March 20, 2007

RIAA makes an offer students can't refuse ... or can they?

Posted by Larisa Mann at 8:28AM

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Recently the Recording Industry Association of America offered a "deal" to college students on 13 campuses (Arizona State U.; Marshall; North Carolina State; North Dakota State; Northern Illinois; Ohio U.; Syracuse; UMass, Amherst; U. of Nebraska, Lincoln; U. of South Florida; USC; U. of Tennessee, Knoxville; and U. of Texas, Austin) whom they suspect of illegally downloading copyrighted music: "pay us off now, and we'll give you a discount on what you'll be hit with after we take you to Federal court."

Some reasons why this deal is bogus:

First: there are many examples of uploading/downloading music that are completely legal: if the copyright holder has given permission, if the music is in the public domain or creative commons-licensed, or if the purpose of the downloading is covered by the fair use exemption of the Copyright Act. Some of these defenses cannot be known without knowing how the file was to be used, which requires more investigation.

Second: there's no way for the RIAA to know which actual student did what on a university computer without filing a lawsuit (which costs them more money) or convincing the university to hand over names (which costs money and time). Just because you got the letter, in other words, doesn't mean you broke the law, or that they know what you did at all.

Third: The fact that they are using legal-sounding letters and threats of to extract information from people (including information that could incriminate themselves or other people in a criminal suit) is something that some have suggested is a potential violation of our due process rights.

This latest round of threats is part of a series of lawsuits and threats against individual music fans that started in 2003 with a suit against 261 people. Since that time, the RIAA has sued or threatened suit in waves, altering their plan each time it is attacked in congress, or a judge rules that their previous plan is illegal.

The scarily high cost of legal representation plus the inflated value of statutory damages for infringement usually leads to staggeringly high numbers facing a student (or anyone) at the outset, since the Digital Millennium Copyright Act specifies minimum damages are $750 per infringement. All of these factors could scare students into settling even if they have a valid legal defense of their actions.

The deeper reason this is terribly bogus is the RIAA's claimed motivation: that downloading is "devastating" to "those who create the music and bring it to fans." Sounds like "downloading hurts artists." But the single greatest ripoff of artists' deserved rewards happens way before the music gets recorded at all, it's during the contract negotiation. Most artists signed to Big Four don't own their copyrights at all, and usually receive a pitiful percentage back from their CD sales, if it's not eaten up entirely by the trickery of the major label system of advances and studio time. The numbers don't lie: artists have been getting ripped off by major labels since before the internet, and even if all downloading stopped today that wouldn't change. So the deal isn't even between the artists (whom students might care about) and the students, but between students and the people who rip off artists. Remind me why you'd want to deal with them?

Gizmodo.com has called for a one-month boycott of RIAA products (although some students and musicians I know who are part of underground music scenes have already been boycotting these products for years). For those who'd like a sense of what's out there, http://www.riaaradar.com is a tool that music consumers can use to easily and instantly distinguish whether an album was released by a member of RIAA, and incorporates quite a few searches of amazon.com and other sites.

Tools like this one, in the wake of RIAA-led legal action against music fans may be a sign that the 90's-era business model of enormous content companies (that ate all the indie labels and intimidated small artists into terrible contracts) may in fact be ending... However the enormous content companies aren't giving up without a fight

So, is it working? While some people have complied (fearing prosecution), others have a different responses. The reaction of students I've talked to who hear about this deal has mainly been fear: "I was totally paranoid already" and hostility "I'm going to go download music for sure now." But even students who are nervous about file sharing don't necessarily buy the RIAA's arguments --several I spoke with said they now ask their friends to burn copies of CDs instead of downloading music. Maybe people are more committed to their access to music (and less committed to the RIAA's vision of the music industry) than the RIAA would like.