Cuban Says RIAA Damages Should be $5 Per Month 693
Thomas Hawk writes "Mark Cuban is arguing over at Blog Maverick that with the introduction of Yahoo!'s new $5 per month music service that this needs to become the new de facto 'damages' that the RIAA ought to be able to claim when suing kids. After all, when the kids could have paid for the music via Yahoo! for $5 a month it makes it hard to say the music loss is worth more than that. 'The RIAA can no longer claim that students who are downloading music are costing them thousands of dollars each. They cant claim much of anything actually. In essence, Yahoo just turned possession of a controlled music substance into a misdemeanor. Payable by a $5 per month fine.'"
The world is geting smaller... (Score:3, Informative)
Re:Upload, not download (Score:2, Informative)
Are you deaf? You can't get jail time or thousands in fines for downloading.
Re:Upload, not download (Score:5, Informative)
I understand that BitTorrent is a little different because there is an original seeder but after enough time it turns into a big P2P network just like Emule... errr.... Edonkey.
I know they target those who are the "big" uploaders, who share thousands of songs. But I'd wager that their standards for "big uploaders" are getting looser and looser and if the continue to see success with their current strategy, before long their standards will point to the "average joe P2P user." What happens then?
Re:this guy is on drugs (Score:2, Informative)
I think Mark Cuban knows his way around digital media law[s] pretty well.
Re:this guy is on drugs (Score:3, Informative)
Re:RIAA (Score:1, Informative)
It's actually called "punitive" damages.
Re:Upload, not download (Score:2, Informative)
Re:this guy is on drugs (Score:1, Informative)
The RIAA is claiming they are losing money on every download that occurs and this is where I have a problem with their claims. Every person who I've talked to that does download on peer to peer has purchased the same number of CD's as they always have.
The fallacy in the RIAA's claim is that every downloaded song would be bought by the same person, and that is just hogwash. People buy what they really want, they download what their curious about. Most downloads are just filler music for their IPOD. It's music that they wouldn't buy otherwise.
So what Mark is saying completely makes sense. The RIAA is suing uploaders who are allowing people to download music in which 99.99% of the music would not be purchased otherwise. But the RIAA wants to hold the uploader accountable for theoretical damages which are far and beyond what their losses really are.
Re:this guy is on drugs (Score:1, Informative)
Or, if you dont subscribe, you can pay a buck a track, just like iTunes, and listen to a handful of their free net-radio stations.
I don't really know technical details, I don't even listen to music anymore.
BTW, it's 7 bucks a month, it's only 4.99 a month if you bill annually (60 bucks a year).
I only know it's DRM'ed somehow (not plain jain MP3) because of this:
Note: Yahoo! Music does not permit copying or transferring music files to other users.
and this:
iPod Users: If you're an iPod user with a Windows-based PC, you can transfer music you already own to an Apple iPod using the Yahoo! Music Engine. Unfortunately, iPods are not currently compatible with the Yahoo! Music Unlimited subscription service.
But then, iPod owners have already pretty much found out that iTunes or real world CDs are their only source for legal content.
Re:That doesn't compute. (Score:1, Informative)
First sale (Score:5, Informative)
If I sold my Mustang to you could I get sued by Ford for it? If not, why not?
The first sale doctrine applies in both patent law and copyright law. Ford can't sue used car dealers for patent infringement because the first sale of a patented article to the public exhausts the exclusive right to resell that article. Likewise, you have the right to resell a lawfully made CD on which copyrighted works are recorded.
Re:Upload, not download (Score:3, Informative)
Wrong. They're currently focusing their lawsuits on uploaders because that's the only civil case that they could possibly win.
They might SAY downloading is illegal, but they'd be hard pressed to win.
Re:Upload, not download (Score:3, Informative)
That's because they are two different violations. Stealing a CD is misdemeanor theft. Uploading a CD to thousands of people is felony copyright infringement.
Re:RIAA (Score:5, Informative)
No, that is not what punitive damages are for. They are not a deterrant, they are specifically intended as an additional punishment for notably egregious, willful, or wanton violation of the law.
No Lawsuits Yet (Score:5, Informative)
Cuban may well be right about the proper amount for damages, but that assumes judgement. At the start, anyone can sue anybody for any sum. For example, SCO's multi-billion dollar suit against IBM. I think we can all agree SCO won't get billions. Likewise, the RIAA would probably get less than they are asking IF they won at trial, and IF a judge agreed to impose damages. Both of those eventualities are speculative at this point.
Re:Upload, not download (Score:3, Informative)
This doesn't happen. If I want to use the distribution channels controlled by the RIAA then I have to sign a contract with them and agree to the terms of it.
But if I am a music producer and wish to distribute my music however I want, I can do that. It's mine. I created it. I am the copyright holder in this case and I have the exclusive rights to reproduction and distribution of the material.
Re:Upload, not download (Score:3, Informative)
I don't think so. When you download it, you're making a copy, and thus in violation of US Code Title 17, Chapter 1, Section 106(1). A download creates a copy. It's not a TRANSFER of the original file. You aren't GETTING the original file and then nobody else can have it. You're copying it, just like you do when you upload. Even if you DELETE the original file after you upload, you still copied it. It's like burning a copy a CD, destroying, the original, and saying, "This one isn't a copy, I don't have the original any more."
Re:That doesn't compute. (Score:5, Informative)
Say I own a company that sells dangerous products. They injure some of their users, so I have to pay $X/year in damages due to lawsuits. Now, if it would cost me more than $X/year to fix my product, it would be in my best interests to just continue injuring people and then paying them in court rather than making my product safe. Courts often award punitive damages in such situations, as an incentive for the defendant to stop doing whatever it is that they're getting sued for. The same logic applies here; if you only had to pay the actual cost of an illegally-downloaded song, there would be no incentive to ever legally purchase a song; at worst, I'll get caught and have to pay the price that I would have paid in a store anyway.
Interesting, but missing some pieces... (Score:2, Informative)
1. Yahoo's $5/month fee is based on a business model that we can't see
2. The actual costs to Yahoo are substantially larger than $5/month and are made up on volume
3. The licensing agreements that the $5/month fee covers are also based on a certain volume that Yahoo has to cover until the service reaches a break even point
4. To argue that $5/month should be the punishment, although justifiable on a per-user basis, would not hold a lot of water in court
I don't disagree with Mr. Cuban, but I think he is stretching it a bit beyond what the courts would uphold.
Re:The world is geting smaller... (Score:4, Informative)
Re:this guy is on drugs (Score:2, Informative)
Re:Upload, not download (Score:2, Informative)
Of course, the DMCA nullified all of the fair use elements of AHRA in 1998, without repealing the excise.
Re:Upload, not download (Score:5, Informative)
I'm not arguing for or against a monopoly by the RIAA. I am arguing that this group of businesses does not automatically own all music created, and so "any artist" that wants to distribute his music in his own manner is free to do so.
Likewise, I'm sure the indi venue is an insignificant portion of the audience market but I have no numbers to back me up.
I have no idea either, but the indy market share isn't relevent to my point.
The music radio is mostly clear-channel. I'm sure Satalite radio is clear-channel controlled. MTV is certainly biased towards the establishment.
They have to be, they can only play the establishment's music by buying a license from a broadcast rights manage group like ASCAP, and if they're dickheads about the RIAA's behavior, they'll find their license expense crawling up. MTV is as much a slave to the content cartels as FM radio.
The only large distribution you have left are sound-tracks of big-end movies. With the possible exception of indi-films that at least get a lot of spot-light, if not popularity.
If you want large-scale distribution then your choices are limited. If you want millions and millions of people to hear your music then you are at the mercy of distribution channels that can potentially reach millions and millions of people. The internet is my personal favorite.
The industry has calculated methods of maximizing profit;
Any prudent business should, yes.
tuning various demographics to particular sounds and focusing on particular artists of the month to build sensationalism which causes people to flock to the fad-of-the-month and thus increase revenue. To facilitate this brainwashing, they need LOTS of airtime for their target projects, and this leaves no room for anything else.. With the consolidation of media outlets, the drive to "advertise" a particular label means even less airtime for variety.
In other words, they saturate the masses with cookie-cooker schlock and the masses eat it up. This has been happening for as long as there has been art and isn't a phenomenon unique to big business. Note: I am not exonerating big business for any wrong-doing. I hate big corporations as much as the next day.
So there IS an establishment that is trying to squash unsigned material, albeit indirectly through the reduction of avenues of distribution.
I don't think they're actively trying to squash unsigned material, because they could buy out almost anybody they wanted. If your material was so good that they were potentially losing millions in sales off your stuff, they'd have come up (in most cases) with enough money to turn the pupils of even the most principled artist into dollar signs. Everybody has high standards about how money should trade hands when they aren't the ones earning it.
I don't think the attempt to destroy the P2P networks is based on squelching unsigned talent either. They really do believe that they're losing money off of it. They're idiots, of course, because assuming P2P is the root of the problem, will banning it solve the problem? No. Will copy protection and DRM solve it? No.
As a disclaimer, I have no association with the musical profession.
Nor do I. I think you missed part of my point. I was countering this idea that if I want to hand out my music to anybod who wants to hear it, I can't because of the RIAA. This just isn't true. They don't own all music in the world.
I don't agree with them, their tactics, their close relationship to our congressional representatives, their at
Re:Upload, not download (Score:5, Informative)
How many stupid laws do I have to look up for you to believe that not all laws are created with wisdom and good intentions?
Remeber prohibition. Some civil disobedience never hurt anyone.
Just note that America has the highest incarceration rate in the world. Jailing more people obviously isn't solving your problems.
Re:Upload, not download (Score:3, Informative)
Not arguing anything, but I thought it might be good to point out here that the artist pays for all the recording and promotional costs. Artists usually receive no payment after a recording is made from the recordings' sale until, in the labels' opinion, it's costs have been repaid. There's a very good piece on how things work between labels and artists here:
http://www.negativland.com/albini.html [negativland.com]
I've posted this link before when the labels' investment in the artists and recording/distribution has popped up here, but I feel it bears repetition, as too many people outside the industry don't understand how things go down, and might buy into some of the misinformation spread by the RIAA and the labels.
Cheers,
Strat
Yahoo's new music player considered harmful? (Score:1, Informative)
(1) It destroys track and disk number of AAC files (none of my MP4 files have track numbers anymore), and it renames them all in the process (stripping the track number from the filename).
(2) It destroys total track count of MP3 files.
(3) On playing an MP3, it overwrites the comments with binary metadata (probably the number of times the file has been played).
It basicly trashed the organisation of almost 4000 of my music files. Files are, fortunately, still playable and it's only their tags and filenames that seem to be damaged. I uninstalled, went back to iTunes and am now trying to repair the damage it did.
And besides the tag mess, Yahoo Music Engine is not as polished as iTunes. It may support more formats, but I dislike the slow user interface (it literally takes a few seconds for the menu to appear when right-clicking on the taskbar icon), and that it tries to sell you music at every turn (including the obnoxious start screen you can't turn off).
iTunes is a media player at heart that happens to have a storefront attached, whereas YME is a storefront posing as a media player - and it appropriately fails to grasp how a decent media player ought to behave. I've never bought music online (and I don't intend to), but for simply organising your own music files, iTunes works far better for me than YME.
Punitive -vs- Compensatory Damages (Score:2, Informative)
After all, CD's only cost $12-15 each. It would take a lot of CD's to add up to the $100K these folks are supposedly asking for in their suits.
(IANAL)
Re:Upload, not download (Score:1, Informative)
no, not really. downloading just means the person is "in possession" of the songs. uploading means that plus "DISTRIBUTION" which is worse.
compare it to drug dealers, i'm sure the riaa has already used that analogy before. the downloader is the end user, the chum that buys the weed (or whatever), the dealer is the distributor, also in possession, but also selling (as in 'uploading'). which faces harsher penalties? the dealer does.
the industry is going after the uploaders because:
a) they don't have to infringe themselves to catch them. they'd have to bait downloaders to get the evidence on them, and i could see entrapment fitting in somewhere. here it's illegal for a cop to sit outside of a pub and wait for drunk drivers to leave the parking lot; why would it be legal for the riaa to entrap downloaders?
b) scaring people into not offering uploads reduces the quantity of material available on a network.
c) distribution of a copyrighted song on p2p is much easier to say is illegal. the possession of a copyrighted song downloaded off of p2p may NOT BE. and isn't in some places; nor is it if the downloader already possesses the song via a legal purchase. it's a lot "cleaner" to just go after the uploaders. that would be another whole legal battle, riaa sees you download 'a song', wants a warrant to inspect all your computers based on that one song downloaded to ensure you've not got any contraband.
i fully agree with cuban though. five bucks. yup. with a fast connection, you could download your whole collection inside of a month's time, so FIVE BUCKS should be the maximum settlement allowed for these stupid law suits. AND, you shouldn't have to destroy your collection of you start paying five bucks a month to keep it. uploaders, downloaders, i dont care which it is. most of the offered uploads were downloaded from somewhere anyway. that's how p2p software is typically configured. what you download is available for others.
the riaa could end this nonsense once and for all, by simply creating an office to accept 5 dollar a month payments from anyone and everyone; and simply MONITOR the networks to ensure that those funds are distributed according to a song's popularity, even to non-riaa members. no messy lawsuits, just a nice easy revenue stream.
on the plus side, it would knock the online music stores out of business, as they couldn't compete selling drm'd music when unincumbered files are available for 5 bucks a month. no more locking people into only your store or technology, so that would silence the critics of online music stores (thinking mainly itunes here, as they're the most vocal group of the bunch)...
until then; there's always usenet.
Re:Upload, not download (Score:4, Informative)
Copyright is about distribution, not about reception. All a copyright holder can do to a person who illegally receives a copy of their work is inform them that the person they received it from did not have the right to distribute, and ask them to return/destroy it.
The person illegally receiving the work does not legally have to do what they ask. Morally is a different issue. It could be argued that the person receiving the work was a party to the copying, if they intentionally asked the distributor to make the copy, in full knowledge that it would be an illegal copy. However, this argument is extremely tenuous.
See my illustration above about singing/listening to music.
The violator is the person copying the music. It is true that it doesn't matter who it is; if you don't personally have permission from the copyright holder, you are committing copyright infringement. If you are receiving the work, you are not receiving stolen goods; you are receiving information, which cannot be classified as "stolen" as your posession of it does not keep others from having it.
Let's use yet one more illustration. Company X makes a certain brand of carbonated sugar water. Company Y sneaks in and copies their recipe, and then distributes it to anyone who asks for a copy. Who is in breach of copyright law? Company Y, who made the copies. Anyone else found with a copy is not in violation unless they too made and distributed copies.
Where it gets sticky is this next step. What happens when the those who received illegal copies of the recipe decide to "perform" it? The common way to do this would be by producing an identical drink, and serving it to the public. Copyright law states that this is also a violation. However, using the recipe for personal consumption of the drink is legal, as is posessing a copy of said recipe.
Taking this illustration back to the digital world, the following activities are copyright infringement:
*other than prescribed by Fair Use rights, which allow for parodies, personal (family) use (no external distribution), educational research and a few other exceptions (such as specific types of archiving), which are generally on a situation-by-situation basis.
Actual implementation of copyright law is not as cut and dried as I've laid it out here; there are other exceptions and interpretations, but this is much closer to reality than what the general public has been convinced of by the corporate US.
Remember that every time you view a copy of a news release someone has pasted into a Slashdot comment, the original poster and Slashdot are both guilty of the same copyright infringement that covers MP3s -- and in the same way, you are not guilty of copyright infringement just because you read it here.
Re:Upload, not download (Score:4, Informative)
You're right, though, the difference is in the severity.