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Features: Interpreting Cary Sherman
Posted by Ernest Miller on Thursday, October 17 @ 11:21:58 EDT File Sharing
Recording Industry Association of America President Cary Sherman has written a response in C|Net News to Consumer Electronics Association CEO Gary Shapiro's recent commentary in which he declared that downloading off the Web is neither illegal nor immoral (Perspective: Honest talk about downloads). Following a tradition of clarifying what Hollywood spokespersons are saying (The Annotated Valenti), LawMeme helpfully interprets Mr. Sherman's response:

Last month, Consumer Electronics Association CEO Gary Shapiro took the debate over peer-to-peer file sharing to a new level. In brief, he declared that downloading off the Web is neither illegal nor immoral.
Mr. Shapiro took the debate over peer-to-peer to a new level by actually standing up to Hollywood. The RIAA had come to expect that the consumer electronics industry would meekly permit Hollywood (with an assist from Washington) cripple it. Actually having someone with institutional power stand up to the RIAA must have come as a shock.
This pronouncement--given in a speech at the Optical Storage Symposium and echoed in condensed fashion in a commentary on CNET's News.com--is breathtaking, both because it is so blatantly wrong and because the arguments Shapiro advances in an attempt to justify his conclusions are so transparently specious. Nonetheless, it deserves a response, because people need to know that Shapiro's proclamation, if not a deliberate and outright attempt to misinform, amounts at best to wishful thinking.
"breathtaking" - I still can't believe he stood up to us.
"blatantly wrong" - not in accordance with our talking points.
"transparently specious" - praise from Caesar.
"deliberate and outright attempt to misinform" - knock it off, that's the RIAA's job.
Certainly, there is nothing wrong with downloading per se. In fact, record companies and legitimate online music companies are aggressively promoting downloading as a fabulous way to get more music to more consumers. There is, however, a real problem with the unauthorized downloading of copyrighted material, both legally and morally.
"nothing wrong with downloading per se" - we wanted to kill the Internet, but that wouldn't fly.
"aggressively promoting" - dragged kicking and screaming.
"fabulous way to get more music" - so fantastic we have to add all sorts of restrictions to prevent customers from OD'ing on the goodness
"Despite the assertions of the Justice Department," Shapiro claims, "downloading is not illegal." Actually, it's not "the assertions of the Justice Department" that makes unauthorized downloading illegal. It's Title 17 of the United States Code, which prohibits the unauthorized reproduction, distribution, or digital transmission of copyrighted material.
The RIAA paid good money for those laws, they should know. And, wait a minute, didn't Mr. Sherman himself just say that "there is nothing wrong with downloading, per se"?
It's also a long line of decisions interpreting that statutory provision, in court after court, in case after case. There is simply no doubt that copying and/or distributing copyrighted material on peer-to-peer file-sharing systems without the permission of the copyright holder is illegal, and Shapiro's preference that the law were otherwise does not make it so.
The RIAA paid good money for their lawyers too, and they have been very, very busy.
In an effort to overcome this rather problematic detail, Shapiro turns to the old standby, "fair use rights." While he doesn't explain exactly what these "rights" would permit, he makes it sound as if copyright owners are against fair use, and implies that fair use allows consumers to download anything they want. In fact, copyright owners rely on the fair use doctrine as much as (if not more than) anyone, because so much of what is created may be derivative of another's art.
Strangely, after complaining that Shapiro doesn't explain exactly what these "rights" would permit, Sherman fails to provide such an explanation either. Frankly, I would be very interested in having the RIAA go on record and explain exactly what fair use "rights" permit in their view of things without them simply pointing to 17 USC 107 (which I can read for myself). Of course, that is as likely to happen as Bill Gates releasing WindowsXP under the GPL. We know some things about the RIAA's beliefs. For example, the RIAA does not believe that "fair use" includes personal use copying (such as ripping MP3s and making a mix CD for your car). Otherwise, there would have been no need for the legislative "bargain" know as the Audio Home Recording Act.
As far as relying more on fair use for derivative works, it doesn't mean very much when use of a 3 second clip of music requires a license. Furthermore, there would seem to be a disparity between a large music conglomerate being able to protect its interests intraindustry (you sample my artists, I sample yours) and individual consumers defending their interests. Amazing that Mr. Sherman can both denigrate fair use ("the old standby") and claim to rely on it more than anyone else.
So, we all respect and support fair use. But can fair use justify the uploading and downloading between anonymous strangers of entire copyrighted works of entertainment? No way.
No, actually, we don't all respect and support fair use. What about the Digital Millennium Copyright Act (DMCA), Mr. Sherman? As interpreted, the DMCA effectively prevents many fair uses of works. Can we expect the RIAA to file amicus against the DVDCCA or on behalf of Elcomsoft? If not, your "respect and support" for fair use rings a tad hollow.
You know, I agree with Mr. Sherman, file sharing between anonymous strangers of entire works of entertainment is, and properly should be considered, copyright infringment. But this is the easy case. Why doesn't Mr. Sherman tell us how limited the RIAA really believes citizens rights are? Is it legitimate to make a mix CD for my girlfriend? For my mother? Is it legitimate to use a black felt tip marker to rip certain copy protected CDs? Is it legitimate to violate DRM schemes for personal uses? I have a strong suspicion the RIAA would say, "no."
That card has already been played in a number of file-sharing cases, and the courts have specifically rejected it. As U.S. District Court Judge Marvin E. Aspen ruled just last month in the Aimster case, the idea that "the ongoing, massive, and unauthorized distribution and copying of copyrighted works somehow constitutes 'personal use' is specious and unsupported."
Ah, yes. But what is "personal use," and is it legitimate if it involves "copying"? I don't think that the RIAA believes in the concept of "personal use." If so, why did they fight the advent of portable MP3 players?
Shapiro also turns to the other old standby, the Betamax case, to show that practices initially equated with "piracy" or "theft" have been accepted as fair use. But here again, he neglects to point out that the courts have already considered this claim several times in fact and repeatedly found that peer-to-peer file-sharing bears no resemblance to the facts or law in the Betamax case.
Hey, didn't the RIAA file an amicus brief opposing what the Supreme Court decided in the Betamax case? Why, yes, they did. In any case, the argument Mr. Shapiro makes is still valid. It is a fact that what was once considered "piracy" or "theft" has become accepted as fair use. Furthermore, it was also the case that some courts had supported the idea that home videorecording was "piracy" before the Supreme Court reversed them.
Additionally, the issue in the Betamax case was one of contributory infringement, that is, whether Sony should be liable for the infringement of some of its users. The reason the RIAA opposes Betamax now is because it makes it more difficult to build cases against those who host peer-to-peer file-sharing networks and develop new, oligopoly-degrading technologies. Mr. Sherman also ignores another aspect of Betamax that Mr. Shapiro pointed out: Betamax was actually a boon for the movie studios.
Perhaps realizing that the law as written and interpreted by the courts isn't really on his side, Shapiro devotes the heart of his speech to a passionate if poorly reasoned assault on the very notion of intellectual property. "To make downloading immoral," he says, "you have to accept that copyrighted products are governed by the same moral and legal principles as real property."
Mr. Shapiro's short piece may not be as eloquent as Mr. Sherman would prefer, but this may be one of the arguments that frightens the RIAA the most. The copyright industries love that many people think of copyright as a form of property, no different than real property. Increasingly, however, people are coming to realize that there are many important differences. So-called intellectual property is, in actuality, a form of government-granted limited monopoly. The idea of intellectual property as "property" is based on a natural rights theory that the United States has traditionally rejected.
But the fact is that real and intellectual property are different and are governed by different principles. Downloading a copyrighted product does not diminish the product, as would be the case of taking and using tangible property such as a dress. At worst, it is depriving the copyright owner of a potential sale.
The above is a quote from Mr. Shapiro, though this isn't as clear from the text as it might be. I completely agree with it.
Though Shapiro apparently regards this as a key point, it is actually a distinction without a difference. Let's accept for the moment his assertion that "depriving the copyright owner of a potential sale" does not "diminish the product." In what way, then, is "taking and using tangible property such as a dress" any different? Whether you steal a dress from a store or steal a recording from an artist, you are harming the owner by depriving him or her of a potential sale.
A "distinction without a difference"? I think that Mr. Sherman may need some remedial courses in economics. I believe that most economists would say the distinction between rivalrous and non-rivalrous goods is quite important.
In what way is stealing a dress different from copying a recording? Let me try to make this as simple as possible, since it seems to have eluded Mr. Sherman. If you steal a dress from a store, the store cannot then sell the dress to a subsequent customer. If you copy a copyrighted work, the copyright holder will still be able to sell another copy to a subsequent customer. Is this difference too difficult to understand? Is this a trivial distinction with no economic consequences? Call me cynical, but sometimes I think the RIAA is being deliberately obtuse on these points or perhaps I should say, "transparently specious."
Furthermore, as Mr. Shapiro points out, but Mr. Sherman fails to; not every unauthorized copy of a copyrighted work results in a lost sale.
To argue that the owner of the copyright can replace his intellectual property more cheaply or easily than the owner of the dress is to miss the point. Both owners have been deprived of something of value, and both are entitled to seek redress under the law.
Well, actually, law doesn't work like that. Theft of physical goods is a crime. Depriving someone of a potential sale, per se, is not a criminal offense. Despite Mr. Sherman's protestations, this is an important distinction.
Invoking the First Amendment

Shapiro goes on to contend that it's unfair to compare intellectual property to real property, because unlike intellectual property, real property can be taxed and "can be owned forever." So? Intellectual property royalties can be (and are) taxed, and the fact that the property right isn't for forever makes it even more important that it be adequately protected during its term. Shapiro also argues that, unlike real property, "copyright law must bow to the First Amendment that expressly allows people to use a copyrighted product without the permission of the copyright owner."

If I own a parcel of land, I pay taxes on it yearly, whether I use it productively or not. In fact, one of the reasons it is taxed is to encourage me to use it productively. If I lock a copyrighted work in a vault so that no one may use it, I don't pay taxes. According to Mr. Sherman's argument, land should only be taxed based on the income it produces.
Copyright works should be "adequately protected," but what the RIAA considers "adequate" strikes many as "overreaching."
Leaving aside the fact that the First Amendment "expressly" says no such thing (nor, as noted above, does the fair use doctrine permit free downloading), the fact is that real property rights are no more or less unqualified than intellectual property rights. A peace officer can commandeer your car. A public-works agency can compel you to sell your land. A zoning board can make you tear down your treehouse.
Ladies and Gentlemen, the "bundle of rights" theory of property law in a nutshell. Actually though, so-called intellectual property rights have far more restrictions than real property rights. One reason is that intellectual property is subject to all of the rules above (the department of defense can commandeer your patent, the government can strip away your trade secrets in an emergency, a court can make you tear down your copyright for misuse) as well as "limited times," "originality" and other limits that don't apply to real property. More important, it would be unconstitutional for the government to eliminate all private property. It wouldn't be unconstitutional for Congress to eliminate copyright (within some due process constraints).
However, the intellectual property is "property" argument has too much rhetorical weight for Mr. Sherman to concede an inch, apparently.
The First Amendment argument is a bit too complex to go into here. For more information see this LawMeme article (Law Profs to USSC: Copyright Law Subject to 1st Amend Review) or for a thorough briefing Eldred.cc.
At bottom, Shapiro seems to be saying that abstract concepts aren't as valuable or deserving of protection as tangible objects. (Plagiarists, take heart: Stealing other people's writings is OK with Shapiro, just as long as you don't steal the computer they wrote it on.) Whether or not he really believes this (and given the dependence of his member companies on patent, copyright and trade-secret protection, it's hard to see how he could), his speech paints a portrait of artists as crybaby Luddites standing in the way of global prosperity.
This is a non sequitur. Merit or worthiness has little to do with the distinction between intellectual property and real property. Were that it were so, since the RIAA deserves very little. Plagiarism is also significantly different from copyright infringement. Plagiarism per se is not a crime, but that doesn't make it OK, and I'm not sure how Mr. Sherman makes that connection.
If Mr. Sherman has evidence of Mr. Shapiro's hypocrisy, this would have been a good place to show it.
If Mr. Shapiro was painting a portrait of anyone as "crybaby Luddites" I would think it was the publishing industry he was attacking, not the artists. There is, of course, a long history of publishers using artists' rights as a shield for their own purposes.
What "the creative community" has done to warrant such scorn beyond trying to protect its rights is hard to fathom. The idea that artists want to put an end to downloading or even peer-to-peer file sharing is absurd. All they are asking is that people stop ripping them off.
Again with defending the artists. I didn't realize that the RIAA was now a spokesthing for artists. Oh, wait, they're not. The RIAA represents the recording industry. I think that artists and their organizations are perfectly capable of defending artists' rights. Perhaps the president of the RIAA should stick to defending the interests and views of the recording industry. Of course, it is likely that the recording industry has been acting in ways that warrant scorn.
And make no mistake about it, they are being ripped off, notwithstanding Shapiro's remarkable statement that despite illegal downloading, "music sales are holding their own." Perhaps he hasn't heard about the 10 percent decline in sales last year and the additional 10 percent drop in the first six months of this year. And he must have missed the stories on the layoffs, the cutbacks and all the labels and retail stores that have closed.
So much has been written on this issue. LawMeme linked to a study that found the decreases were the recording industry's fault (MP3s Potential Savior, Not Death of Music Industry - Study).
And, hey, if as Mr. Sherman points out below, the recording industry is embracing digital distribution, won't that result in layoffs and the closing of retail stores as well?
Stripped to its essence, Shapiro's attitude flies in the face of centuries of civil law and practice, as part of which civilized societies grant artists, authors and other creative people the right to own and control the original work they produce, be they paintings, poems, songs or any other form of literary or artistic expression. In the United States, copyright authority is woven into the national fabric. The founding fathers didn't like placing restrictions on the public, but they regarded this particular need with such urgency that they took the unique step of not only inserting it into Article I of the Constitution but also explaining why it was important ("To promote the Progress of Science and useful Arts").
In the RIAA's view the Constitution explains why intellectual property is important, but didn't actually put any real limits on it. You see, intellectual property is important to promote the progress of science and the useful arts, but if Congress' laws don't actually do that, the RIAA does not care, so long as their oligopoly and monopolistic profits are assured.
As far as history is concerned, our common law tradition had strict limits on the extent of copyright. Until just the past few decades or so, the public enjoyed rights unimaginable today. For more than a century and a half, for example, copyright never extended more than 56 years.
Of course, in Shapiro's view, none of this matters, for the real culprits aren't consumers who want something for nothing or hardware manufacturers who don't mind encouraging them for the sake of their own sales. Rather, they're the antediluvian record and movie companies that fail to take advantage of the Internet and then "whine that they 'cannot compete with free.'" In Shapiro's 21st century marketplace, might evidently makes right. Instead of looking to the law, he insists, "The recording industry and motion picture industry should stop complaining so much and consider a more flexible business model."
Consumers = real culprits. If the consumers are the real culprits, why isn't the industry suing them? Too expensive? I don't think so. Direct infringement copyright law is a hammer. If you still think it is too expensive, let lawyers sue on your behalf on a contingency fee basis.
Well, our companies are already doing that, very aggressively in fact. And the increasing availability of music online--in a host of subscription and download services that offer more and more content, in a smorgasbord of different packages, at a variety of competitive price points--also rebuts his claim that the music industry has made little effort to look at new business models that take advantage of the new technologies.
"smorgasbord of different packages, at a variety of competitive price points" - the more choice you want the more you should have to pay
But the fact that record companies are embracing new technologies and the Internet is really beside the point. In a nutshell, what Shapiro is really saying is something like this: Despite what Congress and the courts say, digital stealing isn't really stealing, and therefore it isn't immoral. Moreover, despite what the U.S. Constitution says, intellectual property rights aren't really rights because intellectual property isn't really property. Therefore, even if music piracy really is stealing, copyright owners don't have a right to take reasonable steps to prevent it.
Claims about morality are often distinct from claims of illegality. Nothing illegitimate about that.
As for the U.S. Constitution, it says nothing about intellectual property rights being rights in the same sense that real property rights are. If that were the case, why did Congress need a specific enumerated power to create them? Non sequitur alert: where did Mr. Shapiro's argument claim that the recording industry couldn't take reasonable steps to prevent theft? I think that Mr. Shapiro's argument is that the RIAA defines "reasonable" as getting Congress to pass laws forcing Mr. Shapiro's industry to do what the RIAA demands.
If that sounds like sophistry, it's because it is. Ironically, Shapiro accuses the copyright community of declaring "war on technology." But the only war being waged here is the rhetorical warfare that Shapiro has launched against artists and labels that simply want to protect their ability to continue in the business of creating music.
Sophistry squared. If Mr. Shapiro's argument is sophistic, then Mr. Sherman's argument is sophistry based on sophistry. Ironically, Mr. Sherman comes out against rhetorical warfare. See below. Ironically, the RIAA represents those who market and distribute music, not those who create it.
The last thing we need is more overheated and polarizing rhetoric. Shapiro would do well to drop the destructive diatribes and instead engage in some constructive dialogue. That's the only way we're going to figure out how to better serve consumers, creators and technology companies alike in these challenging times.
Thank you, Mr. "The only reason for the action against Diamond is they are jumping the gun to exploit the pirate market instead of waiting and working toward the legitimate market. What we think will really be damaged and perhaps be killed is the nation’s market for a digital distribution infrastructure - We can’t have a digital distribution that’s commercially legitimate coincide with an illegal market where the same material is available for free. We’re very concerned [Diamond is] going to kill off digital distribution before it’s been born." Yes, portable MP3 players will kill digital distribution. Apparently, a non-polarizing and well-heated bit of rhetoric.
Hmmmm. Constructive dialogue like getting Congress to pass draconian laws forcing Mr. Shapiro's industry to do what the RIAA demands? Is that your definition of constructive, Mr. Sherman?
PS Where does your industry fit in this last paragraph? Why wasn't your last sentence: "That's the only way we're going to figure out how to better serve distributors, marketers, consumers, creators and technology companies alike in these challenging times"?
 
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Related Links
· Recording Industry Association of America
· C|Net News
· Consumer Electronics Association
· Gary Shapiro
· commentary
· Perspective: Honest talk about downloads
· The Annotated Valenti
· 17 USC 107
· Audio Home Recording Act
· Law Profs to USSC: Copyright Law Subject to 1st Amend Review
· Eldred.cc
· MP3s Potential Savior, Not Death of Music Industry - Study
· the more choice you want the more you should have to pay
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Interpreting Cary Sherman

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Re: Interpreting Cary Sherman (Score: 2, Interesting)
by mattperkins on Thursday, October 17 @ 15:06:21 EDT
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"Plagiarism is also significantly different from copyright infringement."

Sorry to go waaaay offtopic, but the concept behind this statement has been burned into the backs of my eyeballs for about three weeks now. I discovered Learned Hand's Nichols decision, the oft-quoted opinion in which the infringement=plagiarism equation was first (?) drawn, in which he writes: It is of course essential to the protection of any literary property that the law cannot be limited literally to the text, else a plagiarist would escape by immaterial violations. (I'm paraphrasing from memory, but I think that's pretty close.)

Once "plagiarism" becomes equated with infringement, Learned Hand's "not limited to the text" policy has to win: an anti-plagiarism law that can't defeat paraphrasings is a useless anti-plagiarism law. The end result is that now, it's not just your paragraphs that are protected but also your "story;" not just your images but also your "characters." In truth, this confusion has fractured the idea/expression dichotomy into a shades-of-grey standard, with no (unprotected) ideas and only various "degrees" of expression. That's pretty much where I see us today.

Can anyone point me to literature exposing this as a problem? I'm kinda half-ass working on a paper addressing the fallacy of idea/expression in light of Nichols and subsequent cases (in between drafting comments for LOC's anticirc. rulemaking and FCC's broadcast-flag thing), but I'd be relieved if someone has already written something like this.

--matt


[ Reply to This ]

Go Mr. Shapiro (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 17 @ 15:24:21 EDT
The xxAA is going to lose on the morality argument and they should know it. They have started making moral ultimatems. They are taking the "high ground" or IPR without even a word of why such rights exist. At least some people give a decent answer. The most condemning thing, however, is that they are worse than any "casual copier" on the planet. They treat their artists like dirt. They treat their own customers like dirt. They've been busted for price-fixing. Before they call anyone "amoral or self-interested" (whether they are or not), I think that they should take a look at themselves.


[ Reply to This ]

Re: Interpreting Cary Sherman (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 18 @ 11:09:20 EDT
"Furthermore, as Mr. Shapiro points out, but Mr. Sherman fails to; not every unauthorized copy of a copyrighted work results in a lost sale."

In my view, this is a critical, CRITICAL point. Although essentially impossible to measure, someone who downloads a song <em>that wouldn't have otherwise paid for it</em> is a *net gain* to the artist, not a loss. Software companies have known this for years, and it's why their cries about piracy don't sound as specious as the xxAA's. The entertainment companies, though realizing that they're really in the software business as well, take a hard line that all unauthorized downloading is theft, as per Title 17. What they don't realize (or won't concede) is that <em>some</em> (unauthorized) downloading is <em>good</em> for them.


[ Reply to This ]

Re: Interpreting Cary Sherman (Score: 1, Informative)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 18 @ 12:39:23 EDT
Interesting rebuttal to this presented on greplaw.


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