use tough data encryption software like Pretty Good Privacy to lock up files full of possibly incriminating information. Others set up wireless Internet systems in empty apartments, then run their criminal operations in a nearby building, using a wireless laptop to connect to the Internet. If police track their Internet address and raid the apartment, they find nothing but a wireless transmitter.

Because criminals are quick to adopt the latest gadgetry, said Haynes, cops need regular training on the latest digital investigation techniques.

An interesting peril of coming in to work terribly early - the online Globe apparently is not updated until early (rather than very early) morning. Today’s article on the RIAA suits: Dozens in state face RIAA suits [pdf] raises the real question. How far can the industry go before people start to push back, and what form might that push-back take? Some quotes from locals suggest that this series of lawsuits will do a lot to get that discussion going.

Already, the Recording Industry Association of America had to move quickly to diffuse a public relations nightmare yesterday, settling for $2,000 a lawsuit filed against a 12-year-old New York City honors student who shared her digital music collection.

That’s what Sylvia Torres, the mother of a 12-year-old honors student in New York City who was sued for copyright infringement, did yesterday. After Brianna LaHara’s forlorn face appeared on the front page of the New York Post yesterday under the headline, “Music Pirate,” the RIAA quickly moved to diffuse the public relations nightmare by settling with the family for $2,000.

[...] Nancy Kinchla, a clinical researcher at the Dana-Farber Cancer Institute, said she deleted Kazaa from the computer in her Medway home after her Internet service provider warned that her identity had been revealed to music industry investigators. She doesn’t think her teenage daughter did anything wrong by downloading hundreds of songs because she had never been advised the practice was illegal. “She wasn’t selling the music,” Kinchla said. “They should really go after Kazaa or people who are making money by bootlegging CDs. They’re going to have to figure it out, because we live in a world of technology.”

[...] George Nadolny, 50, from East Bridgewater, got the message. After a warning from his Internet provider, the pipe insulator told his teenage daughters to stop downloading songs by Alanis Morissette, Avril Lavigne, and other artists; then he removed Kazaa from the home computer. “I used it as a civics lesson,” he said. He got sued anyway. “If they come after me, they come after me,” he said. “Maybe I’ll be an example.”

Tech Law Advisor notes that a complaint has been filed in California over the Clean Slate Program, alleging fraudulent business practices [via beSpacific].

From the opening of the complaint:

Complaint for Injunctive Relief Against Fraudulent Business Practices and Demand for a Jury Trial

Plaintiff ERIC PARKE, as a representative of The General Public of the State of California, brings this action for injunctive relief to put an end to defendant Recording Industry Association Of America’s (”RIAA”) unlawful, unfair and deceptive “Amnesty” or “Clean Slate Program” — which consists of deceptive and misleading representations by the RIAA including a guarantee not to sue file sharers designed to induce members of the general public of the State of California (and elsewhere) to incriminate themselves and provide the RIAA and others with actionable admissions of wrong-doing under penalty of perjury while members of the general public actually receive, contrary to RIAA’s publicity campaign, no legally binding release of claims and no actual “amnesty” from litigation in return. In brief, the RIAA’s assurances of “amnesty” for complying with its “Clean Slate Program” are hollow and deceptive, and provide members of the general public with no real legally binding assurance that those individuals who are induced by the RIAA’s empty promises to admit activity objectionable to the RIAA, its members, or other recording companies, will be free from later prosecution by the government or lawsuit by Copyright owners for the very copyright infringement admitted under the Amnesty program. The RIAA describes the program as “Clean Slate” but yet does not promise to destroy any data or evidence collected on members of the general public who submit affidavits under the “program” leaving the “slate” anything but “clean” for those Copyright owners or Government prosecutors who subpoena such information from the RIAA. This lawsuit seeks a remedy to stop the RIAA from engaging in unlawful, misleading, and fraudulent business practices including advertising an “Amnesty Program” that does not provide real amnesty from lawsuit and a “Clean Slate Program” that does not provide a real “clean slate.”

• Followup to RIAA Sues 12-Year Old Girl - RIAA Settles With 12-Year-Old Downloader

• Covered elsewhere, but the discussion is what’s needed to get the real context: Barnes and Noble Drops Ebooks

• And a really surprising announcement that I’m going to need to read more about: Dartmouth Project Combines Linux With TCPA

Their WWW site is an obnoxious multimedia mess, but this press release seems interestingly timed - and composed of some distressing "educational" content: SunnComm’s MediaMax CD3™ Technology Allows CD Buyers to Copy and Share Music Legally

SunnComm Technologies, Inc. (OTC: STEH) CEO, Peter H. Jacobs says, “It’s no longer necessary for music lovers to violate artist, publisher, and record company copyrights in order make additional personal copies of music tracks on the CDs they buy. Records labels choosing to utilize SunnComm’s MediaMax CD3 technology can now set the number of times a consumer may copy a particular song on a purchased CD. Now, music buyers can send selected tracks of their favorite music to friends along with licensing which permits those friends to play the music for a limited period of time or a specified number of plays.”

SunnComm’s innovative new method permits music copying on a limited and licensed basis while removing the stigma brought about by unauthorized copying and file sharing. At the same time, MediaMax creates a barrier which discourages the illegal copying or “ripping” of music.

Now ripping is illegal?