RIAA shreds Washington Post story in debate
An executive with the music industry's lobbying group engaged in a verbal sparring match on Thursday with the Washington Post columnist who alleges that the organization is trying to outlaw the practice of copying CDs to a computer.
National Public Radio hosted in on-air debate between Marc Fisher, the Post columnist, and Cary Sherman, president of the Recording Industry Association of America (RIAA). The way I saw it, Fisher was ill advised to debate. What was exposed was a reporter who doesn't want to admit to making a mistake and has dug his heels in. Meanwhile, according to Sherman, Fisher has misled consumers.
Early in the debate, Fisher was on the defense as Sherman picked apart his story, which appeared on Sunday. In the piece Fisher quoted from a court document, filed in the case of an Arizona man accused by the RIAA of illegal file sharing. Fisher wrote that the quotes demonstrated that the lobbying group was now challenging the right of music fans to rip CDs to their computers.
Copying CDs to a computer or an iPod is common all over the world and if Fisher's claims were correct, the RIAA would be painting millions of people as criminals. The story became national news and scores of publications repeated Fisher's claims.
But as numerous bloggers and copyright experts have noted, the quotes cited by Fisher are incomplete. Fisher wrote that the RIAA had argued in the brief that MP3 files created from legally bought CDs are "unauthorized copies" and violate the law.
"The Post picked up one sentence in a 21-page brief and then picked the part of the sentence about ripping CDs onto the computer," Sherman said during the radio show. "(The Post) simply ignored the part of the sentence about putting them into a shared folder."
The "shared folder" omission is at the center of what's wrong with Fisher's story. Anyone who reads the brief can see that the RIAA says over and over again what it considers to be illegal activity: the distribution of music files via peer-to-peer networks.
Fisher didn't address this issue during the debate. Instead he moved on to testimony given by Jennifer Pariser, a Sony BMG lawyer, who said during an earlier court case: "when an individual makes a copy of a song for himself, I suppose we can say he stole a song."
This is when Sherman really went to work on Fisher's story.
"The Sony person who (Fisher) relies on actually misspoke in that trial," Sherman said. "I know because I asked her after stories started appearing. It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry."
Sherman said that other reporters and bloggers had called about Pariser's quotes and chose not to write about them after learning she had erred.
Why wasn't Fisher offered this information? Well, he would have been had he spoken to anyone at the RIAA, Sherman said.
Prior to writing the story Fisher called the RIAA for a statement once and left a message, according to Sherman. When the RIAA's spokesman returned the call two hours later, he missed Fisher. But Fisher never called back to get the RIAA's statement even though the story wasn't published until nine days later.
It's customary for journalists to give the subject of a story a chance to be quoted--especially when they're slamming them.
Again, Fisher declined to address Sherman's accusations. He moved on to statements that appear on the RIAA's Web site, which he claims show that the group considers copying music to a computer as unlawful.
But Sherman suggested that Fisher was once again being selective with the RIAA's statements. Sherman showed the location on the site where the RIAA says that people can typically copy music for personal use without any problems.
"They go on to equivocate and say, 'Well, usually it won't raise concerns if you go ahead and transfer legally obtained music to your computer,'" Fisher said during the debate, "but they won't go all the way and say that it's a legal right."
Here was an opportunity for Sherman to declare once and for all that copying CDs for personal use is lawful. He stopped short of that, saying that copyright law is too complex to make such sweeping statements. He did state that there is one foolproof way of discovering the RIAA's policy on personal use: check the record.
"Not a single (legal) case has ever been brought (by the RIAA against someone for copying music for personal use)," Sherman said. "Not a single claim has ever been made."
In the final analysis, this is really a story about journalism ethics more than it is about technology. Fisher is a respected journalist who probably should remember one of the first things they teach cub reporters: when someone challenges you over a story, it's smart to think of worst-case scenarios.
Reporters are reminded to ask themselves whether they could defend everything they did during the reporting and writing process if ever sued? If the RIAA ever took the Post to court over the issue, Fisher might have to explain why he omitted important sections of the RIAA's legal brief. He would have to justify not trying harder to get RIAA comment.
If a reporter's work doesn't stand up, the typical remedy at most media organizations is to issue a correction. That's what the Post should do in this case.
Greg Sandoval is a former Washington Post staff writer.
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET.
customers can be sued for having their 'legally copied' files in
the wrong folder.
I'm also looking forward to the technical booklet that comes with
every CD that explains where it _is_ and _is not_ legal for one to
keep legally 'ripped' AIFF tracks on one's Internet-connected
hard drive.
I'm no fan of illegal file sharers. I think allowing others to copy
copyrighted music is wrong. But at what point and under how
many rules are we to be able to make legal backup/spaceshifted
copies of our music?
I think the RIAA doesn't have a clue - and never did. The hatred
of a once low-profile industry group and the reluctance of the
music industry to move toward digital distribution says it all: the
very model of the music promotion industry relies on lock-in
and practices that are unfair to artists.
The past few years I've mostly bought garage sale and pawn shop CDs.
Instead I'll focus on the used market and select digital from Amazon. Used keeps profits out of the pockets of the RIAA members. Amazon fills in the gaps without DRM and it is a stip in the right diretion that should be rewarded.
Oh and it's entirly fair use to store your ripped media anywhere you choose. It's sharing it that breaks copyright. Not how you choose to use your own personal bought and paid for materials. To say othewise is RIAA spin, but not fair use.
Still, the RIAA is a dinosaur that needs to get a grip on a new business model. Gestapo-like scare tactics are not going to make them any more money. They may have been mis-quoted, but the "sue everyone, everywhere" mentality is still there...
everyone for perfectly legal and everyday activities, which is
exactly what they're looking to do. I don't think he did anything
wrong here. He quoted them on what I believe are their actual
intentions. At this point I have no respect for the RIAA and
assume that any bad things said about them are true because
they go to such pathetic extremes to ruin peoples lives for
sharing information with others, which i encourage. The RIAA is
worthless to me.
How can anyone believe these people? "The question was misunderstood" has to be the lamest backpeddling I've ever seen. The RIAA folks can't even substantiate this claim of not understanding the question by admiting ripping a cd is a "fair use". They have to qualify that statement with a "usually". This tells me that they do in fact consider ripping a violation and therefore they will reserve the right to sue on that account. I'm pretty sure I'm not the only one who distrusts these pinheads.
This whole "debate" sounds like a feeble try at repairing PR damage done by Pariser's inflamatory statement.
If they had came out and said unequivicaly that ripping was a legal fair use, then I might buy this lame rhetoric...
If it is legal to make copies for personal use why attempt to stop us from making copies through encryption?
Not a lot of CDs have encryption, but it has been attempted.
copyrighted works if you just wanted to use the works for your
own personal use (e.g., if you wanted to play a music file
purchased from Apple's iTunes music store on a sixth computer
that you had -- five is the limit), but you are prohibited by law
from doing so.
The Digital Millennium Copyright Act (DMCA) criminalizes
production and dissemination of technology, devices, or services
that are used to circumvent measures that control access to
copyrighted works (commonly known as DRM) and criminalizes
the act of circumventing an access control, even when there is
no infringement of copyright itself.
Clearly there are people in the RIAA who's definition of fair use is so infinitesimally small that its only actual use would be in a law school classrooms as a discussion topic. Artists and the industry they keep afloat need to be compensated for producing desired products. RIAA, however, whishes to erase 32 years of copyright law in order to boost their sagging profits. Maybe Mr. Fisher is being paranoid or reactionary. But honestly, I can't blame him given the tone that RIAA has, all by themselves, set.
The RIAA, of course, does not want to push this issue to hard until they see court ruling more in their favor; however, if their current tactics work then they will begin targeting this market as well.
changing that law would be tough, we may have to "donate" money
to elected officials. That law came into effect because the industry
was more active than the consumers.
personal use is not illegal. Distributing copies is illegal. And for the
most part the DMCA deals with distribution too. I can make as
many copies as I want of a certain song that I bought, why should
the RIAA care as long as I'm the only one who listens to it?
Its not about use....its about people having music they didn't pay for.
As much as I despise the RIAA....don't hate the player, hate the game...which in this case is the US copyright system and laws.
Regardless I do have the right to enjoy what I have purchased for reasonable and forseeable things.
With a hammer that means smashing walnuts or breaking off ice chips. With digital media that means copying it to my computer, my PDA or other playback devices. It is a fair use even though they may choose to make breaking the copy protection portion of trying to invoke your fair use illegal.
A warning lable is not copy protection. Media companies can't sell you media without also endorsing your fair use rights. if you had zero fair use, you could not enjoy their media and it would have zero value.
Right now the laws only say that it is illegal to share copyrighted media. For a law to clearly define when it is OK and is not OK to copy music for personal use, they would have to define every possible exception to the rule. And that is a can of worms that no one wants to open.
Take, for instance, Pariser's comment about ripping being theft. Sherman said that she "misspoke" (a Nixonian term of art), but it was in Court on the record, so it looks like it's their legal position, just not their PR position. And Sherman wouldn't say that ripping CDs to your iPod is legal, merely that they haven't sued anyone for it. Yet. So we're supposed to "trust" him. And on the issue of ripping overall, he declared it hopelessly complex (I don't think so), and merely conceded that it's legal to copy an LP you own onto a "Music CD" (the surcharged kind); he didn't concede permission to rip to a computer CD or Flash-based device.
He wants copyright laws updated. Of course the updates they're pushing for tighten the DMCA and make felons out of all of us for defeating DRM in order to make Fair Use of our legally-obtained music.
Marc Fisher, a respected columnist, erred in his story. We all make mistakes. But he has compounded his error by not fessing up to it. He said the brief says something it does not. That is a fact. I'm making a stink because I know the Post values accuracy.
That's the problem with the majority of the news media--if they admit to a problem it's in small print in the middle of the obits, but they'll usually try and cover it up, which I suppose in your world is professional and ethical.
But in fact, as I posted on yesterday's story, the brief has multiple sentences (not just one) about making "unauthorized copies" of songs onto one's computer; and those sentences are constructed so as to make it sound as though making copies is a charge in and of itself, independent of putting them in a shared folder. See my comment yesterday.
It's not clear to me whether the RIAA lawyer simply was fuzzy on the tech issues, or whether the RIAA was trying to stealthily push the envelope a little toward making personal copies illegal. They didn't make a bold claim that personal copies were illegal, but they did hint strongly in that direction.
It's fine and welcome for RIAA to say "that's not our position," but they should also (if they haven't already) acknowledge that the brief contains misleading statements in that regard.
And yes, Fisher should admit that the issue is more muddy than his headline. But the evidence his column is based on has multiple sources, not just the legal brief. He does have a point, even if one part of it was not as strong as he made it sound.
It's fine for Sherman to claim that no one has been sued by the RIAA for making personal copies, but it's not clear that Sherman is right even in the case in question. It sure sounds like the defendant is being sued for making personal copies, independent of sharing them on Kazaa. If Sherman really wants to make his claim true, the brief should be revised and clarified.
Fisher should keep hounding the RIAA to make a definitive statement to the effect that making personal copies -- including ripping CD's to mp3 -- is fair use and that the RIAA won't go after them.
And Sandoval should back off a bit and admit -- as he wants Fisher to admit -- that he has overstated the case. A headline like "shreds" smacks of having a partisan axe to grind.
The fact is...the tactics don't work. Debating people on NPR isn't going to work.
The only thing that would work, would be to understand the market, and not, attack and destroy the market...but to actually compete and concede to the markets demands.
But they don't have that ability, and so nothing changes.
They know their tactics don't work, but they repeat them year after year, because they have nothing else.
Fisher pointed out that the RIAA engages in doublespeak, claiming any position that they feel is convenient to them at the time. Clearly, they're not ready (yet) to start suing people for ripping CD's, but they refuse to rule it out. That's a huge problem, and that's what Fisher got Sherman to admit to.
Sherman's response to "look at the record" and see that the RIAA has not (yet) sued anybody for CD ripping for personal use is disingenuous. They hadn't sued anybody for sharing music yet either... until they did. Their point is kind of like me saying I don't need smoke detectors or homeowners insurance, because hey, my house has never burned down.
Their refusal to call CD ripping a fair use legal right, while at the same time pointing to their record of lawsuits as somehow proof that they won't sue, is ridiculous. I would have laughed out loud if I'd heard Sherman actually try to make that argument.
It strikes me as another foot in mouth for the RIAA.
May I have to repeat it? "If you make unauthorized copies of copyrighted music recordings, you’re stealing." They say anything about "shared folders".
And the brief used the terms "unauthorized copies".
(MUSIC United: AEC One Stop Group • Alliance of Artists and Recording Companies • American Assn. of Independent Music • American Federation of Musicians • American Federation of Television and Radio Artists • American Society of Composers, Authors and Publishers • Association of Independent Music Publishers • Broadcast Music, Inc. • Christian Music Trade Association • Church Music Publishers Association • Country Music Association • Gospel Music Association • Hip Hop Summit Action Network • Jazz Alliance International • Music Managers Forum-USA • Music Performance Fund • National Association of Recording Merchandisers • National Music Publishers' Association • Nashville Songwriters Association International • Recording Artists' Coalition • Recording Industry Association of America • Rhythm and Blues Foundation • SESAC • SoundExchange • Tennessee Songwriters Association International • The Recording Academy • The Songwriters Guild of America • Wright Entertainment Group)
The biggest issue for most people is when they actually BUY the product, they want to be able to make a backup copy, or enjoy it on various media around the house, such as computer, MP3, TV, etc. Right now, the way the laws are written, genuine purchasers of movies and music do not have that right, thanks to the DMCA and other such legislation. These are not "free downloaders", but actual customers. To make a comparison you would understand, it would be as if when you buy a carving knife, you were told that you could only cut salmon with it; to cut other types of fish or meat, or paper or string or anything else, is prohibited.
Further, there are protocol;s built into the knife, so that if you tried to cut anything but salmon with it, the knife would become so dull you cannot use it. This is the vision of the world of the RIAA and MPAA. You buy one CD or one movie, and if you want to use an MP3 to play the music on the CD, or you want to watch the movie on your computer or portable DVD player, you need to buy another copy, or buy another copy of the CD you bought previously to play on your car. And if your original CD or movie DVD is destroyed, too bad, you just need to buy another copy, or do without, since it will likely not be available.
This is why customers are angry. Those of us over 20 have already bought multiple versions of the same content - first on LPs, on tapes, VHRs, CDs, DVDs, and now the high definition DVDs. Why do we also need to buy the same thing over again to play on each electronic player in the house or car? This is not right.
Simply by ripping the content of a DVD or movie to make a back up copy is prohibited under the DMCA, because it is circumventing a "copyright protection". So even if you have bought the original media new, and make a copy that you never share with anyone, you are breaking the law.
These laws needs to be changed, because the majority of us who want the changes are not "freeloaders" but we have already purchased the original media, many times over. You need to read the articles carefully, or find someone that can read them to you.
store them on your hard drive. And the RIAA knows this. Sure,
they've tried to argue that it is illegal in the past, but they lost
their argument in the courts.
There was a landmark ruing in the Diamond vs. RIAA case
concerning this. The decision, written by Ninth Circuit Appellate
Judge Diarmuid F. O'Scannlain, stated that Diamond?s RIO MP3
player, computer hard drives, and other computer peripherals
are not subject to the consumer restrictions under the 1992
Audio Home Recording Act (AHRA). Also, according to the ruling,
?computers are not digital audio recording devices, they are not
required to comply with the SCMS requirement and thus need
not send, receive, or act upon information regarding copyright
and generation status.?
Details at: http://www.virtualrecordings.com/rio.htm
The only reason this guy got in trouble was because he made
MP3s available for sharing by placing them in a shared folder
that was accessible by someone else. The "accessible by
someone else" part is the key point.
Reporters are reminded to ask themselves whether they could defend everything they did during the reporting and writing process if ever sued? If the RIAA ever took the Post to court over the issue, Fisher might have to explain why he omitted important sections of the RIAA's legal brief. He would have to justify not trying harder to get RIAA comment."
What you described in these two paragraphs is about thinking ahead wisely, but it isn't about ethics. Ethics is considering whether it is honest and right to say what you said, or to omit what you omitted, aside from any legal or career-impacting consequences.
- The Real Intent of The Record Companies ??
-
by Lord Paul
January 4, 2008 10:18 AM PST
- For the real intent of the record companies we only need look back a couple of years to Sony BMG and their attempt to install a Root Kit Virus in consumers PC?s disabling the ability to make copies of their music. This only came to light by chance or they would still be installing it their CDs. It?s for this reason I will never buy another Sony Product. I just bought my son an Xbox for Christmas even though he requested a PS3.
-
Reply to this comment
-
Showing 1 of 2 pages (65 Comments)