State of Mind of The Art

I received a question regarding my last post:

How does this give the RIAA a way to use pre-texting to go after file sharers… can you explain the process to me?

Here’s the reply:

This part is US Code Title 17 sentence two:

“For purposes of this chapter … any reference to copyright shall be deemed to include the rights conferred by section 106A(a)”

And here’s the proposed amendment: “except that the court in its discretion may determine that such parts are separate works if the court concludes that they are distinct works having independent economic value.”

This ambiguously termed and open ended amendment is not accidentally constructed. It allows sterilization of any argument against the proposition, because any use is speculative, and cannot be proved.  The only place this exception will show itself is in a courtroom, where the RIAA and MPAA are lobbying for stronger tactics in chasing file sharers.

If musical works and movies get deemed patents, intellectual property, or trade secrets instead of being covered under Copyright Law, then the RIAA and MPAA will push for the strongest possible protection of their intellectual property.  In an environment like this, they will be using any tactics (including pretexting) to pursue anyone who shares media.  Courts are becoming more concerned about invasion of privacy inside of copyrights.  They don’t have those concerns around giving Microsoft the right to protect source code, or Coca Cola’s formula.

My interpretation is that if a court finds a distinct (singular) musical work to have “independent economic value”, then the work is not necessarily covered by Copyright Law.  Major media companies would have a loophole to argue in court that the albums they own are not applicable to the particular rights of US Copyright Law.  They would then be able to argue for the legal protections that exist for other types of intellectual property.

Between positioning themselves as black box royalty collection for internet media and dismantling our right to share music, these major media companies are trying to to transform entertainment and art into a product.  As their catalogs of media are viewed as products instead of self expression, the right to pursue theft of their property grows.  It’s the same downward trend we see in freedom of speech.

The moral high ground stands with the public in a conversation about copyrights.  Once the conversation shifts into a more patent based or product based context, the legal arguments on how far companies can go to protect themselves shifts.  Altering the context of music and movies changes their legal existence.

Thanks for tuning in!

Spotted on: Passably News:

Have you ever heard of Pretexting? It’s a manipulation technique often used to fool organizations into disclosing private information. In December of 2006, a California Law was proposed: “…any person…obtaining or attempting to obtain…personal information about a customer or employee contained in the records of a business …by making false, fictitious, or fraudulent statements or representations…”. Although the bill was unanimously endorsed by members of the CA Senate, the MPAA stepped in and had the bill killed (see Wired Magazine, “MPAA Kills Anti-Pretexting Bill”, 12/1/06). To put it simply, the MPAA and RIAA demand the right to lie to us in the name of Copyright Protection.

It seems the RIAA and MPAA are willing to allow privacy laws to deteriorate for all of us to protect their profit margins. The question on my mind is: Why should the MPAA and RIAA get special freedoms to prosecute people for file sharing?

Back in 2003, the MPAA and RIAA filed for a permanent Antitrust exemption. The bill was sponsored by Sen. Orrin Hatch. It contains a revision to The Copyright Laws of the US in Title 17 of the US Code. Here’s the revised copyright law of the US according this (thankfully non-passed) bill by Sen. Hatch (the revision is underlined):

For purposes of this chapter … any reference to copyright shall be deemed to include the rights conferred by section 106A(a) except that the court in its discretion may determine that such parts are separate works if the court concludes that they are distinct works having independent economic value.

These are the tactics of the MPAA and RIAA are using to transform entertainment. Creating exceptions to copyright laws and the having legal permissions to lie, cheat, and sue us into buying media for the prices they set, and in the forms they dictate.

21st century entertainment is not based on mafia style coercion by transnational media conglomerates. An outdated business model cannot survive by excusing themselves form laws the rest of us have to follow. Corporations are legally recognized as people. People cannot have laws rewritten for their personal benefit.

Polyvibe Records‘ response is our forward thinking business model. We do not take our artists’ copyrights. Our prices are set by the perceived value of our audience. Our digital albums are 100% MP3. And best of all, we make sure our artists’ are taken care of financially and personally. Taking copyrights from artists, then prosecuting others for sharing them is in the past. The future is ours.

Spotted on: Axiomsun

Limewire was sued recently by the RIAA in yet another attempt to control the public’s consumption of media.  Once again, the RIAA has selected their own interpretation of MGM vs. Grokster.  Although that case defined the infrigement as having to be active by a group or service, the RIAA and MPAA continue to chase any group that offers P2P portal sfor file sharing. They contuinue to claim that organizations like Limewire bear the entire responsibility for how their users behave.  I always love this argument, becuase it;s the same as saying that if you sell a gun to someone, you are responsible if they use ti to rob a bank.  Of course, there’s no constitutional amendment protecting our right to bear file sharing software.
So now Limewire has filed a countersuit, accusing the RIAA of anti-trust violations.  This suit claims the RIAA is trying to “destroy any online music distribution service they did not own or control, or force such services to do business with them on exclusive and/or other anticompetitive terms so as to limit and ultimately control the distribution and pricing of digital music, all to the detriment of consumers.” (Counterclaim, paragraph 26, page 18)

It’s good to see that someone is finally standing up to the transnational conglomerates, although it remains to be seen what will come of it.  The good news about all this is it would appear the balance is finally tipping, and the death knell for the music ‘industry’ is ringing louder than ever.

Check this article:  Sue Google, Not Us, Torrentspy tells Hollywood (spotted on PCWelt)
In a legal reply to the MPAA, TorrentSpy claims a person can find more torrents through Google than you can through a torrent portal.  The argunment goes on to say that since TorrentSpy doesn’t have any copyrighted work on their site, they cannot be held responsible for what people do after they leave their site.
The basis of lawsuits like this is MGM vs. Grokster.  In that case it was decided by the Supreme Court that Grokster actively provided tools and promotion for pirating.  Of course, the Supreme Court also ruled in that case that the act of file sharing, or using P2P software is *_not_* illegal.  They also ruled that unless a manufacturer actively promotes piracy, they cannot be held liable for what people do with the software.

So to review for you, TorrentSpy points you toward people who are sharing files you may want, and that’s all they do.  They don’t suggest you steal stuff, and they don;t promote any method of copyright infringement. According to the Supreme Court, that means they’re not breaking the law.  The MPAA (and the RIAA, too) don’t really care if the Supreme Court allows TorrentSpy to point you toward copyrighted material that’s shared.  They are going to sue us all until we pay what they feel they deserve.  And if that isn’t enough, they twist the meaning of copyright to protect themselves, and not the artists.
Now I am all for the protection of copyrighted works, and I don’t see a problem with the moral issue that somone’s movies or music shouldn’t be free _if there is percieved value._  But if reality is that people are sharing media, and that most people _still_ buy media, then there is a softer hand to be used to convince us to buy stuff.

As an aside for Americans, these big companies are just going to keep sidestepping the law, and continue to force our government to protect their interests, at the expense of ours.

Music

1. The RIAA has sued more than 20,000 music fans for file sharing, yet file sharing continues to rapidly increase both online and offline.  When will you stop suing music fans?
2. The RIAA has sued over 20,000 music fans for file sharing, who have on average paid a $3,750 settlement.  That’s over $75,000,000.  Has any money collected from your lawsuits gone to pay actual artists? Where’s all that money going?
3. The RIAA has sued over 20,000 music fans for file sharing.  Recently, an RIAA representative reportedly suggested that “students drop out of college or go to community college in order to be able to afford [P2P lawsuit] settlements.” Do you stand by this advice? Is this really good advice for our children’s futures?
4. The RIAA said that it only went after individual file sharers because you couldn’t go after P2P system creators. After the Supreme Court’s Grokster decision, shouldn’t you stop going after music fans?
5. Major entertainment companies have repeatedly brought lawsuits to block new technologies, including the VCR, Digital Audio Tape recorders, the first MP3 player, the ReplayTV PVR, and now P2P software. Why is your industry so hostile to new technologies?
6. DRM has clearly failed to stop songs from getting on file sharing networks, but it does prevent me from moving lawfully purchased music onto my iPod and other portable devices.  Unlike the major record labels, many popular indie labels offer MP3 downloads through sites like eMusic.  Why won’t you let fans purchase mp3s as well?
7. The RIAA says that it doesn’t mind if I rip CDs to my personal computer and put them on my iPod.  Do I need your permission to do this or can I legally do it even if you object?
8. Recording off the radio is clearly permitted by copyright law and something Americans have done for over 25 years, but the RIAA supports legislation restricting devices that record from digital radio. Why are you against TiVo for radio?
9. Sony BMG recently implemented a DRM technology that damaged users’ computers.  But for independent researchers’ analyses, this serious flaw may have gone undiscovered. After this scandal, will record labels allow any computer scientist or security expert to examine these products and agree not to sue them under the DMCA?

Video

1. The major movie studios have been enjoying some of their most profitable years in history over the past five years. Can you cite to any specific studies that prove noncommercial file sharing among fans, as opposed to commercial DVD piracy, has hurt the studios’ bottom line in any significant way?
2. Is it legal for me to bypass CSS DVD encryption in order to skip the “unskippable” previews at the beginning of so many DVDs? Why should I have to be forced to watch these ads when I already bought the DVD?
3. Is it legal for me to skip the commercials when I play back time-shifted TV recordings on my TiVo or other PVR? How is this different than getting up and going to the bathroom?
4. Why are there region-code restrictions on DVDs? How does this prevent copyright infringement? Is it illegal for me to buy or and use a region-free DVD player, or to modify a DVD player to be region-free?
5. In several lawsuits, the MPAA has repeatedly said that it’s illegal to make a back-up of a DVD that I purchased.  Why is this illegal?
6. Is it ever legal for me to use software like DVD Shrink or Handbrake to rip a digital copy of a DVD I own onto a video iPod or my laptop? What if I want clips to use for a class report? Or if a teacher wants to include a clip in a PowerPoint slide?
7. Is there anything illegal about copying TV shows I’ve recorded off the air onto my video iPod?
8. If the MPAA-backed “broadcast flag” bill passes, I won’t be able to move recorded TV content digitally to my current video iPod.  Why should TV studios get to take away my ability to lawfully time- and space-shift?
9. Major entertainment companies have repeatedly brought lawsuits to block new technologies, including the VCR, Digital Audio Tape recorders, the first MP3 player, the ReplayTV PVR, and now P2P software. Why is your industry so hostile to new technologies?
10. Hollywood is pushing legislation to “plug the analog hole.” These restrictions won’t keep copyrighted video off of file sharing networks, but they will block me from excerpting a recorded TV show for a school report or using tools like the Slingbox to send recorded TV shows to myself over the Internet.  Why are you trying to restrict these legitimae uses?

Questions posed by the Electronic Frontier Foundation. Reprinted with permission. Spotted on Boing Boing and Digg.