Creative Destruction

January 2, 2008

Zero Income

Filed under: Free Speech,Popular Culture — Off Colfax @ 4:42 am

This is well past the point of absurdity.

The industry’s lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are “unauthorized copies” of copyrighted recordings.

Now, Brutus and I have disagreed about the subject of the RIAA many a time on these pages. His points are from the view of a copyright holder, which is very well and good for him. Unfortunately for him, however, the RIAA happens to hold and defend many of the exact same views. Therefore, he often sees my assault on the RIAA to be an assault on his own views.

Nothing could be further from my intent. Brutus is not overcharging his customers for senseless drivel. (Parody can be so similar to the truth these days.) Brutus is not preventing his customers from using the limited rights to music that they have purchased derived via the infamous “Betamax” decision. Brutus is not mandating that a higher percentage of profits from music sales go to the RIAA, under the category of Publishing Royalties, than to the musicians and artists themselves.

This has gone to the point where you can no longer even consider a reductio ad absurdum fallacy, for things have already gone beyond where pure absurdity is commonplace. The demonization of individuals who rip a legally purchased CD simply to place it onto their legally purchased MP3 player is what has placed them beyond the absurd.

There is only one legal response to this strategy:


Zero. None. Zippo. Zilch. Nada. Rei. Nol. Ling. And many other words that mean the same as ‘0’.

If you enjoy a specific song by a specific artist, download the inevitable free promotional MP3 from their website and/or MySpace page. If you enjoy a specifc artist, go to their concert and buy their gear. But do not buy the album.

As the above chart supplied by David Byrne and shows, only 1% goes to the artist from a given CD purchase. You can personally hand them a quarter on the street and they will make more money from your personal appreciation than they would via your purchase. Naturally, that would be insulting coming from a personal exchange. It would be demeaning. We give homeless people more spare change than that. So at least offer to buy them a beer.

But do it for them, and not for a record company that will turn around and try to make it illegal to move your own legally purchased recording from a physical format to a digital format.

Of course, there’s always Trent Reznor’s advice:

Game on.



  1. You may have jumped a bit early, as I did with the Lakota secession story. This Techdirt article says that The Washington Postflubbed the story, which hangs on the whisper thin difference between an unauthorized copy and an illegal copy as those terms are used by the RIAA. The fact that some attorney has the temerity to argue that they’re tantamount to the same is simply routine legal wrangling and may not represent the attitude of the RIAA.

    Comment by Brutus — January 2, 2008 @ 3:42 pm | Reply

  2. I don’t think it’s just the one attorney, Brutus. From the RIAA website:

    What the Law Says and What it Means
    If you make unauthorized copies of copyrighted music recordings, you’re stealing. You’re breaking the law, and you could be held legally liable for thousands of dollars in damages.

    Unauthorized, according to this FAQ, is the equivalent of theft. Theft is illegal. This is a natural and logical progression. And while I can admit that I refuse to grant the RIAA attorneys any semblance of restraint, it doesn’t take much thought to change “placing ripped audio files into a shared folder” being the standard for illegality into “ripping the audio files” being the standard. After all, wasn’t that the logic behind the Sony rootkit fiasco? If they can’t rip without us knowing, they can’t share without us knowing?

    Maybe I have jumped the gun. But I’m still smelling the smoke on this one.

    Comment by Off Colfax — January 3, 2008 @ 2:17 am | Reply

  3. As the above chart supplied by David Byrne and shows, only 1% goes to the artist from a given CD purchase.

    Unless I’m seriously misreading something, the chart shows 10% going to the artist. 1% goes to the artist’s union. Still pretty low, especially given that the label profits more than the artist.

    Comment by Dianne — January 3, 2008 @ 1:24 pm | Reply

  4. Although a literal and uncharitable reading of copyright law supports the notion that home taping and ripping mp3s for an iPod are unauthorized copying, I think that most copyright holders consider this type of practice benign since there is typically no loss of sale involved. Whether the RIAA or its attorneys arguing lawsuits hold that opinion I’m not sure. Considering just how unpopular any restrictions on copying are to the general public, it’s possible that such a scorched-earth policy or argument is only intended to get the public to recognize and accept the restrictions the RIAA really wants, which may be less draconian. This is all conjecture on my part, and like Off Colfax, I tend to believe that where there is smoke, there’s fire.

    As to the percentage of profit that goes to artists vs. labels, it’s strange to see how the sale price of any marketable item gets divided up between all the parties involved in bringing the product to market. Having seen personally what goes into that cycle (creation, production, marketing, sale, administration, etc.), I can say with some assurance that the small slice going to creators isn’t unusual even with other goods. The balance might vary from industry to industry, but none of them are especially streamlined. Everybody gets a bite of the apple.

    Comment by Brutus — January 3, 2008 @ 1:46 pm | Reply

  5. Why is unauthorized copying “theft”? If I create MP3 from CD without sharing online, I obviously have not deprived the song owner the ability to use (take profit from) the song in any way.

    And what is the definition of making a copy? I could design a CD player that, for performance reasons, reads the CD in digital way and caches such data in harddisk or memory. Is this copying? I am inclined to think that making an MP3 from CD to play on harddisk (or portable music player) is technically the same.

    Comment by hokuto — January 12, 2008 @ 2:12 pm | Reply

  6. Hokuto writes:

    Why is unauthorized copying “theft”?

    Because copyright law defines it as such. No scare quotes are necessary.

    If I create [an] MP3 from [a] CD without sharing online, I obviously have not deprived the song owner the ability to use (take profit from) the song in any way.

    From the perspective of the copyright holder, that doesn’t matter. You’re enjoined from making copies of any sort. That’s the heart of the dilemma: consumers feel that they have rights to copy when in fact the law explicitly says the opposite. Then there is the question of enforcement. Copyright holders (like trademark and patent owners) police their own intellectual property. They decide what level of infringement to tolerate and what to attack. Traditionally, home copies of legally acquired originals have been of little concern. That appears to be changing, since the prevalence of home copying has led to a lot of file sharing. Clearly, people on opposite sides of the issue see their side as righteous and the other as criminal.

    Comment by Brutus — January 13, 2008 @ 2:12 pm | Reply

  7. You’re enjoined from making copies of any sort.

    Not true. Courts have ruled that, for example, if your portable CD player copies a bit of your song to RAM before playing it (in case you shake the player or something) it’s not a copyright violation. Similarly, there are “fair use” exemptions that allow legal copies regardless of what the copyright holder might want. In the Betamax ruling, recording a television show on a video tape to watch it later was found to be a fair use and therefore not illegal, regardless of what the broadcaster tells you.

    Comment by Doug S. — January 14, 2008 @ 1:23 am | Reply

  8. While I am not a law professional, I have tried some online research. In British law, stealing seems to be (or used to be) different from copyright infringement.

    If I steal something, I have the intent to transfer ownership. If I snatch a CD from a shop, I deprive the store owner from selling that object. If I steal a book from your home, you can no longer read it.

    If I give you a burned music CD, I am making a copy of the same object. While illegal and/or immoral, I have not prevented the music label (or any other rights owner) from printing or distributing the music in any format. The only difference is that you might no longer want to buy that CD.

    Comment by hokuto — January 14, 2008 @ 7:08 am | Reply

  9. Doug S. wrote:

    if your portable CD player copies a bit of your song to RAM before playing it (in case you shake the player or something) it’s not a copyright violation. Similarly, there are “fair use” exemptions that allow legal copies regardless of what the copyright holder might want.

    Doug S. is right, although pointing to exceptions to the rule may lead to an infinite regress. In the nominal case, copyright enjoins people from making unauthorized copies. Copying to RAM for playback may literally be making a copy, but its impermanence makes the issue moot. Fair Use provides conditions under which copying is allowed, but that complex and misunderstood doctrine is trotted out far more often than it’s actually applicable. In a typical relationship between a manufacturer and a consumer (e.g., a record label and a music collector), it doesn’t apply.

    Comment by Brutus — January 14, 2008 @ 11:42 am | Reply

  10. Most consumer products have quite low production costs relative to retail costs with distribution costs gobbling up the rest. Milk, breakfast cereal, electronic gadets, whole life insurance policies, annuities, and jewelry all fit this mold.

    Indeed, compared to many products a CD is pretty high in production costs to retail cost.

    Comment by ohwilleke — January 28, 2008 @ 9:47 pm | Reply

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