Chains you can believe in: Obama sides w/ RIAA

I'm of two minds here- one the one side, I think the RIAA is a responsible as anyone for the mess the recording industry finds itself in, but on the other side, I do believe copyright holders deserve fair protections.

mostly however, I'm just surprised to see the obama admin taking the side of lobbyists in general, and in this case, taking an extremely hard line against a defendent who was 17 when the actions in question took place.

http://recordingindustryvspeople.blogspot.com/2009_03_01_archive.html#5771350065718742723

[rquoter]Obama's Justice Department intervenes on side of RIAA in SONY BMG Music Entertainment v. Tenenbaum
In its first opportunity to demonstrate its position on the constitutionality of the Copyright Act's statutory damages provisions as applied to mp3 files having a market value of 99 cents or less, the Obama Justice Department -- staffed by RIAA lawyers in its 2nd and 3rd highest positions -- has filed a motion for intervention and brief in SONY BMG Music Entertainment v. Tenenbaum which attempts to support the RIAA's statutory damages theory.

The brief:

1. relied upon St. Louis, IS & M Ry Co v. Williams, 251 US 63 (1919) a 1919 United States Supreme Court decision which upheld, as against due process attack, a statute awarding statutory damages against a large railroad corporation which were 116 times the actual damages sustained, in cases involving the rail carrier's overcharging of its customers, on the ground that under the circumstances the award was not so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable;

2. relied upon the decision of the US Court of Appeals for the 6th Circuit in Zomba v. Panorama, 491 F.3d 574 (6th Cir. 2007), which held that until such time as the US Supreme Court applies the State Farm/Gore test, rather than the Williams test, to statutory damages, the less stringent Williams standard would be applied, and upheld a statutory damages award equal to 44 times the actual damages, in a case of wilful copyright infringement by a karaoke disc distributor, since 44 times actual damages was less onerous than the 116:1 multiple upheld by the Williams court;

3. conceded that statutory damages are subject to due process review for excessiveness, but argued that the less demanding Williams standard, rather than the higher State Farm/Gore standard, should be applied;

4. attempted to refute the arguments made by the defendant in his brief; and

5. ignored all of the authorities and all of the arguments cited by the Free Software Foundation in its amicus curiae brief.

[Ed. note. (1) Odd, don't you think, that the Government ignored the authorities cited in FSF's amicus curiae brief? Maybe they thought Judge Gertner wouldn't be able to find them, so they'd be better off not mentioning them. (2) Sad that the Obama administration, which purports to be for 'the little guy', supports statutory damages of from 2,100 to 425,000 the actual damages, imposed against 'the little guy', to be awarded to big corporations. (3) Fortunately the courts will probably not be as cooperative, since the Government's brief is noticeably weak and fails to stand up to scrutiny; if that's the best argument, and those are the best authorities, the RIAA's friends can come up with, they're dead in the water on the Due Process issue. -R.B.][/rquoter]

 

a somewhat related discussion here.

[rquoter]How will The Cloud change the way we think about music ownership?
by Nicholas Deleon on March 23, 2009


One of the highlights of last week’s SXSW show, aside from seeing the Austin Crew again (hi, guys!), was when I spent some time talking to a few of the guys from Rhapsody, just like I did last year. The conversation touched a number of topics, but the one I found most interesting was the changing notion of music ownership. That is, now that most of us are at least familiar with streaming, on-demand music from pick-your-service (Imeem, Pandora, Spotify, Rhapsody, etc.), will people in the future still see music as a “thing” that they’ll own, or more like a service that they’ll tap into whenever the need arises? Will people still cling to a finite number of MP3s on their iPod, or will they prefer to have their music on The Cloud, using a device (say, the iPhone) that can call upon any song at will? A sort of, “Shoot, I wish I had that U2 song on my iPod right now” versus, “Here, let me stream that U2 song for you.” And, if people are becoming more comfortable with this type of music consumption, where does that leave traditional, download-to-own services like iTunes and Amazon MP3? The things we think about!

It’s like this: we’re right about at the point where most of us have a smartphone or other device that has a reasonably reliable, always-on Internet connection. As such, we’re right about at the point where a service—the aforementioned ones, or perhaps some new one—can came along and say, “Oh hai! You know, instead of taking your iPod with you everywhere you go, why not just connect your phone to our service? We have every song in recorded history in our database (“Cloud”), and they’re all yours, provided you pay us $15 per month. Think about it: every song ever, in the palm of your hands. That sure beats listening to the same MP3s over and over again, right?!” That’s a best case scenario, of course. While Rhapsody told me the record labels are now much easier to deal with than they were in the past—there’s still a few music executives yelling, “Go away, Internet!”—, we’re still a little bit away from having Everything Ever at our fingertips. On the technical side of things, that also assumes that our Internet connections are, indeed, sound as a pound (aside: I think that phrase needs to be updated!), something that any iPhone-using SXSW attendee will tell you isn’t exactly the case just yet.

But, for the purposes of this here article, let’s assume that all those problems have been solved. Let’s assume that the mobile Internet is fast, reliable and affordable, and that the record labels have opened up their vaults for placement in The Cloud; no technical issues remain. The only thing we have to confront now is the consumer and her listening habits: will they change? Have they already changed? Does Little Stacy, who’s currently in junior high and listens to music via YouTube and Imeem, portend an adult who won’t think of music in terms of CDs and MP3s, but of something that’s “just there,” for lack of a better term? She won’t have a personal music library, in the form of vinyl, CDs, MP3s, FLACs, or whatever; The Cloud will be her library, on which everything ever recorded will reside. The notion of “not having that album” will be totally alien to her; she has everything, always. No, she doesn’t own any of it—it belongs to the record labels, by way of your Rhapsody and Spotify (or whatever)—but it’s always available to her wherever she goes, so why should she care wether or not she “owns” it? Ownership, in this scenario, will become an antiquated concept, no longer applicable to current conditions, and Adult Stacy wouldn’t have it any other way. Nothing’s stopping Stacy from buying a physical copy of an album on some future whiz-bang format, which includes a super-de-dooper high quality copy of the album, but it would be the exception and not the rule. People still go camping (“roughing it”) even though they have fully decorated master bedroom they can sleep in.

But that describes Little Stacy, our hastily invented character who’s currently in junior high; at most she’s 13-year-old. What about Big Steve, who’s 15 years out of college and works in a spiffy office downtown? He still owns his music—in fact, he’s probably just getting used to buying songs off iTunes and the like—and the idea of songs “being there” is sorta weird to him. What if they’re not there? (Big Steve is a glass-half-empty kind of guy; blame the recession.) And even if the songs were there, why should he pay a monthly fee for an entire library of music he’ll never listen to? How is that better than having an iPod filled with only the songs he likes—he loves Danzig—without any garbage pop music getting in the way? A cynic could say, well, long-term, Big Steve is irrelevant, since he doesn’t buy new music anyway, and besides, it’s his kids whom the music industry will be targeting in a few years anyway. Let him “own” all the music he wants, since it’s only a matter of time till he isn’t even on the music industry’s radar. Of course, that completely ignores the fact that, with his fancy corner office, Big Steve has more disposable income to throw at the music industry (and the services we’ve been talking about) than Little Stacy ever will while she’s growing up. To ignore Big Steve, and all the dollar signs he represents, would be foolish. That’s not to say that Big Steve can’t still buy CDs and MP3s, of course, but the question here is whether or not people, in the future, will be comfortable with not owning music. And as people like Little Stacy use the aforementioned services, they’ll no doubt get used to it; it’ll be just another thing they do, like sending thousands of text messages per month or spending hours upon hours on Facebook.

Specific to Rhapsody, yes, you can now buy MP3s from their online store. (Even disruptive technologies and companies like to hedge their bets.) Whether or not that’s the way forward, or merely something done to placate the Big Steves of the world, is what we’re trying to determine. My guess? I hope they have house music in The Cloud.[/rquoter]