Crave

(Credit: Tonic)

Good: You're in an up-and-coming band. Bad: Hurricane Katrina comes along and destroys all your gear. Good: A charity, Music Rising, is set up to try to raise money. They're doing this by auctioning off iPods that music celebs like Gwen Stefani, Faith Hill, and The Britney have loaded with their favorite playlists. Sounds like a win for everyone involved, but it might be too good to be true.

Don't get me wrong, as a former musician and survivor of my own environmental catastrophes (no, not my messy bachelor pad), I understand the need for relief. I fully support what Music Rising is trying to do and I wish them the best of luck. You should definitely check out the current auctions--Mariah Carey's iPod was in the lead at the time of this writing.

But I can't stop thinking of the RIAA. It has long maintained that distributing playlists--on burned CDs, iPods, smoke signals, whatever--is a massive and egregious type of copyright infringement. Will Tonic, the group putting on the auction, have to pay royalties to the very artists who are donating the playlists and iPods?

We hope the RIAA lets this one slide, though that's not normally in its nature. This is a way to help those that it claims to represent, musicians.

When you hear about the music industry these days, there are often figures claiming that digital music downloads--led by new initiatives from the likes of Amazon, Nokia, MySpace, and, of course, Apple--are up year over year by more than 25 percent, and now account for about 20 percent of overall music sales. But let's get the numbers straight. Despite some bright spots, the vast majority of digital downloads are unauthorized and cost nothing.

In fact, a recent report by IFPI, a body that promotes and "safeguards" digital music, says that in 2008 a whopping 95 percent of all music downloads were illegal. Sure, IFPI has an interest in perhaps inflating that stat a bit, but judging from what I've seen out there, I'd say it's still a very high percentage.

No difference: U2's upcoming album No Line on the Horizon will likely cost the same as a CD or digital download--and that doesn't make sense.

(Credit: Wikipedia)

You've probably heard about how the Recording Industry Association of America (RIAA)--and now IFPI--are strongly encouraging ISPs to police digital downloads and bring pirate networks to their knees. There's talk of throttling bandwidth and even more draconian measures, which a lot of consumers aren't too happy about, especially ones who don't like their ISPs to begin with.

All that said, let's pretend for a moment that in some highly improbable scenario, someone or something manages to get pirating totally under control and people are left having to pay for their music. Would sales suddenly take off? Would all be well again in the music industry?

Probably not. The problem is--and has always been ever since digital downloads emerged--that the digital stuff is way too expensive, and that's made a lot of folks feel the music industry is out to rip them off.

Read the full column.

(Credit: Steve Guttenberg)

The numbers are grim, all right, but the music industry still sells hundreds of millions of CDs each year. That's a lot of discs, and sales of downloads won't surpass silver discs for a while.

According to some industry sources, as recently as 2006, CDs represented more than 80 percent of the music sold in the United States. A recent report projects that it won't be until 2012 that download sales surpass CD sales. So fess up. A lot of you are still buying discs, and I want to know who you are.

I'm doing more than my share, still averaging six or seven CDs a month (vs. less than one DVD/Blu-ray Disc a month). The media sees trends, so even though the trend is down, CDs are not out. Oh, and there's a lot more profit in selling physical media than downloads, so the record business is in no hurry to quit making discs.

Not that it matters to most people, but CDs sound better than most downloads, including ones free of digital rights management (DRM), or copyright protection software.

Got an iPod? Rip your CDs to Apple Lossless or WAV files, and get way better sound than iTunes downloads. Buy used CDs, and save even more money.

CDs can have gorgeous cover art and liner notes, which aren't always part of the download deal. Yeah, I've heard the news that LP sales doubled in 2008, but their sum still equals the teeniest fraction CD sales.

I'd love to hear from folks who regularly buy CDs.

A recent NPD survey cited by the New York Times' Bits blog confirms what I've suspected for a long time: the record industry's campaign against file-sharing sites is not only ineffective, but misguided. According to the survey, 19 percent of the music in consumers' collections comes from file-sharing networks. That's up 5 percent from last year--in other words, lawsuits and education campaigns have so far been ineffective.

But 38 percent of music listeners' collections come from CDs that they borrowed, then ripped to their hard drive or burned to a CD-R. (I'm not sure why NPD made the distinction between ripped and burned. I suppose it's academically interesting--ripped CDs are presumably listened to on MP3 players or computers, while burned CDs can be listened to in CD players.) In other words, file-sharing networks aren't the primary cause of declining CD sales--copied CDs are. That behavior's impossible to stamp out, and adding copy-protection software to CDs is not a viable solution--it's either ineffective or exercises too much control over the user's computer, leading to potential PR nightmares and even legal liability.

85% of the music on my Zune was recorded from a CD or LP that I legitimately own. Most of the rest comes from CDs I borrowed and ripped.

Just to satisfy my own curiosity, I took a quick look through my Zune 30, which is my primary personal MP3 player (the iPod has more family stuff on it), and catalogued my own digital music collection by origin. Here's how it stacked up:
• 2,714 songs (85 percent) from a CD or LP purchased by me or given to me as a gift.
• 439 songs (14 percent) acquired from somebody else without payment--a CD I borrowed and ripped, or that was burned for me by a friend, or given to me as digital files on a flash drive.
• 47 songs (1 percent) downloaded from an approved Internet source, such as the Zune Marketplace.
• 10 songs (<1 percent) downloaded for free from non-industry-approved Internet sources.

Obviously, I'm not a normal music consumer. I'm almost 40 years old, so much of my collection stems from the pre-Internet days, when the only real way to get music was to buy it. The question is, how does the industry make the average user look more like me? I don't know the answer, although lowering prices on CDs or promoting vinyl (which is harder to rip) with codes for one-time digital downloads might help. One area where I don't look like the ideal consumer is with digital downloads: I'm at far less than the average 10 percent. I might buy more music online if (a.) it were in a format that could be used on both my iPod and my Zune (b.) online catalogs were deeper, with more obscurities, no black-outs for long songs, and so on.

According to a recent report from the Associated Press, the Motion Picture Association of America--Hollywood's antipiracy wing--admitted to releasing data that was not only factually incorrect, it grossly overstated the impact college students have on the movie industry's losses.

The MPAA claims its original figure citing a 44 percent loss due to college piracy was inflated by a whopping 29 percent. In fact, the MPAA admitted that the actual impact college students have on the industry's revenue loss is just 15 percent.

"The 44 percent figure was used to show that if college campuses could somehow solve this problem on this campus, then it would make a tremendous difference in the business of the motion picture industry," an expert covering the case said. The new figures prove "any solution on campus will have only a small impact on the industry itself."

So why do the MPAA and the Recording Industry Association of America focus so much of their time on college students? Is there something that these disgusting organizations aren't telling us? Are college students really that bad? Sadly, it's just another example of these organizations trying to vilify the easy target when the real violators are left to roam free.

UPDATE: You can now read the full transcript of the RIAA interview here.

The RIAA has quickly become one of the most disliked organizations in the world. Working ostensibly with the interests of the artists in mind, the organization has single-handedly instituted a policy of lawsuits and education in an attempt to curb the piracy of music.

Although this has been going on for quite some time now, I recently read a press release from the organization outlining its successes and what 2008 will look like for its College Deterrence program.

The press release tells us that the RIAA (on behalf of the music industry) has sent out "a new wave of 407 pre-litigation settlement letters to 18 universities nationwide as part of an ongoing campaign against online music theft. The letters reflect evidence of significant abuse of campus computer networks for the purpose of copyright infringement."

Once those students receive the pre-litigation settlement letters, they have the opportunity to surf over to the P2P Lawsuits Web page to settle with the RIAA before a court battle ensues.

Of course, the story doesn't quite end there.

To get a feeling for why the RIAA has implemented this strategy and has seemingly ignored the piracy cartels all over the world, choosing the soft target instead, I got in touch with the organization and asked a representative 10 questions to clear the air. This transcript will be made available tomorrow on The Digital Home.

Unfortunately, the answers given proved even more damning to an organization that is already sitting on a powder keg.

The Washington Post has backed off a story that erroneously accused the recording industry of trying to criminalize ripping CDs to a computer.

The Post issued a correction Saturday, more than a week after the paper triggered a wave of media coverage by claiming that the Recording Industry Association of America (RIAA) was trying to outlaw the very common practice of copying music from a CD onto a computer or iPod.

"A Dec. 30 Style and Arts column incorrectly said that the recording industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer," the Post's correction reads. "In a copyright infringement lawsuit the industry's lawyer argued that the actions of an Arizona man, the defendant were illegal because the songs were located in a shared folder on his computer for distribution on a peer-to-peer network."

The reference to "shared folder" was key. In the Post's story, the writer quoted from a legal brief filed by the RIAA in the case of Jeffrey Howell, an Arizona man accused by recording companies of illegal file sharing. The author of the Post's story said that the RIAA maintained "that it is illegal for someone who has legally purchased a CD to transfer that music into his computer."

But anyone reading the brief will see that in all such references, the RIAA was arguing that it was illegal for someone to make copies and then distribute those copies over file-sharing networks.

Soon after the story appeared, several high-profile blogs, including Techdirt, Gizmodo, and Engadget, wrote that something was amiss.

Mike Masnick at Techdirt noted that other previous stories about the RIAA's legal brief had been debunked.

"Unfortunately (and for reasons unclear to me), the Washington Post has revived the story," Masnick wrote on Jan. 2. "That's simply not true."

Nonetheless, dozens of other media sites repeated the Post's claims. The Web was filled with headlines like "RIAA Goes After 'Personal Use' Doctrine," "We're All Thieves to the RIAA," and "RIAA Equates Ripping With Stealing."

In response to the Post's decision to correct the story, the RIAA issued a brief statement on Monday: "We appreciate that the Washington Post cleared the record."

Editor's note: Greg Sandoval is a former Washington Post staff writer.

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.

It's late on Wednesday evening and the Washington Post has yet to correct a story that accused the recording industry of trying to paint law-abiding music fans as criminals.

But the paper should make things right and soon.

Marc Fisher, a Post columnist, wrote on Sunday that the Recording Industry Association of America (RIAA) asserted in a legal brief that anyone who copies music from a CD onto their computer is a thief. The document, filed last month, was part of the RIAA's copyright suit against Jeffrey Howell, an Arizona resident accused of illegal file sharing.

Quoting from the brief, Fisher wrote that the RIAA had argued that MP3 files created from legally bought CDs are "unauthorized copies" and violate the law. If it were true, the move would represent a major shift in strategy by the RIAA, which typically hasn't challenged an individual's right to copy CDs for personal use.

The problem with Fisher's story is that nowhere in the RIAA's brief does the group call someone a criminal for simply copying music to a computer. Throughout the 21-page brief, the recording industry defines what it considers to be illegal behavior and it boils down to this: creating digital recordings from CDs and then uploading them to file-sharing networks.

A sentence on page 15 of the brief clearly spells out the RIAA's position: "Once (Howell) converted plaintiff's recording into the compressed MP3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiff."

The key words there are "shared folder" and it's an important distinction. It means that before the RIAA considers someone a criminal, a person has to at least appear to be distributing music.

The Post story, which followed similar pieces in Ars Technica and Wired.com, has spurred scores of other media outlets to repeat the paper's erroneous assertion. Ironically, even typically anti-RIAA blogs, such as Engadget, Gizmodo and TechDirt have jumped in on the side of the RIAA.

"The Washington Post story is wrong," said Jonathan Lamy, an RIAA spokesman. "As numerous commentators have since discovered after taking the time to read our brief, the record companies did not allege that ripping a lawfully acquired CD to a computer or transferring a copy to an MP3 player is infringement. This case is about the illegal distribution of copyrighted songs on a peer-to-peer network, not making copies of legally acquired music for personal use."

After reading Lamy's statement, Fisher didn't back down.

He responded in an e-mail to CNET News.com: "The bottom line is that there is a disconnect between RIAA's publicly stated policy that making a personal copy of a CD is ok and the theory advanced by its lawyers that in fact, transferring music to your computer is an unauthorized act."

He took one more shot before signing off: "Rather than suing its customers and slamming reporters, the RIAA might better spend its energies focusing on winning back the trust of an alienated consumer base."

Still, Fisher received little support from respected and independent copyright experts. William Patry, the copyright guru at Google--not exactly known as a lackey for copyright holders--wrote on his blog that the RIAA is being "unfairly maligned" in the Post story.

Patry does, however, caution that recent statements made by the RIAA and included in Fisher's story reflect the group's growing tendency to use language as a means of control.

Fisher quoted Sony BMG's chief of litigation, Jennifer Pariser, who testified recently in court that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song."

Patry disagreed.

"This new rhetoric of 'everything anyone does without (RIAA) permission is stealing' is well worth noting and well worth challenging at every occasion," Patry wrote. "It is the rhetoric of copyright as an ancient property right, permitting copyright owners to control all uses as a natural right; the converse is that everyone else is an immoral thief."

Greg Sandoval is a former Washington Post staff writer.