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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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« Notes on Pro-Grokster Press Conference | Main | Questions for Podcast on Grokster Decision »

June 27, 2005

Notes on RIAA and MPAA Press Conference

Posted by Ernest Miller

I missed some of the beginning statements due to the difficulties in connecting to the conference call, but here are my notes on the RIAA/MPAA press conference. I didn't catch the names or affiliations of those providing the opening statements or answering the questions. No exact quotes, just the gist:

Parents will come home and say there is a right way and a wrong way. That is what this is all about. Today is not a panacea. It represents a new day, it is a pivot point. Those who encourage and profit from infringement will be held liable. This means the legitmate market has the ability to take off. Fans and musicians won. We want to work with P2P, embrace technology, start filtering we can enter a better digital age together.

I can't stress enough that a unanimous Supreme Court issued a victory for the rule of law. The other parties in this case created systems that were made for the purpose of facilitating copyright infringment, the taking of music and movies. Taking from the people who put their sweat into making things we enjoy. The constitution protects this, It is in the constitution because they knew we needed this incentive to create something that we might all enjoy. This is a ruling that everyone who creates music, books are entitled to protection under the Constitution. When people create a product to help people take this content, they will be liable for it. All nine justices agree with this principle.

Three fundamental points taken to the court. First, the underlying activities, the downloading of copyrighted works is simply unlawful, plain and simple. Court called it "Garden variety theft." The unanimous decision speaks to the culture. Second, it can't be right under law to build a business on the basis of taking someone's property. You can't build a business that the point is to take other people's property. Unanimously vindicated. Third, it was all about balance. In Sony, the Court sought balance between copyright and technological innovation. Court rejected that Sony was a free pass for technology. Terrific result.

Q: What does it mean for millions of American who use iPod?

A: They're doing it the right way, they're ahead of their peers. There will be more of them.

Q: It is not the technology that the Court was targeting but the business model?

A: Precisely. There is technology out there (Audible Magic, Shawn Fanning) that will make P2P part of this market.

Q: [unintelligble]

A: If you look at the last paragraph of opinion. Court ought to look at summary judgement in favor of Hollywood.

I think the same principles that lead to Grokster and StreamCast will lead to similar decisions against other providers.

Q: If you prevail in lower court, what happens?

A: We're still entitled to full range of equitable relief as well as damages. The point is to migrate this technology to a place where it works with legitimate providers. The infringing has to stop. Audible Magic, Shawn Fanning provide such technology.

A: This is a story that evolved over six years. The last couple of years we've seen the emergence of a legitimate market and clarity about what the law is. We're going to see a transition in the market place. Two years ago there was no legitimate source, today 4% of households use legitimate. That will increase.

Q: What about illegal tech dragging industry into legitimate market?

A: That is exactly backwards. Legitimate alternatives were thwarted by illegitimate options. This decision will change that climate and help legitimate thrive.

Hassle-free, reasonable cost access to content is where we're going. We can be leaders, provided it isn't for free. We can provide these options in the future.

Q: Have you addressed whether you're going to take this back to Congress and what you might do?

A: This decision was rendered today. This was a 9-0 decision, they don't agree what to have for lunch. They've agreed that our content is worthy of protection. I think it is doubtful that this will be rushed back to Congress. There will be hearings, there might be bills proposed, but unlikely anything will happen.

Q: [unintelligble]

A: In a corporate world, folks will respond to this decision and turn to legitimate avenues.

Q: [unintelligble]

A: I'm not sure I know the answer to the question, exactly what the scope of the damages will be?

Q: What about off-shore companies? Do you expect filesharing to go away?

A: No. We have a goal that is reasonable, the legitimate market place will outpace illegitimate marketplace. There will be offshore companies, but our laws have strong international enforcement. And there will be other reasons (spyware, viruses) people will want to switch.

Q: What about designing anti-piracy features up front.

A: What the court is doing is setting a commonsense standard. If you're Apple, you're fine. If you're Grokster and Streamcast, it is clear from any number of things that they are inducing, you're not going to be fine. We don't think it will be difficult to determine what is an illegitimate or legitimate business.

Q: How will you go about going about the process of the message integrated in the culture? How do you speak to the parents or their kids?

A: We are doing this right now, you report on this decision. This is an obligation that we all have. The industry, parents, teachers, Congress, AGs everyone has to do this. We need to band together, work together. We'll go wherever folks want.

Clarity is important. This ruling is about as clear as can be. The ubiquity of the internet has confused people about what is property to be protected and what is not. This decision is so precise that it should have a very powerful impact and disincentive on illegal behavior.

Q: Will there be any difficulty in establishing in district court that Grokster/StreamCast met inducement standard?

A: The opinion speaking for all nine, makes this clear. The district court should reconsider whether summary judgement should be revised. The Court's view of the evidence is that this is a powerful case.

Q: Will this have a chilling effect on new technology or innovation?

A: This will inspire new technology because it is clear about what is right and wrong. This will be a foundation for new creativity on the artists side. They can make music, write screenplays because they know they won't be stolen on the internet.

Some of our friends on the other side like to engage in fear. This is fear-mongering. To say this is a threat to innovation is a gross hyperbole.

Q: The whole Grokster/Napster mentality was payback for ripping off consumers?

A: If you think about buying single tracks, that is an improvement. The fundamental point is that you paid for the thing.

Comments (20) + TrackBacks (0) | Category: Copyright | File Sharing


COMMENTS

1. Name on June 27, 2005 12:30 PM writes...

Q: What does it mean for millions of American who use iPod?

A: They're doing it the right way, they're ahead of their peers. There will be more of them.


I'm not sure I understand what this means. Can you only load music onto an iPod by downloading it from Apple? (don't have/use one myself ... no interest)

Does this also mean that there will be more iPods or more avenues to obtain music?

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2. Precision Blogger on June 27, 2005 12:31 PM writes...

The trouble with this ruling is: it's too narrow. The Supreme court should have said that selling ANY device with intent to help people do something illegal leaves one open to liability. Why should the manufacturers of semi-automatic guns get off so easily?
- Precision Blogger
http://precision-blogging.blogspot.com

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3. Nephilim on June 27, 2005 12:40 PM writes...

--I'm not sure I understand what this means. Can you only load music onto an iPod by downloading it from Apple? (don't have/use one myself ... no interest)--

No. You can load any mp3 or AAC file you have onto your iPod, it doesn't have to be from the iTunes music store.

I think that what the answer was trying to get across is that iTunes music store users were doing it right, and not just iPod users.

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4. Nephilim on June 27, 2005 12:50 PM writes...

--The trouble with this ruling is: it's too narrow. The Supreme court should have said that selling ANY device with intent to help people do something illegal leaves one open to liability. Why should the manufacturers of semi-automatic guns get off so easily?
- Precision Blogger --

Well, then you are opening up a whole other can of worms with that one. Sure semi-auto gun makers would be affected, but by the same token, so would a whole host of other industries that you use or are affected by their use every day.

What good is a vaccination shot without the syringe and needle to inject it into you? How would you chop food to cook without a knife? There's a hell of a lot of stuff out there that are considered neccesities of everyday life that can be used (without much imagination) for illegal purposes.

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5. AnonymousCoward on June 27, 2005 12:50 PM writes...

Perhaps we flip this argument altogether: 1) I purchase music on some media; say, a 'Long-Play record album'. After a few years it's extremely difficult to repair/replace the device on which to play back my original purchase. Am I REALLY breaking the law if I download music that I already have purchased? (Rhetorical question: I know now that I am breaking the law. I'd just like a straight answer as to why I'm virtually forced to do so and that my earlier purchase should be rendered practically useless.) 2) A good corporateAmerican citizen (say, someone's sweet, old Granny) dutifully purchases all of her music from legitimate on-line sites. She downloads them to her hard drive, listens, enjoys; Oh, happy day!! Year or so down the road, her hard drive fails. Unfortunately, since she is only technically proficient enough to manage iTunes, she does NOT have backups of her drive and/or music. Should not, in the interest of rights, commerce, fair play and the American Way, there be some method/process/system for Granny to "get back" her purchased music WITHOUT having to re-purchase it? Just, since the RIAA/MPAA keep chirping about how they are/have been wronged, how about a little focus on the wrongs done to the average, law-abiding consumers?

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6. Nephilim on June 27, 2005 12:51 PM writes...

--The trouble with this ruling is: it's too narrow. The Supreme court should have said that selling ANY device with intent to help people do something illegal leaves one open to liability. Why should the manufacturers of semi-automatic guns get off so easily?
- Precision Blogger --

Well, then you are opening up a whole other can of worms with that one. Sure semi-auto gun makers would be affected, but by the same token, so would a whole host of other industries that you use or are affected by their use every day.

What good is a vaccination shot without the syringe and needle to inject it into you? How would you chop food to cook without a knife? There's a hell of a lot of stuff out there that are considered neccesities of everyday life that can be used (without much imagination) for illegal purposes.

Let's not let our knee-jerk reactions get the better of us, thank you.

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7. Nephilim on June 27, 2005 12:53 PM writes...

Argh, sorry for the DP

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8. Xavier Ashe on June 27, 2005 01:08 PM writes...

To AnonymousCoward: Regarding a crashed HD... what would you do if you broke your CD? Go buy a new one. If you didn't back a backup before it broke, your loss. Just because my car dies doesn't allow me to go steal a new one.

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9. Mike Scott on June 27, 2005 01:10 PM writes...

"Hassle-free" means no DRM (except possibly for watermarks), right? You can back up your legally purchased material, play it on the device of your choice (including ones that didn't exist at the time you bought it) with the software of your choice, make fair-use copies of it such as short extracts, and so on?

Permalink to Comment

10. T.Hartman on June 27, 2005 01:27 PM writes...

-- To AnonymousCoward: Regarding a crashed HD... what would you do if you broke your CD? Go buy a new one. If you didn't back a backup before it broke, your loss. Just because my car dies doesn't allow me to go steal a new one.

The car can be repaired, the CD can not. Plus, there's every indication that the *AA's want to take from you your ability to make backups in the first place. While they offer you a download you can back up, they try to put copy protection on CDs so that you can't back THEM up.

The question is, are you paying for the media or for the license? Is the license necessarily tied to the media? Are you only buying the license to listen to a given song from that particular CD, or from any CD or from any source?

Permalink to Comment

11. jb on June 27, 2005 02:04 PM writes...

I'm with T.Hartman and Anonymous Coward on this.

I have no problem with infringing services being shut down if I am granted a permanent perpetual (media-independent) license for every song/movie i've ever purchased. If I purchase some song/movie, and at some point down the road, the media becomes obsolete or damaged, the license owner should provide me that song/movie in a currently supported form at the cost of the media (a free download would be acceptable).

The point of this argument stems from the following. I've purchased 60% of my music collection multiple (2+) times on multiple media (Vinyl, Cassette, CD, DVD). I have no remorse nor do I believe it to be illegal for me to seek out these particular songs in some P2P network in the event that the original media becomes useless to me (obsolete, damaged etc.).

Now if at the time of purchase I received some license key that allowed me access to a DRM'd copy at any time in the future, with the right to move it (for personal use) onto any device I own, then I have no problem with the P2P networks containing strictly public domain and non-licensed content.

I'm a married male aged 30-39 with enough disposable income to purchase music/video content as I see fit. I believe that at the time of purchase, I've acquired a single non-transferrable license for the said piece of intellectual content. In the bizzarro world, where media companies actually care about their customers... If a movie/album were purchased by an individual on some form of media, and at a later date that movie/album became available in a superior format (dvd -> hd-dvd) the individual (being the owner of a single license for the content) would be able to purchase the new format for a nominal media fee. This will never happen as the Music/Movie companies have made a fortune on planned obsolescence.

Permalink to Comment

12. Bitman on June 27, 2005 02:04 PM writes...

You're buying a license to listen to that piece of media. If the LP breaks, you'll need to buy another piece of media to hear the music again. If a remastered DVDA is released, you need to pay to get a copy of that.

Permalink to Comment

13. Anon2 on June 27, 2005 02:48 PM writes...

Now, the "for life" part is what needs to be defined. We don’t take in to consideration how long a CD will last (they told us CDs would last forever when they wanted us to switch from tapes). They DO have a good idea how long they will last, and it's written into their business model (somewhere I'm sure). They know that when they sell a CD it's got a life of (I'm no expert, just pulling it out of my @$$) 5 to 15 years (correct me if I'm wrong), a good bit less for cassettes, and much less than vinyl and its predecessors (where they learned about the ephemeral nature of media). So they know that when they sell a CD its really a license for the life of the media. But they don’t want us to know this. They wanted us to keep thinking that we were buying a real product, that we owned when we paid our hard earned (well some of us) money for it. Now there going back and correcting us...

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14. elpapa on June 27, 2005 02:52 PM writes...

I still have to read the ruling and the details, but from what I hear the NRA is next in-line to get the shaft..after all if there's a responsability for p2p, there's an enormous one for gun owners and producers. It's curious how the NRA hasn't seen it coming.

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15. Unstoppablechange on June 27, 2005 03:27 PM writes...

Ha.

This changes nothing.

You now have a piece of paper vs. millions of us and our numbers grow everyday.

Way to stifle American technology, give an advantage to competing countries and change absolutly nothing.

We'll continue to pirate and you'll never be able to stop us.

Offer us something worth the price you charge and maybe we'll think about it. Some of us anyway...

Permalink to Comment

16. sveinhal on June 27, 2005 04:00 PM writes...

-- Well, then you are opening up a whole other can of worms with that one. Sure semi-auto gun makers would be affected, but by the same token, so would a whole host of other industries that you use or are affected by their use every day.

What good is a vaccination shot without the syringe and needle to inject it into you? How would you chop food to cook without a knife? There's a hell of a lot of stuff out there that are considered neccesities of everyday life that can be used (without much imagination) for illegal purposes.
-- Nephilim --

Well, the difference is that while most thing -could- be used for illegal purposes, semi-auto guns are -intended- for illegal purposes (except when sold to the military, etc). Noone believes that a semi-auto is designed for hunting deer.

Permalink to Comment

17. Joel M. on June 27, 2005 04:30 PM writes...

The difference between guns and music is that, in the case of guns, the consumer/user has a lobby that acts on its behalf (the NRA), while we consumers of music have no voice. The squeaky wheels gets the grease, and the NRA are loud, squeaky bastards.

Permalink to Comment

18. Jay Currie on June 27, 2005 11:10 PM writes...

Great, informative post!

Souter wrote that for internet file sharing technology to be out of bounds, there must be evidence that its inventors had to be aware of its potentially infringing uses and must make “statements or actions directed at promoting infringement”. So that puts paid to Apple’s “Rip, Mix, Burn” ads. However, it is hardly likely to stop innovation. Instead, the Grokster decision sets out a roadmap for technologists who want to build P2P software.

First, do not induce copyright infringement. No ads, no nods, no winks. Second, make sure there is a non-infringing use for the software. With P2P this can be anything from users sharing their photos online to promoting their garage band or letting the world download their latest software for beta testing. Third make an attempt, however lame, to install a user-option filter which would spot copyright marked songs/movies and make them non-downloadable. You may even ship the P2P software with the “anti-infringing” filter turned on and leave it up to the user to make their own decision. Fourth, make sure that you put a big, honkin’ disclaimer on your site…”The software on this site is to be used for sharing files which you own. It is illegal to share copyright material. If you don’t know, don’t share.”

None of this will be hard for folks as smart as Bram Cohen at Bit Torrent. The big loser today was the entertainment industry's enforcement model. Now we know exactly how to build software which lets the user make the choice thether to honour corporate copyright or move into the digital age.

Time for collective licencing.

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19. Anonymous Coward on June 28, 2005 11:33 AM writes...

To Xavier Ashe from AnonymousCoward: In this scenario, the analog to my hard drive is a BOOKSHELF -- the former virtually guaranteed to fail (MTBF ratings, anyone?) the latter, reasonably constructed, could last several lifetimes. I get it that media can be broken, but I've got 40 yr-old LPs that still sound like new. If I break an LP (or CD), if I don't have a backup copy, I'd likely purchase a new one. What I take exception to is the RIAA/MPAA assuming that I'm a lawbreaker, treating me like one and subjecting me to propaganda regarding same. All the while, I'm supposed to "buy" something intangible like "a download"? Every song downloaded does NOT represent a lost sale (and, aren't we seeing the downloads/sales figures twisted to meet the propaganda?) AND I personally believe that a huge portion of downloaded music (legal and not) will simply be lost due to hardware failure over the next 5-15 years. "People" may not stop to think about this, but engineers and business people do and the ones that work for the music industry certainly know that they're just banking away $$ for the future for any poor schmuck who isn't savvy enough to create backups

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20. Reid on June 28, 2005 05:05 PM writes...

-- To AnonymousCoward: Regarding a crashed HD... what would you do if you broke your CD? Go buy a new one. If you didn't back a backup before it broke, your loss. Just because my car dies doesn't allow me to go steal a new one.

Perhaps the biggest difference is that if you steal someone's car, you're stealing something that was a huge investment to them; if you download mp3s of music that you already purchased, you're getting your stuff back and incurring a cost of no more than a couple of pennies of bandwidth. Digital copies are cheap. Extremely cheap.

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