Judge suddenly changes US copyright status on pre-1972 recordings

There's no copyright on recordings made before 1972 in America. Except now there is, as a judge in California has told Sirius that it needs to pay when it plays such recordings.

Sirius aren't happy:

SiriusXM disagreed. "I think everybody should get paid, and I think everybody should pay," David Frear, the company's chief financial officer, said during a banking conference, as quoted in the New York Times. "But to get there, there needs to be a change in the laws. And it shouldn’t be coming from the bench. It should be coming from the legislature."

You might wonder if David Frear really wants to pay everyone why he chose not to pay everyone, but instead fought a legal case to stop paying anyone. 'I really want to pay but think there ought to be a law compelling me to pay' isn't a coherent position.

The record companies - who, rather than musicians, will pocket most of the cash - are happy:

"It's increasingly clear that SiriusXM, Pandora and other digital music firms who refuse to pay legacy artists and rights holders are on the wrong side of history and the law," Cary Sherman, chief executive of the Recording Industry Association of America, which represents the labels, said in a statement. "It's time for that to change."

The RIAA are charmers, aren't they? Every time a business finds a way to help them hold onto revenue streams in the 21st Century, rather than work with them, they're there, demanding more and effectively calling those businesses crooks.

If Sherman was ever in an accident and needed a transfusion, you suspect he'd be demanding to know where the blood taken from him was and why he wasn't getting the usual donation fee for it.

University of Oregon to RIAA: Let's see your hand

The RIAA has enjoyed something of an easy ride from universities whose students it claims have been illegally filesharing: the RIAA demands names, the universities cave.

Now, though, they've got opposition: the University of Oregon is fighting the request for 17 names; they've got Hardy Myers, the Attorney General of Oregon, to represent them:

“Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,” Mr. Myers wrote last month. “However, that pursuit must be tempered by basic notions of privacy and due process.”

“The larger issue,” Mr. Myers said, “is whether plaintiffs’ investigative and litigation strategies are appropriate.”

Amongst the privacy worries listed by Myers is the question over if MediaSentry, the RIAA's paid-for snoops, should be licensed to carry out this sort of investigation into Oregonians.

Unused to politicians and universities saying "no", the RIAA is having a bulging eye moment:

Cary Sherman, the president of the Recording Industry Association of America, said the industry had seen “a lot of crazy stuff” filed in response to its lawsuits and subpoenas. “But coming from the office of an attorney general of a state?” Mr. Sherman asked, incredulous. “We found it really surprising and disappointing.”

A man who sues people for thousands and thousands of dollars per song suggesting some genuine privacy concerns is the crazy part, then.

The record companies, in an apoplectic response in court, accused the university of having “a political agenda.” They said that it was protecting people who had broken the law and that it was not entitled to raise privacy and due process arguments on behalf of its students.

“Hundreds of universities and dozens of commercial Internet service providers have responded to the exact same subpoenas,” the record companies’ lawyers wrote.

Ah. So, because nobody else was brave enough to stand up to a bunch of multinational companies, that means they must be in the right.

"I find it surprising that Tommy Beedle failed to hand over his lunch money" explained Booger Benson, "as dozens of other year ten students have responded to the exact same requests for cash."

By the way, the admissions late last year that the legal attacks on filesharing had failed to make a difference are being rewritten - now, apparently, it's all meant to be educational:

Mr. Sherman, of the recording industry association, predicted that Mr. Myers’s motion would fail and said the industry’s litigation strategy had worked well.

“The litigation program, as controversial as it is often written up to be, has been very successful in transforming public awareness,” Mr. Sherman said. “Everybody used to think this was legal. Now everybody knows it’s illegal.”

... but are still doing it anyway. Sherman has offered no figures on the proportion of the public who believed sharing copyrighted material "was legal" before the lawsuits started, compared with those knowing it's not now, but it does raise a question. Let's assume Sherman isn't lying in a bid to justify to the record companies why he's pissed millions away on a failing strategy; if "everyone" thought it was legal when the RIAA embarked on the lawsuits, isn't it a bit unfair to sue people for thousands for a practice that was genuinely and generally perceived to be allowed? If, on the other hand, it's fair to sue these people for so much, they must have known what they were doing were wrong, and therefore the educational value of the cases is zero. Which is it, Cary?

'We know we're pissing in the wind' admits RIAA

There's an interesting feature on BBC News Online about download sites and, more importantly, the RIAA's attitude to them. Even while they're attempting to bully universities into blocking all use of file-sharing applications (not just the swapping of copyright material), Cary Sherman has admitted they're never going to stop free music online:

"He said the aim was to bring the proliferation of sites under control so that business were (sic) free to continue to make money.

"Our aim is not to completely eliminate music piracy or illegal peer-to-peer services altogether," said Mr Sherman. "As long as it is within a reasonable amount of control then we will be happy but we are still a long way from that."

Um... hang about a minute - what are you saying? You spent all of last year getting Britney Spears to make a tit of herself with "downloading a track is the same as stealing a CD from a shop" and waving lawsuits about left, right and centre - and now you say you can peacefully coexist with music downloads?

Does this mean that - to use your own organisations metaphor - you'd be comfortable with people stealing CDs from shops, providing there's only a few of them? Is there a formula being held by the RIAA where we can calculate what an acceptable level would be? Three sites? Three hundred? Sixteen thousand tracks available? Two hundred thousand downloads worldwide every day? I'm totally confused, Mr. Sherman.

But it's not just Cary. Hilary Rosen has softened up, too:

"The overriding goal of our efforts to curb illegal internet music trafficking has been to foster an online environment where the legitimate services can succeed."

This is obviously a lie - the RIAA was smashing rocks into Napster's face long before any of their members had even a prototype 'legitimate' service; the policy was always to try and kill online music dead and if Napster has a legacy, it's more in forcing the major labels to accept their days of charging through the nose for distribution, pressing and stocking of plastic circles are numbered.

But we should welcome the shift of emphasis from Rosen, even if it is mealy-mouthed. What it boils down to is that RIAA have apparently realised over the Christmas Pudding and Brandy Butter that they've lost the argument, and lost the battle. Of course, they're not calling off the dogs yet, but, as the BBC reports:

Mr Sherman admitted that the only response to illegal peer-to-peer services was to promote "legal, attractive alternatives that will make consumers want to pay for their music."

'Tis the season to be bullied

What with that vital holiday season coming up, the RIAA have decided that it's time they gave the universities a bit of a kicking.

The Chronicle of Higher Education carries an email sent from Cary Sherman to Graham Spanier, president of Pennsylvania State University. Let's see what they had to say...

Hi Graham. Wanted to send you a note to give you a heads-up that, in the next few weeks, we plan to increase notices of P2P infringement.

This sounds nice and cosy, doesn't it? Spanier is, for those who've missed this, wasting his precious time heading up some pointless committee to "allow" universities to liaise with the recording industry. The idea is to snuggle up to the RIAA in the hope that the next time they crack down on the free flow of information, there may be some scraps thrown to the academic sector so that there will be crawl holes in the legislation given to the RIAA.

As you know, the record industry has been facing steadily increasing piracy on P2P systems and other areas of the Internet.

Wasn't it booming the other day? Thank god its calmed down and is now only steadily increasing.

We've also seen a dramatic drop in CD sales this year.

Maybe you should try putting out some better CDs? Let's face it, the biggest release this Christmas is by Shania, a woman who's told Time magazine she isn't particularly arsed about making music, after all. Michael Jackson says he doesn't like pop music any more. If the people whose records you're selling don't have the heart for it, why would consumers?

As Internet piracy continues to exponentially rise with no relief in sight

Hang about - I thought it was rising steadily, not exponentially? You do realise those two things are different, don't you, Sherm?

and with the critical holiday retail season upon us, we are planning to increase the number of notices we're sending on P2P piracy.

Hang about... is piracy only a problem when its winter outside? Are you saying that its for some reason less important to "lose" sales during quieter periods? That seems rather odd. "RIAA happy to turn blind eye to filesharing during summer lull" is splendid news.

Until now, we've been somewhat circumspect in the number of notices we send and to date have sent a relatively small number of P2P-related notices compared to the large number of infringements we're finding, but we no longer feel that we can afford the luxury of ignoring infringements.

Hang about a minute... infringements you're finding - how exactly are you 'finding' these infringements? We have to say, frankly, we don't believe the RIAA is sitting in its air conditioned luxury with evidence that, say, kids at the university of south dakota are sucking whole Craig David albums out of the internet - laughing as they do so - and not doing anything. We'd suggest, actually, the reason why you've not done anything is because you haven't got anything; which is why we suspect you're sending a letter going "You have never seen the rage of a salaried lawyer from the RIAA" in the hope that universities will panic, and unplug all the computers. In short, you're trying it on, aren't you?

These notices will be sent to the ISP or organization that is responsible for the Internet protocol address from which an infringing sound recording is offered.

Scary for any university which has students dopey enough to use their student webspace to offer MP3s. Mind you, we can only think of the McDonalds Hamburger University that would have such ridiculously low-calibre students. Unless, of course, you're hacking systems?

This will certainly increase the number of P2P infringement notices that universities and colleges are receiving from the RIAA.

Really? Why certainly? This whole habit of second-guessing is getting way out of hand - it's like Iraq, isn't it? You could at least do us the honour of pretending you care whether there's any evidence or not before you act.

Just wanted to make sure you were aware of this before we started sending out the notices. If you have questions about this, please let me know. And please feel free to forward this information to anyone else in the university community.

Just wanted to use you as a conduit for our heavy-handed bullying of the American academic establishment. You might want to throw in some stuff of your own about our might sword of truth or something.

Have a great Thanksgiving holiday, and I look forward to seeing you on December 10th.

Mwah! Mwah! We'll be round then to loosen the buttplug. Until then, don't sit down - love, Cary x.

The full majesty of the law

As the judge in the US case where Verizon is being bullied by the RIAA into revealing private information on one of its customers says that Congress could have made the law clearer, Cary Sherman drops another humorous little doublespeakette into the proceedings: "One of the things we're discovering is that people are not aware that that they are engaging in conduct which is clearly illegal - If you got a letter from the RIAA saying we know that you're doing this, I'd say there's a good chance that you would stop."

Considering the RIAA have done nothing but bleat about filesharing being responsible for all the evils of the world for the last three years (hey, how many Dell PCs do you think Saddam's got in them Presidential Palaces - all running Morpheus twenty-four-seven, I'll bet), there probably isn't an American alive who hasn't got the message that file sharing is at best a dubious hobby. What Sherman actually means is "If we could start firing off threatening letters, I'd bet them code kiddies would cack themselves - then we'd see some unsecure downloading; straight down their big pipes..."

Lets go round again, shall we? Yes, strictly speaking, many music downloads are illegal. But very few music downloads equal any loss in sales. And singling out individual music fans and threatening them with dire consequences is taking a carpet bombing to crack a nut. Do the words "Ineffective PR disaster" feature in your 2002-03 year planner anywhere?