[Politech] EFF's Templeton and Cohn reply to a mild defense of the RIAA [ip]

From: Declan McCullagh (declan@private)
Date: Wed Oct 29 2003 - 21:53:04 PST

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    Date: Tue, 28 Oct 2003 10:44:13 -0800
    From: Brad Templeton <brad@private>
    To: Declan McCullagh <declan@private>
    Cc: politech@private
    Subject: Re: [Politech] A mild defense of the RIAA and "anti-piracy" caucus 
    In-Reply-To: <>
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    On Tue, Oct 28, 2003 at 09:25:16AM -0500, Declan McCullagh wrote:
     > [This is not merrely flamebait. Czarina may be wrong, but I know her well
     > enough to say she honestly believes this. :) --Declan]
    Nor should it be.  Let me say as chairman of the organization that has
    been most prominent against the RIAA that largely we agree with her!
    We're not particularly fond of the word "stealing" to be applied to
    the civil tort of copyright infringement, but that doesn't mean that
    ripping off musical artists is right.  It's not the same as literally
    walking into a store and lifting physical goods, but creators nonetheless
    deserve to be compensated when people use and take their work.
    Naturally the RIAA and MPAA portray this as about stealing, and even
    pretend it's about stealing from the artists.  (Though frankly, through
    their abuse of oligopoly power, they are better at it than Napster
    users ever were.)   And indeed, some people out there are simply out
    to get all their music without paying, and Czarina is right to condemn
    We're involved not because music should be free, but because technology
    should be free, and the RIAA has taken upon itself an attack on
    technology.   We're involved because the only future the RIAA and MPAA
    see is to put digital and legal walls around all media, and controls on
    all players of media including all your general purpose computers.
    We're involved because they pass laws like the DMCA which encourage
    companies to threaten lawsuits against students who publish that holding
    the shift key down when you insert a CD into a Windows PC will disable
    the copy protection.
    The RIAA's answer of DRM is wrong, so we're looking for better answers.
    Since it's clear the public will fileshare -- right or wrong -- regardless
    of what is done, it seems the only answer is to find a way to get
    creators compensated when this happens.  To truly rewrite copyright law
    to match the realities of the digital age and give those rewards
    to the creators as is intended.
    We welcome other answers as well.  But the "answer" of DRM and the
    DMCA and proposed rules like the CDTPA, Broadcast flag etc. is no
    answer in a free society with free technology.
    Date: Tue, 28 Oct 2003 18:24:42 -0800
    To: Declan McCullagh <declan@private>
    From: Cindy Cohn <cindy@private>
    Subject: Fwd: Re: [Politech] A mild defense of the RIAA and "anti-piracy"
      caucus [ip]
    Cc: dave@private
    Hi Declan,
    I saw the note on your list chastising those of us who believe that the 
    RIAA's litigation crusade is wrong.  The writer seems to assume that the 
    only reason anyone might oppose the RIAA is because they don't want to pay 
    for CDs.  While it's certainly true that part of the reason that there is 
    so little public sympathy for the recording companies is due to the sense 
    that they have been ripping off music lovers and artists for many years, 
    that's really a relatively minor issue in the debate.
    But it reminds me of several other comments I've seen since the lawsuits 
    started in September. The comments that go a bit like this:
    *If it weren't for the privacy and due process violations in the subpoena 
    *If it weren't for the RIAA's blatant forum shopping in trying to issue all 
    subpoenas from the one jurisdiction that has authorized them;
    *If it weren't for the fact that the record studios started off by blindly 
    suing hundreds of people without contacting people first or doing even 
    rudimentary investigation to see if they have their facts correct (an RIAA 
    spokeswoman previously stated that "when you go fishing with a driftnet 
    you're going to catch a few dolphins;"  it seems they've changed their 
    fishing habits somewhat belatedly in response to pressure from Senator 
    *If it weren't for the fact that the RIAA and/or the ISPs who are being 
    forced to respond to the subpoenas are plainly making mistakes (EFF is 
    handling another mistaken identity case, Fonovisa v. Ross Plank, in Los 
    *If it weren't for the fact that the recording companies are urging poor 
    individuals like Brianna LaHara12-year-old  and Lorraine Sullivan to run up 
    their credit cards to pay thousands of dollars to multinational 
    corporations that routinely drop hundreds of thousands on a single media 
    splash for a pop starlet;
    *If it weren't for the fact that the law allows the recording companies to 
    threaten people with millions of dollars in damages for, at most, sharing 
    hundreds of dollars worth of music;
    *If it weren't for the fact that the recording companies are suing parents 
    and others for the acts of their children and other members of the household;
    *If it weren't for the fact that artists aren't receiving an additional 
    penny of the money collected;
    *If it weren't for the fact that the money collected will not even remotely 
    pay for the lawyers hired to engage in this crusade, much less make up for 
    the record companies' claimed lost revenues;
    *If it weren't for the fact that even the RIAA agrees that these lawsuits 
    won't solve their problem with P2P or even make a dent in it;
    Setting aside all of those pesky issues, don't the record companies have 
    the right to sue their customers and fans?
    While this question is probably very interesting to those who sit above the 
    fray, it seems a bit beside the point to those of us who are answering 
    calls and e-mails from frantic people who suddenly see their entire life 
    savings, college funds and businesses at risk as "collateral damage" in the 
    record industry's p.r. campaign.
    Whether or not the industry's move is legal or even moral in some abstract 
    way, it is not OK in practice.  And it's even more wrong when they have the 
    answer to their financial woes in their own hands and simply refuse to 
    implement it: offering blanket licenses to individuals similar to the ones 
    they offer to radio stations.
    While I strongly agree that artists should be paid for their work, I 
    strongly disagree with the presumption that the only reason one might 
    disagree with the recording industry's current tactics is because one wants 
    music for free.  There is much more here, both legally and morally, and it 
    encompasses core questions about the direction we're heading as the digital 
    revolution continues. Even if we were to believe the recording industry's 
    claims that infringement on peer to peer network is the source of its woes, 
    are we going to let their concerns take away our privacy, prevent 
    anonymity, truncate our due process rights, determine future technological 
    innovation and force people into the awful choice between paying for school 
    lunch and getting rid of a lawsuit with outrageous damages assessed for 
    relatively small injuries?  The questions are important and deserve more 
    than just "it's just like shoplifting" as a response.
    Subject: RE: [Politech] A mild defense of the RIAA and "anti-piracy" caucus 
    Date: Tue, 28 Oct 2003 12:49:50 -0500
    Thread-Index: AcOdbhStQENqN2rPS+SAOlIHe5JMIwACzxSw
    From: "Powers, Jamie" <JPowers@private>
    To: "Declan McCullagh" <declan@private>
    Cc: <czarina@private>
    X-VBS-Filter-Version: 1.14 (well.com modified) (smtp)
    Why the denigrating cute smiley (equivalent to an online 'wink') when 
    indicating Czarina "honestly believes this?"  Its as if some child were 
    mentioning the boogeyman.  Her point seems simple, direct and rather 
    irrefutable - downloaders don't appear to consider or care to consider the 
    consequences of their actions.  And the re line you inserted "mild defense 
    of the RIAA" is almost misleading - she was pointing out that taking 
    property without justification is problematic.
    Maybe its my advancing age.  I'm defending one of the RIAA actions right 
    now, have worked in IP for over a decade and remain amazed at the utter 
    absence of any sound rationale being offered for why one has a right to 
    download a popular song without paying for it.
    Now fighting for P2P technology, for the right to avoid information 
    control, and for the ability to move data without needing a central 
    authority to approve it, are all compelling reasons we should have robust 
    non-regulated file sharing tools available.  But it seems as if file and 
    data sharing (the concept) is being wrapped around music file sharing (the 
    practice) and to maul a metaphor, that mutt of a dog just don't hunt.
    It is intriguing to discuss this issue with those supporting music file 
    sharing who don't seem to make a connection between what they take when 
    they copy.  Most seem to see it as the song has been created, the 'costs' 
    recouped and the file somehow now ripe to be shared freely.
    I've always found your views interesting, the service great but just 
    thought the denigration of her post not merited.
    Jamie Powers
    Data Rights & Privacy Advisors, LLC
    Date: Tue, 28 Oct 2003 11:55:59 -0800
    From: Seth David Schoen <schoen@private>
    To: Declan McCullagh <declan@private>
    Cc: Czarina <czarina@private>
    Subject: Re: [Politech] A mild defense of the RIAA and "anti-piracy" caucus 
    Message-ID: <20031028195559.GG10941@private>
    Declan McCullagh writes:
     > Date: Wed, 22 Oct 2003 10:23:33
     > From: Czarina <czarina@private>
     > To: Declan McCullagh <declan@private>
     > Reply-to: Czarina <czarina@private>
     > Subject: Re: [Politech] Yet Another Congressional Anti-Piracy Caucus forms
     > [ip]
     > Declan,
     > We will need as many anti-piracy caucuses, group, etc, until people stop
     > stealing from artists.  Sure, music and software should be free, but so
     > should food, water, and electricity.  However, if I walked out of Safeway
     > with foodstuffs and didn't pay for them, I would go to jail, and no one
     > would hesitate to call it stealing.
     > Piracy hurts everyone in the industry.  It isn't right to steal music just
     > because YOU feel that Madonna, Eminem, and Michael Jackson, et al "have made
     > enough money".  Do they make a ridiculous amount of money for what they do?
     > Of course, but that doesn't make it right to steal.  How would these pirates
     > feel if someone with less money/success than they did, decided to steal
     > their work and property because "they made enough money".
     > Yes, I am sure that music company CEO's and the artists won't feel it, but
     > remember the piracy hurts the little guy, people in the same socio-economic
     > groups as the ones stealing it.  If you can afford a computer, you can
     > afford a CD.  Quit being so damned selfish and cheap !!
    I bought two CDs last night and three earlier this month for a total
    expenditure of around $70 (as much as possible of which I firmly hope
    went straight to Godspeed You Black Emperor! and Noe Venable).  I have
    never shared the contents of any of my hundreds of CDs in a
    file-sharing network.
    How many more CDs do I have to buy before I get to complain about insane
    copyright policy and technology regulation?
    Seth David Schoen <schoen@private> | Very frankly, I am opposed to people
          http://www.loyalty.org/~schoen/ | being programmed by others.
          http://vitanuova.loyalty.org/   |     -- Fred Rogers (1928-2003),
                                            |        464 U.S. 417, 445 (1984)
    From: Don Singh <don.singh@private>
    To: "'declan@private'" <declan@private>
    Subject: FW:[Politech] A mild defense of the RIAA and "anti-piracy" caucus
    Date: Tue, 28 Oct 2003 13:30:22 -0500
    MIME-Version: 1.0
    this is our response to Czarina....I guess you could call it a 
    What if Peer to Peer 'Wins'?
    October 24, 2003
    Lets take an honest look at things for a moment here. What is the worst 
    thing that could happen if peer to peer were to eventually overtake the 
    recording industry and bankrupt them all, as the RIAA claims will 
    eventually happen if the current path is not deterred.
    So what would happen? Well, music would probably get better as a result. In 
    fact, music would probably improve so much it would eventually be looked 
    back at as a tremendously favorable improvement. If the big business record 
    companies were all eliminated there would be no more music motivated by 
    greed and fortune seeking. The only motivation left to create music would 
    be, well, a love of music.
    Most of the music made available by the large recording interests is not 
    art and the creators and performers are not "art"ists. They are part of an 
    industry fueled by a desire for money. From the author and performer of the 
    music all the way down to the guy that empties the garbage pails in the 
    studio and back up to the president of the record company, every single one 
    of those people is doing a job in search of a good paycheck. None of them, 
    performers included, are doing it because of an inner passion that drives 
    them to create. It is not art; it is music that is mass-produced for profit.
    The loss of current music continually fed at rapid pace would become 
    overshadowed by the sheer quality of the musical works. Do you really need 
    a new song every week if the 'old' song is not played out in 3 days? 
    Quality music has a lasting quality that keeps it from getting old quickly.
    The problem with creating music with longevity is it equals lower sales. 
    Lower sales of course equal lower profits. Recording labels are not in 
    business to bring you art, they are in it for the money and nothing else. 
    Plain and simple, this is capitalism at its finest.
    Capitalism and art mix as well as oil and water. I would like to think that 
    years from now music itself will evolve and grow far greater than it is 
    today as a result of the growing free trade of music among a global 
    community. The music industry might eventually fall, but it surely will not 
    stop the music.
    If anything, the advent of online file sharing guarantees that we will 
    forever have a supply of fresh music. At no time in history has it ever 
    been as easy as it is now to get music out to masses. No longer does an 
    ARTist have to cow tow to the demanding 'recording industry mafia'. The 
    free trade of music through peer-to-peer services is a godsend to any true 
    artist, but it is a detriment to the purveyors of 'made for profit' 
    recordings that have nothing to do with art. These are the guys getting 
    'cheated' and not any creator of art. Don't let the propaganda fool you
    So what do you think would happen if peer-to-peer file sharing 'wins'?
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