"Dealing" With Casual Piracy

Three things:

1) I would post a link to the article, but it wouldn't do people much good unless they have access to LexisNexis, which I'm assuming the majority of you do not. Also, as it is from LexisNexis, you may notice some bracketed numbers and n-preceded numbers. The former indicate page number in the journal in which it was published, Vanderbilt Journal of Entertainment and Technology Law. The latter indicates a footnote.

2) For the TL;DR crowd, basic message of this article is that filesharing can be "solved" by creating two standards of media: the first, a higher-priced format with no copy protection; the second, a lower-priced format with all the usual copy protection--or what the author calls "bifurcated licensing". Now, this of course begs the question, "Well, what's to stop people from just buying the non-protected media and ripping and sharing like business as usual?" The answer, in a nutshell: Most stuff is already unrestricted, but doing this somehow will recoup costs of sharing while also restricting average consumer's control over copyrights. The author hints that the reason for all of this is that bifurcated licensing will increase voluntary compliance by increasing the perceived fairness of the market. Personally, I'm pretty skeptical with his contention.

3) Just to give some context to this, this is the winner of the Grammy Foundation's 2006's ELI writing competition, which awards a $5,000 scholarship for the winner, $1,500 to the runner-ups, gives all winners access to contacts in the entertainment industry for their efforts, and is sponsored by the American Bar Association.



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"Dealing With Casual Piracy Limiting Distribution Of Copyrighted Content With Digital Rights Management"
by Bimal Jaysen Rajkomar
J.D. Candidate, University of California, Davis School of Law (King Hall), 2007

Welcome to the Social

- Microsoft tagline for the Zune digital music player

Sharing music among friends and family is not only an important cultural tradition, n1 but, from the content pro-vider's point of [*498] view, it is also an increasingly effective form of marketing. n2 Recorded music enjoys legal protection in the form of intellectual property, specifically copyright law. n3 As a property right, copyright enables the holder to control a wide range of uses n4 that do not fall into "fair use." n5 The legal uncertainty of sharing digital music among friends and family n6 generally would not draw the attention of copyright holders, but the widespread sharing of digital music either over networks or through high capacity portable music players threatens the economic viability of the music industry. n7
The use of digital restrictions to control downstream distribution of music theoretically clears up the hazy line be-tween private use and piracy. n8 Content providers, software developers and technology suppliers may negotiate appro-priate transfer limitations to protect content providers' interests. The protection of copyright through technological measures is commonly known as Digital Rights Management, or simply DRM. Such protections have been employed by content providers and technology companies. n9 In practice however, managing copyright with DRM interferes with consumer interests in a manner that undermines the perceived legitimacy of copyright law that is necessary for voluntary compliance. n10
This article argues that it is possible to implement DRM schemes without eroding the public's trust by offering consumers a choice between technologically-restricted and unrestricted content. Part I discusses how DRM have harmed voluntary compliance with the law. Part II examines the biggest copyright governance issue confronting peer-to-peer networks: casual piracy. Part III explains how a bifurcated licensing scheme can allow content providers to benefit from DRM without incurring its usual costs. Note that some [*499] music distributors and labels have begun to adopt this licensing structure. n11

I. Previous DRM Implementations

The music industry's previous attempts to use DRM have not been effective. n12 Instead, DRM has exposed the industry to bad publicity and lost the trust of some consumers. n13

A. The Microsoft Zune

In the fall of 2006, Microsoft unveiled its portable digital music device, the Zune. n14 Like the industry-dominating Apple iPod, n15 the Zune features the ability to play libraries of music, but, in addition, the Zune allows users to transmit songs wirelessly to other Zune owners. n16 To protect against wholesale copying, Microsoft employs a DRM scheme that causes transferred songs to "expire" after either three plays or three days, whichever comes first. n17 Despite innovative advertising of Zune, critics were unimpressed n18 and its initial sales were unremarkable. n19 For example, New York Times technology writer David Pogue described the Zune as "a killer idea diluted by a ham-handed execution." n20
[*500]

B. The Sony BMG Rootkit

Microsoft should have expected bad press from overly restrictive DRM, especially because, just one year earlier, music label Sony BMG experienced even worse press regarding copy protection found on some of its compact discs. In 2005, Sony BMG released several records encrypted with computer code that prevented consumers from making excessive copies of purchased records. n21 The DRM raised little if any notice until computer analyst Mark Russinovich noted oddities in his computer's functioning. n22 Upon some investigation, he discovered that one of his recently purchased compact discs "hid" a computer program onto his operating system. n23 Van Zant's album "Get Right with the Man" n24 had secretly planted a "rootkit" onto his computer. n25 A rootkit is a "set of tools designed to conceal running processes." n26 He wrote a blog entry describing how he discovered the rootkit, and within hours hundreds of viewers had visited his site. n27
Before long, the mainstream media caught wind of the story, bringing the words "DRM" and "rootkit" into pop culture. n28 The assumption was that this was a terrible public relations fiasco that [*501] would cost Sony and its artists dearly. n29 According to market tracker Nielsen SoundScan, however, the discs with DRM suffered little if any decline when "compared with other medium selling titles at similar points in their release cycles." n30 Moreover, sales of the Van Zant album, the album most commonly associated with the rootkit, actually increased. n31

C. Effects on Marketing and Promotion

If DRM does not necessarily result in lower sales, why should the music industry be concerned with the issue? For artists, the problem with DRM is that it limits the use of their music. As Damian Kulash, singer in the band OK Go, describes the problem: "A record that you can't transfer to your iPod is a record you're less likely to listen to, less likely to get obsessed with and less likely to tell your friends about." n32 OK Go's label, EMI, wanted to test DRM software on the band's album because its audience is comprised of primarily college students. n33 College students are more likely to trade rather than buy albums, n34 so DRM-protected albums presumably would result in higher sales. Kulash, however, sees limited trading as necessary to gain exposure and buzz, and thus disapproves of DRM. n35 Other bands, recognizing the danger of limiting use of their music, have told their fans how to get around DRM protection in order to load [*502] songs on iPods. n36 While Kulash may have a precise opinion on DRM, however, most artists do not even know what DRM means. n37

D. Interference with Consumer Interests

When consumers purchase music, there is an expectation that the purchase entitles the consumer to a set of legal rights. n38 Property rights have significant rhetorical power in American political discourse; a lack of respect for property rights leads to distrust of the legal apparatus, which in turn reduces voluntary compliance with the law. n39 If there is a lesson to be learned from the Sony BMG rootkit incident, "it should be that people want their demands for respect and autonomy to be taken more seriously." n40 This is a challenge, because DRM should stop non-fair use copyright infringement and simultaneously grant enough room for legitimate users to use the content without undue hindrances. It is unclear whether such a balance is even possible, however, with the uniform application of DRM. n41

II. Casual Piracy or Private Sharing

Some content providers view DRM as necessary to protect the future viability of the music industry. n42 The Sony BMG rootkit incident did not change the attitude of Recording Industry Association [*503] of America ("RIAA") President Cary Sherman. n43 He expressed no hesitation about the implementation of DRM in music recordings. n44 Compared with other copyright-dependent industries, he said that the music industry's DRM schemes were not overly restrictive. n45 He recognized that the next major legal issue to face the industry would be from private sharing-what many call "casual piracy." n46
In an August 2005 presentation to the RIAA, CEO Mitch Bainwol displayed a slide saying: "Key point: Burning and ripping are becoming a greater threat than [Peer-to-Peer networks]." n47 Even with legal victories against peer-to-peer ("P2P") file sharing sites, n48 consumers can still use legitimate means to share music illegitimately. For example, twenty-eight percent of Internet users have used email or instant messaging to send or receive media files. n49 Growth of the digital music marketplace will mean a corresponding increase in such sharing.

A. Legal Uncertainty

The legal status of locally sharing legitimately purchased music is unclear. n50 There is a law that provides immunity for non- [*504] commercial copying of music, n51 but it does not apply to digital music. n52 Given the fact that there is no statute specifically governing noncommercial copying of MP3s, it could constitute fair use, which is an affirmative de-fense to copyright infringement. n53 However, in 2005, the Seventh Circuit rejected the argument that a file sharer's use of a P2P network to share thirty songs constituted fair use. n54 The logic behind such a holding was based upon the principle that copyright holders should be able to broadly control downstream duplications of their copyrighted material. n55 The bottom line is that the law favors the copyright holder with respect to sharing.
Arguments that "sharing" benefits the music industry in the form of higher profits rest on the assumption that copy-right is a liability rule, where infringement triggers a penalty. n56 Given that copyright is generally regarded as a property right, n57 these arguments have been afforded little weight in court. n58 Non-fair use of copyrighted works requires ex ante negotiation, and the copyright holder can deny use at her sole discretion.

B. Interaction of Legal and Digital Control of Copyright

What should the music industry do to address casual piracy? Despite technical legal uncertainty, the law generally favors the copyright holder. n59 The real issue for the industry is how to use social [*505] norms and technological restrictions to protect its interests. People voluntarily comply with laws to the extent they are perceived as fair. n60 Technological restrictions have the inevitable side effect of interfering with legitimate uses of music, which in turn triggers a perception of unfairness and decreases voluntary compliance. Arguments to wholly abandon such restrictions are unpersuasive because they completely ignore the interests of copyright holders.

III. Bifurcated Licensing

The solution for sharing should not be addressed at the downstream level, but rather at the initial sale of the music. The purchase of music, like any other copyrighted work, is really about the sale of a license. The purchaser of a compact disc is not granted unlimited rights to use the contents as he pleases, as full copyright ownership is not transferred to the purchaser. n61 As such, the extent of the purchaser's rights should be reflected in the price. An album with technological restrictions, therefore, would cost less than an unrestricted album. The practical consequence of such a policy is that prices for unrestricted media would rise, the prices for restricted media would decrease, or some combination of the two would happen. The increased cost absorbs any incidental private copying, however, which addresses the concern of casual piracy. Licensing both restricted and unrestricted versions of music can be termed "bifurcated licensing."

A. Implementation

Bifurcated licensing is not intended to act as a form of price discrimination that distinguishes buyers based on their ability to pay (or the utility gained from their purchase). n62 Instead, it is a market-based mechanism whereby purchasers can choose the extent of copyright laws applicable to their specific purchase. An ordinary user can opt for technologically restricted content, which makes sense for the user who plans to play the music in a limited fashion, such as on only one computer and one associated MP3 player. The user's limited [*506] use could be controlled by content providers in the digital restriction scheme.
The technologically sophisticated user, on the other hand, can opt for more expensive unrestricted content. n63 Such users often have several computers and multiple devices with which to play music. Content providers can treat such purchases like the sale of unrestricted music today, but exercise leniency with respect to private sharing. Copyright holders can enjoy the marketing benefits of sharing with bifurcated licensing. While some unauthorized copying will occur, these losses can be offset with the higher cost associated with unrestricted music.

B. Lessons from the DVD

To see how a bifurcated licensing scheme could help when it comes to the distribution of digital media, consider the case of DVDs encrypted with the DRM known as Content Scramble System, or CSS. n64 Copyright holders can enforce their encryption efforts through the Digital Millennium Copyright Act (DMCA). n65 CSS led to litigation involving indi-viduals who posted the computer code to break open CSS. n66 Once an encryption mechanism is broken and there is a need to break that encryption, there is no effective legal remedy for the content provider. n67 With CSS, there was a need for users of the computer operating system Linux to circumvent encryption because they could not view legally purchased DVDs on their computers. n68 The movie industry recognized the danger of broken encyrption, because it would not only allow Linux users to view DVDs but also allow other users to access DVD content on any computer system. n69 What started out as a technical necessity evolved into a mechanism to allow a broad array of unauthorized uses. The music industry should learn from the experience of the movie industry and create a digital format that is [*507] actually user friendly, which would help to avert litigation against consumers.
A bifurcated licensing scheme can help to reduce litigation because allowing consumers to choose between unre-stricted and restricted content destroys the need for illegal decryption in the first place. A person would have no motiva-tion to either break the encryption or encourage others to break the encryption when the far simpler way to get an unre-stricted copy is to simply spend a few extra bucks. Preventing consumers from decrypting and disseminating decryption code in the end will only protect the integrity of the encryption.
The choice offered in a bifurcated licensing scheme allows the ordinary consumer (who purchases cheaper, restricted content) to play songs in accordance with protection schemes that have been approved by the content providers them-selves. Technologically demanding consumers, on the other hand, can purchase unrestricted content for a premium. This defeats the efforts of hackers who seek to break copy protection schemes. If consumers can opt for an unrestricted version of an album, there is no sympathy for the cheapskate who wishes to break restrictions.

C. Common Objections

The most salient concern regarding the sale of unrestricted music is backflow: what stops the unrestricted content from being widely distributed among non-purchasers? This concern fails to acknowledge that the vast majority of digital music is already unrestricted. n70 Any approach to address backflow must be both practical and feasible. Bifurcated licensing allows content providers to recoup the costs of inevitable sharing and copying from the higher price tag associate with unrestricted music, while at the same time dictating the terms of sharing and copying for the majority of users. This li-censing scheme gives control back to the copyright holders while being realistic about perfect enforcement. Furthermore, the scheme empowers consumers by giving them a choice, which should lead to increased voluntary compliance because of the perceived fairness of the market.
One down side to a bifurcated licensing scheme is that it would break the uniform pricing of music. This creates the problem that [*508] people might misperceive higher priced music as better. n71 There are, however, existing mecha-nisms to correct for such misperceptions. Music critics provide opinions as to what music the (presumably knowledgeable or at least reputable) critic deems noteworthy. Furthermore, this enhances the importance and prestige of indus-try-sponsored award shows because such awards provide powerful signaling cues to what music is "good." The need to determine what music to purchase further strengthens the value of online discussion sites as consumers seek the opinions of like-minded peers. In all, these activities will more deeply engage music listeners and promote the long-term stability of the music industry.

IV. Conclusion

Offering both restricted and unrestricted content at appropriate prices is imperative for the music industry. There are already trends moving in this direction. n72 The music industry should embrace bifurcated licensing and implement the pricing scheme on its own terms. This scheme preserves the primacy of the copyright holder. Waiting too long to rec-ognize the importance of offering consumers a choice could result in a cultural shift detrimental to the interests of copy-right holders, as seen with video sharing sites. n73 Offering a choice benefits both the industry and the consumer.



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For those who just can't get enough of this, here's the article's works cited page.

Spoiler:

n1. David F. Gallagher, For the Mix Tape, A Digital Upgrade and Notoriety, N.Y. Times, Jan. 30, 2003, at G5.

n2. Julia Angwin et al., Record Labels Turn Piracy Into Marketing Opportunity, Wall St. J., Oct. 18, 2006, at B1.

n3. 17 U.S.C. §102 (2000).

n4. 17 U.S.C. §106.

n5. 17 U.S.C. §107.

n6. See infra Part II.A.

n7. This article does not address massive copyright infringement (high-volume bootlegging or use of Dark-nets) because such criminal activity is, in the author's opinion, better enforced by federal authorities. Darknets are private networks of trusted users, often associated with the sharing of copyrighted material. Material initially distributed through Darknets often winds up on open file sharing networks. See generally J.D. Lasica, Darknet: Hollywood's War Against the Digital Generation (2005). This article is directed at sharing songs digitally with personal contacts. This issue is discussed more fully infra in Part II.

n8. See infra Part I.

n9. See id.

n10. See infra Part I.D.

n11. Music label EMI has announced that it will offer music both with and without DRM, available on Apple iTunes. EMI's DRM-free singles will cost more than the DRM counterpart. Full albums will be sold without DRM. Press Relase, EMI, EMI Music Launches DRM-free Superior Sound Quality Downloads Across its Entire Digital Repertoire (Apr. 2, 2007), available at EMI Music launches DRM-free superior sound quality downloads across its entire digital repertoire.

n12. See infra Part I.A, I.B.

n13. See infra Part I.C.

n14. Press Release, Microsoft, Microsoft Zune Delivers Connected Music and Entertainment Experience (Sept. 14, 2006), available at Microsoft Corporation press-pass/press/2006/sep06/09-14ZuneUnveilingPR.mspx.

n15. Jenna Wolf, Hear Today, Gone Tomorrow, Boston Herald, Apr. 9, 2006, at Edge, 7 ("Apple has sold more than 42 million iPods since they went on sale in 2001, making it the most popular portable MP3 player.").

n16. Press Release, Microsoft, supra note 14.

n17. Id.

n18. See posting of Dwight Silverman to Houston Chronicle Tech Blog, http://blogs.chron.com/techblog/archives/2006/11/here a zune th e 1.html (Nov. 12, 2006, 09:59 EST) (rounding up reviews of the Zune and describing critical response as "mixed, and shall we say, not altogether kind").

n19. See Ina Fried, Study: Zune Fails to Crack Top 10 in Sales, CNet News.com, Jan. 4, 2006, http://news.com.com/Study+Zune+fails...+10+in+sales/2 100-1041 3-6147422.html.

n20. David Pogue, Brilliant Ideas That Found a Welcome, N.Y. Times, Dec. 28, 2006, at C1.

n21. Dan Mitchell, The Rootkit of All Evil, N.Y. Times, Nov. 19, 2005, at C5; Wikipedia.org, 2005 Sony BMG CD Copy Protection Scandal, Main Page - Wikipedia, the free encyclopedia wiki/2005 Sony BMG CD copy protection scandal (last visited Mar. 12, 2007).

n22. Posting of Mark Russinovich to Mark's Blog, TechNet Blogs - Blogs markrussino-vich/archive/2005/10/31/sony-rootkits-and-digital-rights-management-gone-too-far.aspx (Oct. 31, 2005, 11:04 EST).

n23. Id.

n24. Van Zant, Get Right with the Man (Sony Records 2005).

n25. Russinovich, supra note 22.

n26. Wikipedia.org, Rootkit, Rootkit - Wikipedia, the free encyclopedia (last visited Feb. 26, 2007). Rootkits are most often associated with hackers because they run without a user's knowledge. Id. For DRM purposes, the reason for concealing the process is to prevent the user from shutting down the program that prevents copying. Id. Russinovich showed that by merely prefixing "$ sys$ " to a program file name, the program could be run without the user's knowledge. Russinovich, supra note 22.

n27. See Russinovich, supra note 22. Digg.com and Slashdot.org had links to Russinovich's blog entry the same day it was posted. See posting of ScuttleMonkey to Slashdot, Slashdot | Sony DRM Installs a Rootkit? (Oct. 31, 2005, 19:04); posting of Burnsey to Digg, Sony, Rootkits and Digital Rights Management Gone Too Far, http://www.digg.com/security/Sony, Rootkits and Digital Rights Management Gone Too Far (Oct. 31, 2005). The tech-savvy audiences of Digg and Slashdot were enraged: calls to boycott Sony and threats of class-action lawsuits were not uncommon. See, e.g., posting of Indytx (825419) to Slashdot, Sony DRM Installs a Rootkit? 1&commentsort=0&mode=thread&cid=13922517 (Nov. 1, 2005, 08:45).

n28. See Mitchell, supra note 21.

n29. Martin Reynolds & Mike McGuire, Sony BMG DRM a Public-Relations and Technology Failure, Gartner Research, Nov. 18, 2005, available at Gartner delivers the technology-related insight necessary for our clients to make the right decisions, every day. resources/136300/136331/sony bmg drm a publicrelatio 136331.pdf.

n30. John Borland, Sony Sailing Past Rootkit Controversy, CNet News.com, Nov. 21, 2005, http://news.com.com/Sony+sailing+pas...ersy/2100-1027 3-5965243.html (noting that this was true up until the date of publication, at least).

n31. Id. Cf. Angela Pacienza, Copy-Protected CDs Turning Music Fans Off Record Buying: Retailers, Canada.com, Nov. 20, 2005, canada.com national-post/news/story.html?id=9682a973-f0e4-4610-819f-f96bf087ec43&p=1 ("It's becoming a regular occurrence in CD shops across the country: an irate customer comes in complaining the CD they bought won't play on their computer, and worse yet, they can't transfer the tunes to their iPod.").

n32. Damian Kulash Jr., Buy, Play, Trade, Repeat, N.Y. Times, Dec. 6, 2005, at A27.

n33. Id. (noting that college students usually have access to high-bandwidth connections that facilitate digital music sharing).

n34. Id.

n35. Id.

n36. Mikael Hoffman, Musicians Tell Computer Users How to Beat System, Techspot.com, Musicians tell computer users how to beat system - TechSpot News (Oct. 5, 2005 10:40 EST).

n37. Tom Zeller Jr., The Ghost in the CD; Sony Stirs A Debate Over Software Used to Guard Content, N.Y. Times, Nov. 14, 2005, at C1 (""Look, what we do is write music; we make music,' said Donnie Van Zant, who like most artists had no idea what sort of security features, if any, his label would place on the album. "I really don't even know what D.R.M. means, to be honest with you.'").

n38. For example, pursuant to copyright law's "first sale" doctrine, "the owner of a particular copy or phon-orecord lawfully made ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." 17 U.S.C. §109(a).

n39. Tom Tyler, Why People Obey the Law 22 (1990).

n40. John Borland, Who Has the Right to Control Your PC?, CNet News.com, Nov. 21, 2005, http://news.com.com/Who+has+the+righ...r+PC/2100-1029 3-5961609.html (quoting Julie Cohen, Georgetown University Law Professor).

n41. Zeller, supra note 37 (""It's abundantly clear by now that no D.R.M. system can stop serious pirates,' wrote Edward W. Felten, a professor of computer science and public policy at Princeton University, on his blog, Freedom-To-Tinker.com. "A D.R.M. system that stops serious pirates, and simultaneously gives broad leeway to ordinary users, is even harder to imagine.'").

n42. Cary Sherman, RIAA President, Online Press Conference (Nov. 18, 2005), http://www.riaa.com/news/newsletter/111805.asp.

n43. Id. The RIAA is a trade group representing major record labels. See generally RIAA.com, http://www.riaa.com/news/newsletter/111805.asp (last visited Mar. 27, 2007).

n44. Id. ("There is nothing unusual about technology being used to protect intellectual property. You can't simply make an extra copy of a Microsoft operating system, or virtually any other commercially-released software program for that matter. Same with videogames. Movies, too, are protected. Why should CDs be any different?").

n45. Id. ("How many burns are you allowed of a movie? None. How many of a videogame? None. You get the idea. Even the CDs with content protection allow consumers to burn 3 copies or so for personal use. The idea is not to inhibit personal use, but to allow personal use but discourage (not prevent, you can never prevent) copying well beyond personal use.").

n46. Id.; see also Zeller, supra note 37 ("After years of battling users of free peer-to-peer file-sharing networks (and the software companies that support them), the recording industry now identifies "casual piracy'-the simple copying and sharing of CD's with friends-as the biggest threat to its bottom line.").

n47. Id.

n48. See generally MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

n49. PEW Internet & American Life Project, Music and Video Downloading Moves Beyond P2P (Mar. 2005), http://www.pewinternet.org/report display.asp?r=153.

n50. Compare Electronic Frontier Foundation, Prelude to a Fake Complaint, http://www.eff.org/IP/Apple Complaint.txt (last visited Mar. 27, 2007) (stating that "all the major record labels still believe that private sharing of songs from your CDs with friends is copyright infringement") with FAQ, RIAA Website, http://www.riaa.com/news/ newsletter/062503 b.asp (last visited Mar. 27, 2007) (responding to the question of whether consumers have the right to make copies from their own CDs: "It depends on the circumstances. Certainly, consumers may be able to make a limited number of copies for their own personal use.").

n51. See The Home Audio Recording Act, 17 U.S.C. §1008 (2000) (creating immunity from direct in-fringement "on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."). Giving a friend a record to rip onto MP3 or sharing an MP3 should be mere non-commercial use and therefore immune.

n52. A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (affirming the district court ruling that the Home Audio Recording Act did not apply to MP3s).

n53. 17 U.S.C. §107 (2000).

n54. BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).

n55. UMG Recordings, Inc. v. MP3.com, Inc., No. 00 Civ. 472 JSR, 2000 U.S. Dist. LEXIS 13293 (S.D.N.Y. Sept. 6, 2000). MP3.com allowed subscribers to access music over the Internet. Id. at 2. Subscribers could only listen to legitimately purchased albums. Id. Subscribers proved ownership of albums with a verification service. Id. The plaintiffs won on the theory that "defendant [was] re-playing for the subscribers converted versions of the recordings it [had] copied, without authorization, from plaintiffs' copyrighted CDs." Id. at 3.

n56. See generally Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inaliena-bility: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).

n57. UMG Recordings, 2000 U.S. Dist. LEXIS 13293, at 11 ("Copyright, however, is not designed to afford consumer protection or convenience but, rather, to protect the copyrightholders' property interests.")

n58. See In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003).

n59. See supra Part II.A.

n60. Tyler, supra note 39, at 22.

n61. See 17 U.S.C. §106 (2000) (noting the exclusivity of copyright ownership). The purchaser cannot make unlimited copies or widely distribute the work, but he could do so if he owned the copyright. See id. Note that purchasers can dispose of purchased copyrighted material through the First Sale Doctrine. 17 U.S.C. §109(a).

n62. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996).

n63. As a viable alternative, the unrestricted version could apply a license that permits broad reproduction and distribution. A Creative Commons license could allow for greater exposure for up-and-coming bands. See gen-erally Creative Commons, Creative Commons (last visited Mar. 27, 2007).

n64. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 436-37 (2d Cir. 2001).

n65. Digital Millennium Copyright Act: Circumvention of Copyright Protection Systems, 17 U.S.C §1201 (2000); see also id. §§1203, 1204.

n66. Corley, 273 F.3d at 435.

n67. Although Corley lost his case, the code to decrypt DVDs (deCSS) is widely available via Google or any major search engine. See Google Search for "DECSS," decss - Google Search (last vis-ited Mar. 27, 2007).

n68. Corley, 273 F.3d at 437.

n69. Id. at 438.

n70. Steve Jobs, Thoughts on Music (Feb. 6, 2007), Apple - Hot News thoughtsonmusic (Apple research found that 97% of the music loaded onto Apple digital music players is unrestricted).

n71. Gretchen B. Chapman & Eric J. Johnson, Incorporating the Irrelevant: Anchors in Judgments of Belief and Value, in Heuristics and Biases: The Psychology of Intuitive Judgment 120 (Thomas Gilovich et al., eds. 2002). Heuristics are mental shortcuts that people use to make judgments with imperfect information. Id. These mental shortcuts have the side effect of creating biases, such as perception that more expensive products are su-perior to cheaper ones. Id.

n72. See, e.g., eMusic, www.emusic.com (last visited Mar. 27, 2007) (offering unrestricted MP3s for a lower price than Apple iTunes).

n73. The term "tolerated use" was coined by Professor Tim Wu when describing the legal landscape of video sharing site YouTube.com. See Tim Wu, Does YouTube Really Have Legal Problems?, Slate.com., Oct. 26, 2006, How the Bell lobby helped midwife YouTube. - By Tim Wu - Slate Magazine ("Much of the copyrighted material on YouTube is in a legal category that is new to our age. It's not "fair use,' the famous right to use works despite technical infringement, for reasons of public policy. Instead, it's in the growing category of "tolerated use' - use that is technically illegal, but tolerated by the owner because he wants the publicity.").

Jam it back in, in the dark.

Quote:

What should the music industry do to address casual piracy?

Nothing!

The question people should be asking themselves is whether piracy is essentially a bad thing. I would agree profiting from it is, but not the practice in and of itself.

Piracy in the developed world's neither a social nor an economic problem. There's nothing at stake but the revenue margins of a few territorial conglomerate labels, and the possible loss of one market for the relevant manufacturers (discs, jewel cases, etc) as more of the music trade moves online.

At any rate the net has turned all suppliers alike into buskers, and that can never be reversed. Filesharing is more powerful than any PPP social engineering initiative, which is what this paper seems to suggest trying. The Decca Group and the rest must work out how to remain viable within the new parameters or simply close down, and the individual consumer must ask themselves if they want to pay the busker for a top product or just accept it free.

There's nowhere I can't reach.

Wasn't there a study released in recent days which stated that "piracy" actually helps selling CDs...?
Well, of course not the blackmarket-piracy but the internet piracy of bittorrent fame.
I readily believe it, cause I've found some of my favourite bands through filesharing, and then just bought everything from them I could find...

This thing is sticky, and I don't like it. I don't appreciate it.

There is absolutely no way to justify breaking well-known laws. You can claim up and down the economics of it, or how it should be different, but the fact is that it isn't different, these are the rules we have, and people are willfully breaking them.

If you want to be able to freely share music, I'm fine with that. Obtain the copyrights. Change copyright law. Create your own label which guarantees an open use. You're more than welcome to do all these things.

The far better solution to the RIAA is not to steal from the RIAA, but to render them obsolete through competition.

Going 60 in a 55 may not be an egregious offense, but it still is an offense nonetheless. I have no sympathy for people who get caught in piracy and I have no criticism for the RIAA to run its business model as it sees fit. If I ever own a business, I would hope to be able to similarly run it as I see fit and have the law as the protection against people committing offenses against me, regardless of if I choose to pursue a case or not and regardless of if someone can make a claim that offenses against me are not harmful.

I am a dolphin, do you want me on your body?

The only thing that bothers me about the nature of the music industry is that it's rather limiting in its distribution. Most of the media I download is stuff I cannot get in the local market. It's hard to find music from a garage band that records half-way around the world from you, that isn't signed to a major label. There's no practical way to distribute that kind of thing--oher than of course through filesharing networks, where you can have small groups of people who share the same taste in music and are always trading and exploring each-others tastes. I'm always sorely disappointed when I go to the music store and all I find is top 40. Granted, I do like to support the independent record stores and labels, then again they're mostly just locally produced music, so if I want something from say Germany, that's an independent label I'd be hard pressed to find it even on Amazon.com.

I want variety, which is something that's lacking today, I think. That's why I download.

I was speaking idiomatically.

Originally Posted by BlueMikey

The far better solution to the RIAA is not to steal from the RIAA, but to render them obsolete through competition.

While I agree with this - the chances of it happening are exceedingly slim since you're talking about absolving a major trade group thats been in existence since the 1950s. Not to mention - kids on the internet are not known for banding together to fight anything of any importance, ever.

This said, Cal is obviously the larger problem, as he sees it as being justifyable in certain circumstances when it most certainly never, ever is.

What kind of toxic man-thing is happening now?

Originally Posted by BM

The far better solution to the RIAA is not to steal from the RIAA, but to render them obsolete through competition.

Your far better solution's long since been in play, and is steadily making the RIAA and its clientele obsolete: potentially costless music. Less secure prospects for revenue generation won't be killing music any time soon.

PS. LeHah, if rightful remuneration's a concern, Johnny Williams is going to get paid a shitting mint for the next self-derivative OST (as always) whether we open the wallet or hop onto Mininova.

FELIPE NO

Originally Posted by BlueMikey

Going 60 in a 55 may not be an egregious offense, but it still is an offense nonetheless.

Until perspectives change and the speed limit is raised or lowered depending on the public need thereof. The law and the judges that interpret it are often swung simply by the weight of popular opinion (or, if that seems cynical to you, by changing expectations made possible by advances in technology.)

Our highway speed in Texas is 70, because, well, folks thought it'd be downright silly to have to drive 55 through wide expanses of open plains, and we have cars that can do it somewhat efficiently anyways.

What, you don't want my bikini-clad body?

Originally Posted by Cal

PS. LeHah, if rightful remuneration's a concern, Johnny Williams is going to get paid a shitting mint for the next self-derivative OST (as always) whether we open the wallet or hop onto Mininova.

John Williams has ten years to live and has made half a million per film since 1983. I don't think he needs any more money.

But what about the up-and-coming people?

Jam it back in, in the dark.

To suggest that up-and-comers somehow need a dinosaur infrastructure and business model to make music is the height of cynicism. And at any rate, to use the Williams example again, the majority of music makers are going to be plying their trade in the context of a wider industry, eg. TV, film, interactive media.

There's nowhere I can't reach.

Originally Posted by Cal

To suggest that up-and-comers somehow need a dinosaur infrastructure and business model to make music is the height of cynicism. And at any rate, to use the Williams example again, the majority of music makers are going to be plying their trade in the context of a wider industry, eg. TV, film, interactive media.

You're forgetting that to get attention to merit any type of those mass-media contexts, they need exposure - which means SALES.

Futhermore, the notion that there is some type of conspiracy where the RIAA and labels bury talented artists is as stupid as that jackass who started the Creationism thread. The fact of the matter is - talent doesn't matter shit to the industry, sales do. And if the worst band in the world goes gold, they aren't going to complain. Its just the way things work, its an industry and not a charity for a reason.

This thing is sticky, and I don't like it. I don't appreciate it.

Originally Posted by Skexis

Until perspectives change and the speed limit is raised or lowered depending on the public need thereof. The law and the judges that interpret it are often swung simply by the weight of popular opinion (or, if that seems cynical to you, by changing expectations made possible by advances in technology.)

Do you really think there is a public need for free music? That's not a guaranteed right, the ability to hear music created by others.

There is no common law remedy to copyright law, these are mostly things that are established by federal statute, and the courts mostly fill in the gaps. Thus, you're not going to get out of breaking the law simply by saying that a lot of people think you should be able to. There is nothing unconstitutional about copyright law. Which means get your legislature to change it before you break it or understand that you are bearing the risk.

I am a dolphin, do you want me on your body?

Originally Posted by BlueMikey

There is absolutely no way to justify breaking well-known laws. You can claim up and down the economics of it, or how it should be different, but the fact is that it isn't different, these are the rules we have, and people are willfully breaking them.

I agree with you on this, but I wouldn't dismiss the economics of it altogether. Litigation isn't cheap, so if the RIAA's anti-P2P campaign isn't working (I don't think it is), then even if the law is on their side, economically it may actually be making matters worse by creating a poor public image, using lots of resources combating anti-P2P, while not actually significantly preventing filesharing.

The thing that struck me about this article is that this is considered a top-notch analysis, yet I find the author's solution to P2P dubious at best, which makes me wonder if there even is a good solution. That said, what's your opinion of the article, Mikey? Do you think the proposal has merit, or is the RIAA's current strategy better?

How ya doing, buddy?

I didn't read it, mostly because it was really long. I just went and looked at the conclusion.

I mean...it doesn't matter to me if the proposal is better or not. The RIAA is free to contract with its musicians as it sees fit. Independent labels are free to do that if they want, of course.

I mean, it probably has merit. They could do nothing but unrestrictive licenses and succeed.

But what would be different between having labels that have restrictive licenses and ones that have unrestrictive? I think what is lost in this is that all artists do not want their music freely shared, some will want their music only sold by the copy and retaining the copyrights tightly. The RIAA is restrictive, but artists don't have to sign with them and some artists may enjoy the protections that the RIAA can provide through brute force.

The market will push what labels and musicians do, there's no need to force anything.

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Originally Posted by BlueMikey

Do you really think there is a public need for free music? That's not a guaranteed right, the ability to hear music created by others.

There is no common law remedy to copyright law, these are mostly things that are established by federal statute, and the courts mostly fill in the gaps. Thus, you're not going to get out of breaking the law simply by saying that a lot of people think you should be able to. There is nothing unconstitutional about copyright law. Which means get your legislature to change it before you break it or understand that you are bearing the risk.

Don't get me wrong, I think artists should be paid for their services, and I don't have any delusions about whether popular opinion is law or not. My point was only that it influences and sometimes informs law.

I don't think the solution is to keep the public uninformed about what exactly they're buying. MP3s are the best possible solution to that right now, since many labels refuse outright to have streaming versions of the whole albums available to listen to, or other alternatives that allow people to preview what they're paying for. There seems to be a movement against informed consumers, which, as a music enthusiast, ticks me off, and certainly doesn't make me want to spend any more money unless I know where it's going. (Relatively speaking.) I mean, I pay for CDs all the time. I fully plan on buying Alter Bridge's new CD the next time I'm at Best Buy because I listened to the album beforehand. But only because I like it enough that I think the artist and the people who support that artist deserve my 13 bucks.

As it stands, copyright law is not unconstitutional. You're right. But "copyright law" as a monolithic entity may well form into "physical media law" and "electronic media law," each with its own set of rules and regulations. If it ever comes to pass, this will not have been done in a vacuum.

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Originally Posted by Ridan Krad

Litigation isn't cheap, so if the RIAA's anti-P2P campaign isn't working (I don't think it is), then even if the law is on their side, economically it may actually be making matters worse by creating a poor public image, using lots of resources combating anti-P2P, while not actually significantly preventing filesharing.

They have more money than God. Theres going to be no end in litigation from a money perspective.

Originally Posted by Skexis

As it stands, copyright law is not unconstitutional. You're right. But "copyright law" as a monolithic entity may well form into "physical media law" and "electronic media law," each with its own set of rules and regulations. If it ever comes to pass, this will not have been done in a vacuum.

You say all these words - but do you know what they mean? They really don't add up to anything. Its like reading a 6th grader's book report and he used the dictionary, where every third word is improperly used.

How ya doing, buddy?

Originally Posted by BlueMikey

Do you really think there is a public need for free music?

There's a timeless social need for music as a non-commodity, which is why I find it so hard to understand how people can defend the notion that if you create music and get it out there, you have some sort of 'right to profit'. A far more sensitive and reciprocal model for the future of music commerce would be that creators/suppliers have an opportunity to profit - if they can sufficiently impress the listener to open their wallets. This is exactly what a technology like the net is providing right now, but everyone just wants to have a sook.

In fact I'd even be pleased if music traders were in the game merely to break even, instead of this insatiable thirst for profit, which leads only to aggressive litigation, draconian security methods, the infantilising drama of cashed-up celebrity, etc. I daresay the big producers invariably break even already. But of course that Possibility of Slighty More Profit If We Employ Piracy As a Price-hike Scapegoat! always beckons.

Originally Posted by LeHah

You're forgetting that to get attention to merit any type of those mass-media contexts, they need exposure - which means SALES.

New Line does not need Howard Shore to flog 500k copies of a score in order for there to be a thriving film music industry. Shore does not need to flog 500k copies in order to get rehired. That's ridiculous.

Nor do 'pure' music artists necessarily need hardcopy album sales to gain exposure. You can pester community and public broadcasters for airtime, put up a Myspace, do the odd pub gig or enter am/pro competitions. Only the last two will in some cases entail commercial transaction at all.

Jam it back in, in the dark.

Originally Posted by Cal

There's a timeless social need for music as a non-commodity, which is why I find it so hard to understand how people can defend the notion that if you create music and get it out there, you have some sort of 'right to profit'. A far more sensitive and reciprocal model for the future of music commerce would be that creators/suppliers have an opportunity to profit - if they can sufficiently impress the listener to open their wallets. This is exactly what a technology like the net is providing right now, but everyone just wants to have a sook.

So, what, musicians are the only people who can't decide how they get paid?

Let me ask you this. So you go in to work today. Your boss calls you in, rips up your employment contract, and tells you that you are going to get paid what he feels like paying you. He's not going to tell you why he's paying that much, he's not going to tell you what he's going to pay you tomorrow. Or even if he is going to pay you tomorrow.

So you go work really hard for 8 hours because you feel that the harder you work, the more you'll get paid. On your way out, your boss takes out his wallet and hands you a $20 for the day's work.

I assume you are OK with this business model.

There's nowhere I can't reach.

Originally Posted by LeHah

They have more money than God. Theres going to be no end in litigation from a money perspective.

While this may be true, my point is that clearly they aren't stopping or even noticeably reducing filesharing through their efforts, and their public image has also gotten worse because of all the litigation. Even if they have money to burn, considering that their problem with filesharing is over money, I don't see the point in continuing a strategy that hasn't really produced results.

Cause let's face it, if anything, filesharing has become even more mainstream thanks to all the hype the RIAA has given it.

This thing is sticky, and I don't like it. I don't appreciate it.

Originally Posted by LeHah

You say all these words - but do you know what they mean? They really don't add up to anything. Its like reading a 6th grader's book report and he used the dictionary, where every third word is improperly used.

Sorry, didn't know I wasn't allowed to generalize whatsoever. Because I'm the only person that's ever done it. Seriously, man, get off the high horse all the fucking time.

How ya doing, buddy?

Originally Posted by Cal

New Line does not need Howard Shore to flog 500k copies of a score in order for there to be a thriving film music industry. Shore does not need to flog 500k copies in order to get rehired. That's ridiculous.

You don't understand the machinations of the film music production industry. Take for example the first LOTR score by Howard Shore.

First, a release has to be cleared with the movie producer, followed by the composer. Composer has to pick a set list of compositions, rearrange them, produce them, conduct the score for the album, approve the mastering.

Now, take something thats years old. Say the recent release of Harry And The Hendersons, which is a phenominal score by Bruce Broughton and hadn't been released to anything but cassette and LP.

Now you have to decide...

a.) Look for archival masters - anything before 1985 is up in the air. Hundreds of masters have been thrown out at a clip. Othertimes, masters are not kept properly - Mad Max: Beyond Thunderdome was saved earlier this year after the only remaining masters were cooked in a kiln and then digitally transfered via a reel-to-reel. (The trick with cooking a master is that after you play it once after that - all the information is lost and can't be played again.)

b.) Rerecord the score. This involves finding the conductor's original sheet, contracting someone to reconstruct missing portions of the score (if there are any), hiring an orchestra, putting down money for a studio / equiptment / recording staff, mastering, linar notes, packaging and distribution.

Now, if you'd really like, I can break down the really small peices and give you prices on hiring an orchestra per instrument, per chair, per session and then balance it against American (union) or European (non-union), plus reuse fees for a rerecording.

You're discrediting level upon level upon level of money and fiscal situations when it comes to sales because film score involves a music label as well as a movie house.

On top of that, sales don't mean anything to a composer. Time and time again, a score doesn't ever get a release. Franz Waxman's score to the 1954 movie The Silver Chalice got released last month; do you think that he suddenly didn't get any work ever again because they didn't release this score for 53 years? That said - you don't know shit, so stop talking.

Originally Posted by Ridan Krad

filesharing has become even more mainstream thanks to all the hype the RIAA has given it.

Rape must be popular because they mention it on the news all the time! That must mean its legal!

I was speaking idiomatically.

Ridan never said anything about its legality, just that it's become more popular, i.e. that the RIAA's efforts to shut down piracy through litigation have backfired. =|

What kind of toxic man-thing is happening now?

Originally Posted by The_Griffin

Ridan never said anything about its legality, just that it's become more popular

Something being popular doesn't make it right though.

Originally Posted by The_Griffin

that the RIAA's efforts to shut down piracy through litigation have backfired. =|

Except when, you know, it hasn't backfired?

FELIPE NO

Again, legality and morality have nothing to do with Ridan's claim.

His point was simply that it has become more popular, partly due to the RIAA's publicizing it through their scare tactics and litigation.

You can't deny that piracy HAS become more popular. I'm not saying that it's RIGHT (speaking as somebody who has downloaded music before), but I'm saying that it's happening more and more. Has it been because the RIAA's brought it into the limelight with their flurry of lawsuits? I don't know. My sister, at least, stopped pirating music years ago because she grew concerned over the possibility of being sued. But for every person that stopped pirating, there's at least two more that I know of that started, and the RIAA hasn't done jack shit to slow it down (and I doubt it can, to be honest).

How ya doing, buddy?

As Griffin says, what I'm talking about is the actual effectiveness of the RIAA at stopping filesharing. They started going after it when it was just Napster, then later Kazaa, and now face a variety of P2P mediums, from Usenet, BitTorrent, and FTP servers, with traditional P2P methods like Limewire being the least of their concerns. This suggests that the RIAA's efforts to stop filesharing, while legally justified and even understandable, are not working.

I am not suggesting that this means that filesharing should be made legal. What I am saying is that all the money that the RIAA is throwing into litigation isn't even noticeably reducing the problem, let alone eliminating it.

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