Below is an excerpt from a research paper I’ve been working on, and explains some of the documented reasons why the Recording Industry is Anti-Artist, Anti-Consumer, and why their ties in Washington DC will make it difficult to put Constitutional rights back into the hands of citizens. Benjamin Franklin one said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” But we didn’t give up safety in order to gain liberty. It was taken away from us, and we severly risk losing both. Rulers received 30 pieces of silver and allowed it to happen, which is really the worst tyrrany of all. A tyrant, in ancient history, was a ruler who gained power by usurping the legal authority. I couldn’t possibly think of a better word that fits precisely what the RIAA and MPAA lobbies have done to personal liberty, personal freedom, and how they’ve usurped several Constitutional Rights and traditional American freedoms enjoyed by citizens (such as privacy, illegal search and seizures, bypassing private networks in your home, the lawful concept of ‘guilty until proven innocent’, destruction of private property, tthe serving of legal notices without identifying who broke the law (infraction by proxy), unlawful accusations against innocent people, lawsuits against dead people, and others) in order to hold tight control on profits for 20 or 30 “significant doners”. It’s a long read, and covers a lot of ground briefly, but one I think is enjoyable and I appreciate your ear. –ANP
Master of Puppets are pulling your strings
Twisting your mind and smashing your dreams
Perhaps Lars Ulrich, the outspoken drummer from Metallica had it right when he started going after his fans legally, but it was probably due to his record high royalty payment afforded him by his Recording Label, Elektra. Sure, he could blame early leaks of “I disappear” on the fans, but someone in his recording studio was obviously happy to share with the rest of us. Napster, Grokster, Limewire, and others followed the demise of its predecessor file-sharing programs as more and more people tried, learned and mastered P2P (peer-to-peer) downloading. But as music sharing and services became more prominent and popular, they caught the attention of the music industry. Desperate for analog relevance in an increasing digital world, the music industry has repeatedly sought to influence lawmakers for their profit. Rather than adapting their business model from an analog system to a digital one, the Record Industry began doing to customers what they’ve been doing for years to the recording artists: influencing lawmakers to create laws that require both artists and customers to play by the rules to mandate maximum profitability. The RIAA (Recording Industry Association of America) is able to influence lawmakers for their own short-term and long-term monetary gain, and have used the court system to change existing laws to their unfair advantage.
The argument in favor of the RIAA is representation. It’s common belief that every worker needs an organization making sure that their interests are most favored. Laws that are written need to consider the rights of artists. After all, artists are on the road performing. That is their business; therefore, it is necessary to have others “man the forts” so that protecting the artist’s best interests are handled while the artist is absent. But that is not the case.
The Recording Labels, not artists, depend on the RIAA to represent their rights as a political lobby in Washington DC. The reality is that for years, RIAA contributors have been ripping their artists off on a large scale. Artists from the Kingsmen, Peggy Lee, Cheap Trick, The Allman Brothers Band, The Smiths and many others have had to sue their own record labels for royalties that were never paid as agreed. While there are some exceptions, such as Green Day’s first label, Lookout! Records which fell behind on payments in order to stay in business (1), many labels take advantage of loopholes in current contracts and collect monies that they then do not re-compensate the artist. Simply put, those charged with looking out for the best interest of the artists are the very ones stealing the most from the artists.
Guitarist Steve Vai noted on Feb 20th in a letter or support for S.B.1034, which would assure that record companies had fair accounting practices to pay artists as agreed, that:
It is unheard of in our industry for an artist to undergo an audit of a label and not discover a large percent of their royalties unpaid, that’s if an artist can afford the time and money to audit their label. One in every thousand artists have the resources to audit. There are stock calculations that labels make in order to justify “creative accounting”, and when the artist does find outstanding funds that are rightfully due them, labels “negotiate” what the artist will actually receive as a settlement, and most of the time it’s not more than a third of what is found. Artists have very little to no recourse.(2)
Steve Vai would correctly point out that while record companies would not have to charge 15% of the cost for “packaging and shipping” that an mp3 iTunes file would not need (or that it wouldn’t be considered a gross overcharge at best), artists would get paid a lower rate calculated for “special works” if the record company deems digital file songs as a “special work”, rather than the full price “song” rate. This would give the accountants ample reason to adjust the profits, rather than honor the track at full price and pay accordingly. In short, digital products actually hurt the artist because they’re not counted as the sale of a song, and many artists require those royalties to pay down the loan on the record contract. Artists, then, are never able to repay the loan given by the recording industry.
So are the artist’s interests being looked after? Unfortunately, the ability for the RIAA labels to write their own agreements leaves the discovery of creative loophole variables to the person signing the contract. And the person signing the contract is not able to afford an audit, or take the matter to court without the money to hire a lawyer and get proper representation for an investigation.
But the artists are not the only ones targeted by the RIAA. Consumers have long enjoyed “Fair Use”, which allows them to use a Copyrighted work for a specific reason, including duplication and broadcast of parts of a work. With the business accountability in question, we know that the RIAA Labels are making money off of their artists – more than they agreed. But how could the RIAA maximize profits against a public that purchases an album and has the ability to duplicate it? Or are they simply protecting their business? One way to find an answer would be to limit how people can copy something they purchased. After all, copying a CD is illegal, right? No. It’s perfectly legal to do that, still today. While marketing dollars has gone into educating the public that copying a CD or other work is illegal, customers break no law for creating a copy for themselves. The RIAA has not been able to undo that, although they have certainly tried. As a result of failure to rescind the rights of Americans to copy a CD or DVD for their own personal use, the RIAA’s creative thinktank proposed the addition of a new technology that would prevent computers and other devices from copying CDs called “CSS”, or “Content Scrambling System”. That technology can easily be broken by simple reverse engineering “hack” tools.
But under new Federal Laws, brought forth explicitly by the MPAA and RIAA lobbies, breaking that protection is a felony. The ensuing DMCA (Digital Millennium Copyright Act) make that proposal a reality. While it is not illegal to reproduce a work, and it still legally is not, it IS illegal to break the code on a CD or DVD in order to copy that work. In other words, copying a CD was outlawed not because the act of copying the digital content it was illegal, but because the method required to do – decrypting the scramble – is illegal.
The only exception not covered by Copyright is Public Domain, which is where the copyright and ownership expires, and everybody is free to use or share the work.
Public Domain is another fair law that the RIAA has successfully exploited. While originally allowing the original artist a 14 year window in which to profit off his or her creative works, Mary Bono, Walt Disney and Senator Orrin Hatch proposed a new Copyright limitation that would extend the profitability to the life of the author, plus 70 years for personal rights. For the RIAA’s gain, 100 years if they own the rights to the artist – which many of today’s successful acts and those of the last 50 years – are owned by the Labels that make up the RIAA. Artists should have rights to profit off of their music, and this is not disputed.
Nobody would argue the fact that copyright allows people, authors, writers and businesses to keep track of their business and capitalize on their investments. But even as artists live longer, 70 years beyond their death is beyond what anyone dreamed is logical, and to hold the rights to a work for potentially 150 years is not the language used in the Constitution, particularly concerning “limited time” works.
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (4)
In short, The Copyright Term Extension Act of 1998 essentially froze the advancement date of the public domain for older rules. This way, the movie industry (Specifically the Walt Disney Company) could continue to publish their movies and profit off of “classics” when other movies made in the same time-frame would have expired and become public domain, and free to acquire and view. The part that most consumers do not understand is that the Congress, against the rules set in the Constitution, changed the rules of the Constitution to suit the needs of businesses who had contributed heavily to (largely) Democrat Senators, and one very prominent Republican Senator. That senator, Orrin Hatch, has been instrumental in bringing these laws forward
Piracy – The Axis of Evil?
In Mid-October, 2001 – the fires were still burning under the collapsed Twin Towers, and rescue missions were in place to help people trapped under the rubble. New Bills and Acts were being considered, and everybody wanted a part of protecting themselves in the new world of terror.
Clearly, there was enough blame to go around, as Trade Related Intellectual Property rights suggested that bootlegged pop idol t-shirts and knock-off Nike shoes “might be funding terrorism.”(5) The RIAA also jumped in with both feet to make Congress consider allowing the RIAA and their partners to stop piracy at all costs, and intended to accomplish this in the most privacy-evading, unimaginable way. Their method was to monitor people’s computers from outside of their homes, including deleting and erasing files on people’s personal computers should they find material they deem as illegal under the guise of an anti-terrorism bill. If the Federal Government wanted to wiretap citizens to stop terrorism, it would make perfect logical sense for the RIAA to also do the same for their interests, yes? Their argument was that this is a global problem, requiring global reach. The problem here, besides it having absolutely nothing to do with terrorism or Bin Laden hosting a pirate party where everyone swapped music with everyone else in the cave, was that there was no policing the effort EXCEPT how the RIAA saw fit would have been accepted. Had the language they wanted appeared as law, it would have been largely left to interpretation.
The draft bill doesn’t specify what techniques, such as viruses, worms, denial-of-service attacks, or domain name hijacking, would be permissible. It does say that a copyright-hacker should not delete files, but it limits the right of anyone subject to an intrusion to sue if files are accidentally erased. (6)
Of course, they should not delete files, especially since they do not know if the file is just named like a song, or if the person may have obtained legal permission to have the song, or has a similar name. The name of this essay, “RIAA Essay”, could be re-named, “Bon Jovi You Give Love A Bad Name mp3”, and users could have added some high resolution pictures in this report, which would have made it between 3-5MB in size. Under those criteria, the RIAA sought to have the power to limit a user’s ISP connection, stop them from uploading or downloading anything, or to erase the file without determining what it was, or if they had the legal right to possess it on my computer. Later, this sole criteria would allow them to bring John Doe lawsuits (7) to trial without even having to name a defendant, and just serving the owner of the ISP connection. This is similar to giving the owner of a vehicle a ticket because someone driving the car broke the law, but nobody took the time to determine exactly who broke the law and document it. Yet, these accusations held up in court, and still do.
So nobody knows what the RIAA had intended to do had their inclusion been part of the Anti-Terrorism bills . They could potentially go into any network, explore (hack) the contents of any computer that did not have proper firewalls, or bypass if they did, and delete files using powers offered by the Attorney General without penalty, and remain protected under the government. They would have to prove that actual monetary loss was more than $250.00. If they wrongfully delete files, of course, they would not be held accountable, and so the citizen would have been intruded on, suffered a loss, and have no recourse for this law shoved into a bill designed to fight terrorism. Using the law to hack computers under the guise of an anti-terrorism bill is scary, and to opponents, the irony is laughable.
The Industry Will Never Go To the Supreme Court – Unless the case is a clear winner for the RIAA
The rights of citizens who wish to redress using the court system will likely be disappointed. If people were upset with Bill Clinton implementing the DMCA (Digital Millennium Copyright Act) to redefine Copyright lengths, they should also be upset with George W. Bush for implementing the Pirate Act of 2004, which allows the Recording Industry “hack teams” to fish for people using IP addresses and file civil lawsuits against copyright infringers in court.
No President has done more to disarm the rights of citizens than Barack Obama, who has aligned himself with a lifelong friend of the RIAA (Joe Biden) who has implemented a role for a Copyright Czar. As of 2009, Barack Obama has appointed 5 (five) RIAA lawyers to the Justice Department, the latest being Donald Verrilli Jr, who is serving as the United States Solicitor General – the person who is in charge of representing the Federal Government before the Supreme Court of the United States. Any legal position is controlled potentially by a ex-Lobbyist insider who still has strong ties to the Recording Industry. Included in these changes would be the criminalizing of file-sharing, border and passport searches of music devices, and the ISP policing of people’s Internet connections. Further, Donald Verilli successfully used his position as Associate Deputy Attorney General to prevent Jammie Thomas from getting a retrial. Thomas, a mother of 2 who was accused of sharing 24 files, was later sentenced to $222,000 in damages to the RIAA, which was appealed to $1.5 million by the RIAA, and settled for $54,000. Since then, Boston College Student Joel Tenenbaum was handed a verdict of $675,000.00 by a jury for sharing 30 songs – also presided over by Obama’s appointees in the Federal Government.
Let’s put this in perspective. In Maryland, if you sold a child for money or property- no, seriously – the fine for THAT heinous crime is a maximum of $10,000. Mutilating female genitalia. Guess that maximum fine! $5,000! Deserting a minor child – the fine is $100. All those crimes are exponentially worse than sharing a music file, far below the quality standards of a high-fidelity range. How does ONE song at the above rate of $22,500 even begin to justify a higher amount than the *maximum” afforded to a victim of sexual abuse or battery?
Obama also supported raising and awarding up to $150,000 per song for each copyright infringement, which would leave any American suspected and convicted of breaking Copyright law hopelessly destitute, even if their IP was spoofed or hacked without their knowledge or permission. Merely fighting would drain your resources, so the shakedown to avoid utter destitution for near-utter destitution would require that you settle for whatever lesser amount they demand.
Further, U.S. Copyright Czar Victoria Espinel, appointed by Obama, also played an active role in negotiations for ISPs to interrupt access for suspected users as early as 2008. In June 2011, several of those companies will be implementing policing measures on their ISP network(8). Only two years ago did ISPs “emphatically deny” (9) those sort of allegations for fear of customer backlash.
Full Circle Back To The Artists:
In just recent days, Kenny Rogers is bringing a suit against his RIAA label (10) for not paying for digital downloads, Record Club sales and monies collected from the RIAA lawsuits against customers they claim were stealing from the artists. Several artists have brought up the point that while money is recuperated from lawsuits and pirates, the artists are never given an award for their share of what was stolen. If the labels and representatives can receive up to $150,000.00 per song, argue the artists, why does not a percentage of that get applied against their advance on the record contract? The same for ringtones and other uses approved by the label, but not paid to the artist.
Sadly, other artists will never be able to hold their labels accountable for royalties that were never paid, even over decades and a generation later. Lester Chambers (11) from the 1960’s soul group, “The Chamber Brothers” counts himself as an artist whose works were compensated late, if at all, and his hit song was owned, used and profited by the label. As a result, Mr. Chambers has to reach out and hope that a charity(12) will provide his medical and housing expenses that are not covered. Other aging artists who had the misfortune to sign a record contract that focused on royalties (rather than touring) are suffering the effects of being locked into a contract that was designed to rip them off. Some may say that without proper legal representation, this –and any sort of legal malady – would likely be present in an industry. But to offer that as a defense when many black artists like Lester Chambers could not afford, or didn’t know to hire attorneys, this is a further example of how record labels preyed on those who were least to provide resistance or a challenge for more money. Stanley Brostein, who toured with Yoko Ono’s Plastic Ono Band is in the same situation now, as is Robin Sulvester who was a session musician for the Beach Boys, and a live musician for Bo Diddley, Chuck Berry, Del Shannon and others and is waiting a kidney transplant. All contributed to the history of Rock and Roll, and left by their labels who should have paid them. Most recently, the Beatles recouped a €30M settlement, which was the primary cause of the Beatles Catalogue not being available(3) on iTunes for a number of years. Since the industry does not provide health benefits, they are counting on royalties to pay for everyday expenses when they are on the road, off the road, in-between albums or even those times when they are not signed with a label. The contracts prohibit even successful artists from finding out why they are not getting paid, unless they pay upfront and can then go through the motions of a court case to provide relief.
The RIAA does not protect artists, they exploit the artists. The RIAA does not protect the consumer, as they seek to enact unfair regulations and punishments beyond what fits the crime and keeping public works from being owned by private individuals. In fact, the only people the RIAA and other entertainment-based Washington Lobbies protect are themselves. While the RIAA started out as a lobby fighting for equal rights and representation of artists, those artists are not paid fairly, compensated as agreed, or provided additional benefits that artists outside of the RIAA receive. While the RIAA is free to run their business model and industry they way they see fit as it pertains to their artists, the RIAA Lobby should not be allowed to make further laws restricting artist’s rights, or the freedoms of consumers.
- Harris, Chris. “Green Day Pull Catalog From Lookout!Records, Label Lays Off Staff.” MTV.com. 4 8 2005: Web. <http://www.mtv.com/news/articles/1506904/green-day-pull-catalog-from-lookout-records.jhtml>.
- Vai, Steve. “July 18,2004.” Postcards. Steve Vai, 28 07 2004. Web. 2 Apr. 2012. <http://www.vai.com/postcards/postcards-2004/>.
- Hasty, Katie. “Apple Confirms The Beatles Available Now On iTunes.” HitFix. 16 11 2010: n. page. Web. 2 Apr. 2012. <http://www.hitfix.com/articles/apple-confirms-the-beatles-available-now-on-itunes>.
- United States. Legislative Branch. Power Of Congress. Web. <http://www.usconstitution.net/xconst_A1Sec8.html>.
- Klein, Naomi. “Trading On Terrorism.” InTheseTimes. n. page. Web. 2 Apr. 2012. <http://www.inthesetimes.com/issue/25/25/nologo.shtml>.
- McCullagh, Declan. “Could Hollywood Hack Your PC?.” C|Net News. n. page. Web. 2 Apr. 2012. <http://news.cnet.com/2100-1023-945923.html>.
- Robers, Paul. “RIAA Sues 532 “John Doe” File Swappers.” InfoWorld. (2004): n. page. Web. 2 Apr. 2012. <http://www.infoworld.com/t/business/riaa-sues-532-john-doe-file-swappers-970>.
- Sandoval, Greg. “RIAA Chief: ISP To Start Policing Copyright By July 1 .” C|Net News. (2012): n. page. Web. 2 Apr. 2012. <http://news.cnet.com/8301-31001_3-57397452-261/riaa-chief-isps-to-start-policing-copyright-by-july-1/>.
- Kravets, David. “AT&T, Comcast Deny RIAA ‘Three Strikes’ Participation.” Wired. (2009): n. page. Web. 2 Apr. 2012. <http://www.wired.com/threatlevel/2009/03/att-comcast-den/?utm_source=Contextly&utm_medium=RelatedLinks&utm_campaign=Previous>.
- Perpetua, Matthew. “Kenny Rogers Sues Capitol Records Over Royalties.” Rolling Stone Magazine. 14 02 2002: n. page. Web. 2 Apr. 2012. <http://www.rollingstone.com/music/news/kenny-rogers-sues-capitol-records-over-royalties-20120214>.
- Chambers, :ester. Facebook Page. N.p., 12 03 2011. Web. 2 Apr. 2012. <https://www.facebook.com/photo.php?fbid=370824792941499&set=a.100610143296300.1203.100000419446736&type=1&theater>.
- Chambers, Lester. “Donate To Lester.” SweetRelief, n. d. Web. 2 Apr. 2012. <https://www.sweetrelief.org/program/lester-chambers-fund/>.