[Politech] EFF's Fred von Lohmann replies to Politech over RIAA lawsuit [ip]

From: Declan McCullagh (declan@private)
Date: Thu Sep 25 2003 - 00:51:19 PDT

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    Previous Politech message (probably just a temporary location):
    Date: Wed, 24 Sep 2003 18:00:04 -0700
    Subject: [Politech] RIAA responds to Politech over EFF note on lawsuit 
    amnesty [ip]
    From: Fred von Lohmann EFF <fred@private>
    To: Declan McCullagh <declan@private>
    A brief rejoinder seems in order, in light of Cary's letter to the editor 
    responding to my op-ed regarding the RIAA's Clean Slate "amnesty" program.
    First, Cary fails to respond at all to the main point of the piece -- the 
    proposal that the major record labels offer a *real* amnesty to 
    file-sharers in exchange for a reasonable monthly fee. This is what the 
    music publishers opted to do in the face of that earlier scourge of 
    copyright, broadcast radio. Today, ASCAP and BMI manage to divide up a very 
    large pot of money for their members, without insisting on control over 
    what radio stations play or what kind of transmitting equipment they use. 
    Sure beats suing thousands of individuals in a futile attempt to intimidate 
    tens of millions more.
    Second, Cary claims that the RIAA's "amnesty" program provides assurance 
    that repentant file-sharers "won't be sued by any of the major record 
    companies." Well, that's not what it says on the "Clean Slate" description 
    page (see http://www.musicunited.org/cleanSlateDesc.pdf). There, the RIAA 
    merely promises that it will not assist copyright owners in suing you. It 
    does not promise that its record company members won't sue you anyway. If 
    they decide to sue you, they can use DMCA subpoenas to get your name from 
    your ISP, then can subpoena RIAA records to find out whether you signed up 
    for the "Clean Slate" program.
    Third, Cary asks "what would be the rationale -- public relations or 
    legally -- for suing someone who has promised to stop illegal behavior when 
    there are tens of thousands of other targets?" Yet the RIAA is refusing to 
    grant amnesty to anyone who it has already begun investigating (and woe to 
    the unlucky ones who sign the "amnesty" before discovering that they are 
    already under suspicion and thus ineligible). So evidently there is some 
    rationale for suing those who promise to stop file-sharing, since the RIAA 
    is reserving the right to do it. Perhaps to "send a message" as Cary would 
    say. Can Cary promise that no other copyright owners will take the path 
    he's blazing?
    Fred von Lohmann
    Senior Staff Attorney
    Electronic Frontier Foundation
    Subject: Re: [Politech] RIAA responds to Politech over EFF note on lawsuit
    	amnesty [ip]
    From: jason <jaegner@private>
    To: Declan McCullagh <declan@private>
    Date: 24 Sep 2003 21:26:44 -0400
    This gets more interesting (and sad) every day.
    "In fact,they will get exactly what we can provide: a promise that if
    they keep their word, they won't be sued by any of the major record
    companies who happen to be the sole plaintiffs in the current wave of
    copyright infringement actions that seem to have Mr. von Lohmann so
    Followed by:
    "It is true that we can't promise that other copyright holders, such as
    songwriters and music publishers, will not sue participants in our
    amnesty program."
    Doesn't that prove Fred's point?
    The recording industry does make one good point:
    "The irony of all of this is that Mr. von Lohmann only last year
    attacked the recording industry for not suing individual file sharers,
    telling Billboard magazine (and many other publications) that if we were
    really serious "about stopping piracy" we should be bringing "lawsuits
    against the actual people sharing the files."
    I think that's a good point.  If there is a valid fair use application
    for filesharing networks, the creators of those networks should not be
    liable simply because their product could potentially infringe
    copyrights.  However, I think the recording industry is screwing up
    because their targets are overly broad.  The targets should be those
    individuals that are intentionally and knowingly infringing copyrights
    I believe that the RIAA is making a perfectly understandable mistake:
    when presented with a disruptive technology, they're equating profit
    with potential theft.  That nonsequitur precipitates the slippery slope
    that they're currently sledding down.  The people actually stealing
    money from the recording industry are selling burned CDs all over the
    world (and have been stealing music since the 8-track tape).  The people
    being sued by the recording industry might (but probably don't) fall
    into that willful violation category.
    I re-emphasize my belief that the industry has brought this backlash
    upon itself by extending copyright terms for far too long.  When you
    attempt to over-own ideas, don't expect people to take it lightly.
    This is not an unsolvable problem.  But we can't even begin to work on
    it until the copyright-capitalists abandon their lobby+litigate
    mentality and come to the table with their customers to work out a
    Like Hugh said: "Let's come together."
    Your customers are at the table, Mr. Sherman.  Where are you?
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