1.29.09 MORE RIAA BS

As mentioned a couple columns ago, the Recording Industry of America has dropped (or at least claims to have dropped) it’s five-year-long campaign of suing and shaking down people who may or may not have downloaded music in a manner that may or may not be illegal. One reason I think they’ve backed off, other than the fact that the lawsuits were a really stupid idea that didn’t work, is that things are getting sticky for the RIAA in a couple of court cases.

One of these cases, SONY BMG v. Tenenbaum, is heating up in federal court in Boston. The defendant is represented by attorneys from Harvard’s Berkman Center for Internet and Society, who appear to be a little sloppy (badly botching some basic subpoena procedures) but also wildly creative. They’ve convinced the judge to order some upcoming arguments to be webcast.

This was pretty shocking, because federal court proceedings are rarely, if ever, filmed or broadcast. But this decision is part of a trend to opening up the courts to TV cameras. As you may know, there’s been considerable debate about televising court proceedings for as long as there’s been television, and the opponents’ reasoning has become increasingly thin and their arguments increasingly shrill. As the OJ Simpson trial coverage proved (I think), televising court proceeds can go a long way in demystifying the legal process and educating the public in the finer points of procedure and evidence. And IMHO these positives wildly outweigh any of the negatives.

So this federal judge in Boston orders that the argument can be webcast, stating that the matter was of interest to a lot of people, countering the RIAA’s arguments that defendant’s attorneys would use the webcast to “increase their notoriety” by pointing out that the RIAA’s admitted strategy in these lawsuits is publicity of the “dangers” of downloading. Like, the RIAA wants to use the courts as a vehicle for scary press releases, but wants to shut the door when reality rears its head.

In other words, the RIAA wants you to be afraid of being sued, but it sure doesn’t want you to think about it much beyond raw, primal fear. Like the great and powerful Oz, the RIAA doesn’t want you to look behind the curtains .

The judge also had a particularly memorable long-view observation, one that is going to resonate in courtroom camera arguments for years to come:

In many ways, this case is about the so-called Internet Generation -- the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. . . . It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if almost exclusively, over the Internet. . . .

The RIAA hustled to the federal appeals court to stop the webcast, and the trial judge has postponed the to-be-filmed hearing while the matter is decided upstairs. The RIAA’s reasons for want to keep the arguments off the web aretruly mind-boggling.

For one thing, they appear to be afraid that their expensive lawyers precious arguments will get mashed up and reposted on the web, making them look even more ridiculous than they do in real time. Really. That’s their argument:

Petitioners [the RIAA] are concerned that, unlike a trial transcript, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioners' case.

Where does one begin? First, it’s not “unlike a trial transcript”. It’s just like a trial transcript, except with a movie added on!!! Second, statements are taken out of context all the time everywhere. Most of the RIAA’s legal arguments are built upon taking previous court decisions out of context, so it’s a little hypocritical to complain about someone else using the practice. Third, people could, hypothetically, mash-up the Harvard lawyer’s arguments, too. They won’t, though, unless the RIAA pays someone to do it. Why not? Because people don’t hate the Harvard lawyers. People do hate the RIAA, though.

Finally, if the RIAA was worried before about having their lawyers’ performances mashed up and stuck up on YouTube, they should be mortified now. By making this whiny, spurious argument, the RIAA is now in the sights of every good-time video artist in the universe. After they lose their silly motion and the argument is webcast, we’ll be able to sit back and enjoy a deluge of cruel, hysterical, creative commentary. Viva la internet.

1.15.09 RE APPLE

Breaking the Chains

Nice weather we’ve been having! Last month our Sell Your Music Online panel had to bail out on the monthly CRUMBS Night Out at the Linda Norris Auditorium. It was the night of what will forever be known as The Great Ice Storm of 2008—need I say more?

But mourn not, we’re got the old team back together for the January edition of CRUMBS Night Out, so come out to the Linda (339 Central Ave., Albany) next Thursday (Jan. 22) and hear a set from the always-intriguing Scientific Maps (myspace.com/scientificmaps) at 7 PM, followed by the panel—including moi, jazz god Brian Patneaude, and the mandolinear digi-guru Matthew Loiacono—explaining what you need to know about getting your tunage up and out on the Internet. It’s free. My trusty co-host Paul Czech won’t be there because he’s attending the big MIDEM music conference on the French Riviera, which he’ll be reporting about at the February CRUMBS session.

Speaking of Matthew Loiacono, you should know that he’s publishing a weekly e-newsletter, The Weekly Wahhh, full of helpful hints about the world of Internet music. Matthew knows as much about this stuff as anybody anywhere; he knows what happened five minutes ago and has a pretty good idea of what’s gonna happen tomorrow. You can sign up for the newsletter at his Web site, www.heartstack.com.

The big news this week is that Apple’s iTunes store is changing a couple of its more controversial aspects, and all for the better. First, it’s finally ditching the DRM (digital rights management) goo that encumbered all of the music it was selling. Apple’s DRM, which the major labels apparently forced Apple to stick on the music, restricted how many devices you could put your music on. Say you replace your MP3 player, get a new phone, stick your music on a new laptop or storage disk—at some point your iTunes music will just quit on you, and won’t load up on any new devices.

DRM is universally and vociferously hated by folks like me, but it’s not clear it’s ever really bothered normal people much. Over a year ago, Amazon launched their DRM-free MP3 store to a lot of fanfare in the technorati press, but it hasn’t affected iTunes’ market domination at all. Huh. What explains this? I can’t imagine people just don’t care that their music is tethered, I prefer to think that people just don’t know yet that their expensive digital music collections have little time-bombs in them, and not enough time has gone by for the DRM to click in. We’ll see. Maybe.

More immediate important changes to the iTunes store is the goosing of the files, which will now be offered at a higher quality 256kbps, which will take up more room on your iPod but will sound much, much better than your old 128’s or 192’s.

Finally, something that’s gonna change online music selling forever: Apple’s finally ditching the uniform 99-cents-per-track pricing, and introducing a three-tiered price structure. Labels and artists selling on iTunes will be allowed to sell tracks at 69 cents, 99 cents, or $1.29; expect back-catalog tracks to go for the lower price and big hits to go for the higher. Or something like that. I’m guessing we’ll also see an uptick in the number of free tracks and of targeted and limited price reductions (like “get the new M.I.A. track for 69 cents for the next hour”) as well.

I think this last move will open the floodgates to innovative pricing across all of the music-sales platforms on the Web; lots of online musicians have been fooling around with different price-points (including pay-what-you-will “tip jars”) for a couple of years, and that only makes sense. If you wanna get all economic about it there’s no good reason why all tracks should be the same price: you don’t value all music tracks equally, supply and demand is what it is and, the marginal cost of one more track is right around zero.

Anybody see Lawrence Lessig on Colbert last week? He was pretty good parrying-wise, infinitely better than fellow copy-leftist John Perry Barlow’s clueless performance last year. But the appearance highlighted how hard these things are to talk about, and how much Big Media has muddied the waters of rational discourse. Colbert’s ridiculous proclamations, like “copyright is forever” and his anti-remix rants (Colbert, in fact, has been at the forefront of encouraging and posting remixes of his own show) simply aren’t susceptible to witty, cutting repartee. Or maybe Lessig just isn’t equipped to deliver the verbal body-slam that counts as a score on Colbert.

That being said, Colbert did seem, at least to me, especially aggressive and unforgiving. Whether he was intent on putting Lessig through his paces, or talking tough to satisfy his bosses at Viacom, who knows? I’d like to think he’s immune to that sort of thing. Maybe not.

12.31.08 SO SUE ME

This article originally appeared in the 12/31/08 issue of Metroland.

Last week the Recording Industry Association of America announced that it was ending its five-year reign of terror against its own customers. Yes, the RIAA decided that it was going to stop suing people that its “investigators” had “detected” making music files available for others to download over the internet.

Since 2003, the RIAA has jammed up over 35,000 people, college kids, mostly, for using peer-to-peer online services like Limewire and Grokster to acquire music. Letters were sent demanding quick “settlement” payments of three or four thousand dollars or else face a legal hell of scorched-earth litigation from high-priced, far-away law firms, with the downloaders’ potential liability often in the millions. Legally, the RIAA’s claims have always been on shaky grounds, but the combination of an insane imbalance of legal resources, a rational unwillingness of people to be legal guinea pigs, and a few lazy judges has kept the RIAA’s extortionate scheme viable.

So why has the RIAA pulled the plug? Well, maybe it determined that this was a really stupid idea to begin with. Here's an industry with precipitously falling sales, holding on to some romantic notion of relevancy left over from the '60's and 70's, and now finding itself universally reviled for its bullying and arrogant behavior. Plus, the lawsuits were not working anyway, as more song files than ever are being moved around the internet for free, and probably even more are being moved around the so-called “sneakernet.” Like the 40,000 songs on the hard drive a friend just made me borrow a weeks ago. Like the DVD-R with 1500 obscure 60’s tracks another friend mailed me a few months ago. Maybe the RIAA just needs a hug. And a new business plan.

Maybe the RIAA is falling apart. With member companies hemorrhaging money and with stock valuation tanking, perhaps the notion of mass lawsuits against the general citizenry, which reportedly cost a lot more money than they bring in, is seen as an expendable and imprudent business strategy. There have been rumors for months that EMI, the smallest and most vulnerable of the major labels, was angling to leave the RIAA for just this reason.

Maybe the RIAA sees the door closing. After five years of an essentially free legal ride, there are a couple of cases out there where the victims are fighting back, with the help of organizations like Harvard's Berkman Center and the Electronic Frontier Foundation. In these cases, the judges are finally taking hard looks at the legal issues involved, as well as the fundamental fairness of the RIAA’s lawsuits. Interesting, the RIAA has not said that it will seek to discontinue any of it’s ongoing lawsuits, and it should be noted that for any lawsuits in which a defendant has responded with a court filing, the RIAA can’t unilaterally end the case anyway. All it takes it one or two adverse rulings, and the RIAA’s cruel and ridiculous playhouse falls apart. And then the class-action attorneys, representing the 35,000 victims, move in, and suddenly there’s a new sheriff in town.

Of course, we could consider the RIAA’s stated reasons for discontinuing the lawsuits, although this should be the avenue of last resort. This is an organization with an historically tenuous relationship with the truth. In announcing the end of the lawsuits, RIAA spokesman said no new lawsuits had been filed ”in months” when in fact new suits had been filed regularly right up to mid-December. Another RIAA gasbag said the now-abandoned lawsuit strategy were the industry’s “only option,” a typically oblivious observation from a group of companies that failed to develop a digital strategy, engaged in price fixing and payola and copyright abuse and are now staring down a long tunnel of almost-certain and soundly deserved continued decline.

Now, the RIAA claims that it’s “changing direction,” and will somehow work with your internet service companies (ISP’s) who will “help” the RIAA police suspected downloaders. Word is that some kind of deal is being hammered out with the “assistance” of New York AG Andrew Cuomo.

As there’s been no official word from Cuomo or any ISPs on this yet, we can only rely on rumor and speculation, but rumor and speculation come from somewhere, right? The talk is that Cuomo’s leaning on the ISP’s to implement some sort of “3 strikes” policy, where your internet connection will be disconnected if you are “suspected” of downloading too much stuff. Exactly how and who determines this is unknown. Will your activities be monitored? Well, apparently yes, somehow. And then what kind of due process will you have? Who knows? Like Santa Claus, your ISP will know if you’ve been bad or good, so be good for goodness sake or no internet for you!

This is ultimately scarier that 35,000 random lawsuits. This is serious. For all his faults, former AG Eliot Spitzer blew the doors off the major labels’ payola practices, and used the penalty money to create a massive music fund which has significantly enriched our culture ever since with grants, commissions and awards to musicians and music organizations. Why then is Andrew Cuomo coddling the same industry by (allegedly) strong-arming ISP’s to be the music industry’s enforcement cops? Is this what we pay him for? Doesn’t he have better things to do? Like, I dunno, fight crime?