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.'"
Upload, not download (Score:5, Insightful)
this guy is on drugs (Score:3, Insightful)
This guy is about as bright as a 5 watt bulb.
It is like he does not even understand the reason that the RIAA is able to sue for thousands. The premise in court is (right or wrong) that the Music Industry is losing thousands per filesharer, for a specific reason. That is, each song available for download is being downloaded by thousands of people, and each of those downloads costs the RIAA membership the sale of a CD. Thousands of downloads * CD sale = mucho cash.
Again, this is the premise that would be followed in court.
Changing the price of a music from $CD_PRICE to $DOWNLOAD_YAHOO_PRICE simply means that someone making files available, would be liable for $DOWNLOAD_YAHOO_PRICE now. In other words, $num_of_users_downloading * $DOWNLOAD_YAHOO_PRICE.
How is this ruining the RIAA in court? It only reduces the amount of damages per COUNT of people downloading.. that's all....
Put another way, the RIAA is not suing because you did not buy music. It is not suing the people that downloaded music. It is suing the people that _shared_ music, and setting the price accordingly.
Again, right or wrong, that's what happening. It's almost like this guy thinks people are being sued for downloading. They aren't. If they were, the RIAA could only sue for what they had lost in revenue, and that would be the cost of the songs the sued downloaded.
No, they sue from a much bigger angle. They sue with the claim that file sharers have cost them thousands of CD sales...
That doesn't compute. (Score:5, Insightful)
Well, sort of. (Score:4, Insightful)
Re:Upload, not download (Score:4, Insightful)
It cracks me up that you can get a small fine or few days in jail for shoplifting a CD, but downloading that same album online (with inferior quality!) can net you years of prison time and hundreds of thousands in fines!
Two things (Score:3, Insightful)
2. The purpose of the fine is a) to recoup lost revenues and b) to discourage people from breaking the law
While the value of 2a might have gone down, that doesn't really affect 2b.
Re:That doesn't compute. (Score:5, Insightful)
Damages are usually limited to "actual" losses, which is exactly "the price of the shirt". Fines can be much more, but they're exacted by government, not industry cabals (see Blockbuster).
Bad Math (Score:2, Insightful)
Re:RIAA (Score:5, Insightful)
$5 per month *per user* (Score:3, Insightful)
Of course the RIAA could also look to Apple and say they're worth $1 per song per user. In which case Mr Shmoe would owe $1 * 1000 * number of songs downloaded.
This assumes that the uploader tracks the number of users and downloads and can verify the information to the satisfaction of the courts. This is why the RIAA and MPAA sue for generally large piles of cash. It's a very rare pirate that tracks their user base as well as Apple and Yahoo and every other legitimate music downloading business. The pirate is then at the mercy of the courts to decide how much they owe if they don't just settle with the RIAA.
penalties must exceed cost of goods (Score:3, Insightful)
Re:this guy is on drugs (Score:1, Insightful)
Actually, that calculation doesn't really accurately portray the facts. If I download a file from someone, and they are sued for $5 for letting me download it, I shouldn't be counted in anyone elses lawsuit either right? Because after the first lawsuit, they've accounted for the $5 I would have paid for my monthly fee. Granted, that doesn't take into account any monthly fees past the first month..but then, theres no guarantee I kept the file more than a month after downloading it anyway. So, basically, the first guy sued should get royally reamed, but the lawsuits should get cheaper and cheaper as suits progress...
I agree (Score:3, Insightful)
This is chilling precedent. What's to stop the RIAA from one day hacking into my machines and finding some MP3s (actually, they will find a LOT) and deciding that I am distributing them or that I do not legally own all of them? Can I afford to pay some schmuck lawyer to help me defend myself against this tirade? I can't, as I am unemployed currently. Could I afford a $10,000 "fine"? Probably not. People put other people's lives at risk with drunk driving, but when they are caught, they face only a $3,000 fine here in good ole Pennsyltucky. Aparantly putting the lives of people in danger is only worth $3000 to the state, while saying that stealing some music from a corporation that owes a multitude of its artists money and does its best not to pay is ludicrous is worth $10,000 is totally ludicrous.
The government doesn't need to get involved in this sham either. Hasn't anyone read the news? Record sales have been up. I guess the piss poor economy has had a lot more to do with sales driving down than some college kids who wouldn't have bought the freaking album new anyways.
For the record, 90% of the albums I've ever bought were from the used bin. It would be safe to say that I never supported the artists in the first place. KRS-One has this great line about how "if you downloaded the album, come to the show." I'm sure he makes a lot more from ticket sales at shows than he does from his albums. Maybe more people need to get out and see shows and maybe more shows need to start costing less than $50 a seat!
Is Dave Matthews really worth $100 to go see with your girlfriend? (assuming one has one here)
Re:The world is geting smaller... (Score:5, Insightful)
Neat... (Score:5, Insightful)
Re:this guy is on drugs (Score:2, Insightful)
If copyright law covered the distribution of Ford Mustangs, then yes.
Since copyright law applies to songs, and not to physical objects like cars, your comparison is not analogous.
Copyright law is a government-mandated monopoly right to distribute composed works. If you don't like it you can (and should) lobby to have the law changed, but until then it's the law of the land.
No one knows if the RIAA really has a case (Score:4, Insightful)
Until then it's all threats and scares.
Re:Upload, not download (Score:3, Insightful)
Rental vs. Ownership (Score:5, Insightful)
The argument doesn't hold up.
These pay-per-month services are rentals: you stop paying and you no longer have access to the music (though I suppose its only a matter of time, if it hasn't happened already, before someone cracks the DRM in these rental services). With iTMS you own the track you've paid US$0.99 for. It's yours.
People forget this, or don't think about it. Hilary Rosen's recent drivel [huffingtonpost.com] makes the same mistake when she complains about iTMS lockin while saying how great Rhapsody or Napster or Yahoo! or whatever is. Of course, you're locked into those too. Anyway.
Re:this guy is on drugs (Score:2, Insightful)
Music is not a finite good. It can be copied thousands of times for virtually nothing. The car analogy doesn't work. Ferarri actually tried to do this in the early 1990s. They leased a model instead of selling them, but that's another story.
I own an indie label, and I have no problem with people selling CDs to each other. I don't even care if people let friends rip our CDs. I would like people to buy them, but at least people are hearing the music. The artsts are hurt financially though when that copying takes place. In the end, given our size, all publicity is good publicity, but every downloaded track is a track the atists don't make money from, even if they do publicize the group.
The point is, a song on a P2P network is no longer a singular entity, like a car. If it is shared, it becomes as many entities as there are downloaders. That is where the problem is.
For reference: Under compulsory licensing, if you wanted to license and record a cover of any song out there, the artist would get about 10 cents a song a CD in royalties at a minimium. So, if you covered a song one of my artists did and sold a platinium (million in sales) album, my artist would get $100,000.
Re:Upload, not download (Score:3, Insightful)
Re:this guy is on drugs (Score:5, Insightful)
There's going to be some people who interpret the content of the blog the same as you and come to your conclusion. There will be others who intrepret the blog the same as you, and come to the opposite conclusion. But in the end, you both will be basing your opinions on bad data. He's effectively repositioned the argument right under your noses, and you and many other highly rated posters are all a-buzz...over nothing.
Politicians use subtle tactics like these to confuse us poor proles all the time. I can see how the guy became a billionaire now. What's a cynic to do in a world like this? :)
Re:this guy is on drugs (Score:3, Insightful)
The value of the product is key to the RIAA's requests for thousands of dollars in damages. The RIAA claims a value of CD cover price per song when in fact the Yahoo deal puts that value closer to $5 per month. Wal-Mart isn't likely to win $75,000 off me if I shoplift a T-shirt. Why should the RIAA be able to ask for thousands from individuals when they are willing to practically give their product away to large companies?
This logical disconnect is well known to geeks; now it's just becoming more obvious even to business-types.
Re:The world is geting smaller... (Score:2, Insightful)
yes and no. allofmp3 is high quality files. And it's like buying prescription drugs in canada: it's illegal, but not unethical.
The RIAA doesn't compute either (Score:5, Insightful)
If you stole a shirt from RIAA's Walmart, it would sue you $14.95 in loss/damages plus $1.5 million for pain, suffering, legal costs, etc.
I agree that Cuban's logic is flawed, but I might amend the argument. RIAA has tried to sue for silly amounts, somewhere along the lines of $2500 per song. I believe that the defendant could argue that since there is a legal $5/month service from Yahoo that a more resonable assessment would be $5 * number of months known to offend * a reasonable estimate of the number of people who got songs from your PC in a given month. It is that last factor that is different from Cuban's argument--unfortunately what a reasonable estimate is debatable.
So instead of these dumb multi-million lawsuits against teenage girls and grandparents that do nothing but make bad PR and settlemsnt at a small fraction of the original amount you'd do something like this:
$5 * 6 months * 500 USERS (not songs) uploaded to in a given month is...$15000. I'd bet that in most cases it is much less than 500 unique users who get all or part of a file from your machine when logged into P2P. In any case $15K is mcuh less ridiculous than millions but still enough to remind the offenders that it is wrong.
BTW, comapring copyright infringement to shoplifting isn't really accurate either because despite what RIAA says, violating copyright is NOT THEFT. When you steal a shirt you are denying the victim the use of said shirt. When you download music the artist (or more likely the publisher) still owns the rights and paying customers can still hear the music. Just to make it clear...
DOWNLOADING MUSIC IS *NEVER* STEALING...
HOWEVER...it IS violationg copyright... AND VIOLATING COPYRIGHT IS ALSO WRONG.
The problem is that RIAA et al want to prosecute people for copyright infringement much more harshly than deserved--more than what some people get for things like theft, assault and rape. A reality check is required for people all around.
Re:*sigh* over music (Score:2, Insightful)
RIAA vs Slashdot (Score:2, Insightful)
What is really strange, is how people are responding to this post. Many are simply ignoring the fact that services, Napster, Yahoo etc. are providing an unlimited amount of music, with small compensation.
They provide a service as cheap as a magazine subscription. Many people simply argue past the $5 a month of damages, others argue about the DRM, uploaders, but when it comes down to it, the RIAA is trying to play both sides.
They are trying to prevent piracy, and advocate cheaper "better" resources. They sue for thousands and sell their CDs for $10-$20, but yet offer for $5 a month all the music one can hold on a personal MP3 player.
What is next when the sales of box office movies to torn apart by a $5 subscription of online moves? Will there be more controversy?
The logic is wrong.... (Score:2, Insightful)
That doesn't mean I don't think that the money being asked by the RIAA is outlandish. But the principle he is presenting is flawed.
-everphilski-
Re:Upload, not download (Score:4, Insightful)
That's what they have to sell: the ability to hear the songs whenever you want. That used to be a working business model, since not many people owned the ability to make reasonable copies.
Now that they do, it sounds like they have two choices. They can either ask people to play by the expected rules of their old business model, before the technology changed out from under them, or they can make a new business model.
If it is your right to buy a CD and then make perfect copies for the entire world, they'll just have to raise the price of that CD. Say, a few hundred thousand dollars. Fine with them. As long as they sell a copy or two, they're making the same money.
Probably just one, to some guy who'll share it with everybody else. But he'll probably try to make back his investment, so he'll probably charge you. And he'll probably put some DRM on it. The guy's name is Steve Jobs.
Of course you'd be welcome to buy a copy, too, and kick that Jobs guy in the butt. How many CDs fit in your CD budget?
Re:The world is geting smaller... (Score:3, Insightful)
If I am not violating copyright by electronically purchasing a song from an overseas company (and, at least for the moment, I am not [theregister.co.uk]), how can I be violating copyright by transferring my legal purchase to my personal computer? Simply because it is digital?
Re:Upload, not download (Score:4, Insightful)
Likewise, I'm sure the indi venue is an insignificant portion of the audience market but I have no numbers to back me up.
The music radio is mostly clear-channel. I'm sure Satalite radio is clear-channel controlled. MTV is certainly biased towards the establishment. 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.
The industry has calculated methods of maximizing profit; 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.
So there IS an establishment that is trying to squash unsigned material, albeit indirectly through the reduction of avenues of distribution.
As a disclaimer, I have no association with the musical profession.
Re:Upload, not download (Score:3, Insightful)
In your dreams.
Without a license to distribute you have no defense and your case will be decided by a judge as a matter of law.
Re:Upload, not download (Score:5, Insightful)
"...and monopolizing all avenues of distribution, making sure that any artist who wants to have their music heard must go through one of the record labels."
Of which there are thousands, or perhaps tens of thousands. Some are big and huge and are members of the RIAA. Some are small and independent yet still belong to the RIAA. Some are small and independent and cool and don't belong to the RIAA. Some, like Magnatune [magnatune.com], are virtual. Some, like CDBaby [cdbaby.com], specialize in getting your stuff onto the legit download sites even if you're not signed to a traditional label. There's a ton of non-RIAA and unsigned music on the Apple iTunes Music Store.
It's your music... do what you want. If you want to get the potential of mammoth exposure and sales, in exchange for a loss of control and a much smaller portion of the selling price of your music, sign a recording contract with a big label. If you want a little more control and a bigger share of the profits, but with less of a budget, go with one of the cool indie labels. If you just want a little assistance but want to do most of the promotion yourself, try Magnatune or CD Baby. If you don't think the service that any of them provide is worth it, and you're lucky enough to have the means to record, produce, and promote your work yourself, then more power to you.
The fact is that in the record industry, just as in the software industry or a thousand other industries, nobody's going to give you a million bucks to do with as you please in creating and promoting your work, without wanting something back. Is this unfair? You bet. Can it make it tough? Of course. But this is not a "monopoly."
I don't think he looking at the bigger (Score:4, Insightful)
Re:Upload, not download (Score:5, Insightful)
Re:I don't think he looking at the bigger (Score:1, Insightful)
Maybe the recording industry is just too slow to realize the speed at which technology grows?
Their bad.
Re:Upload, not download (Score:3, Insightful)
No, I'm spot-on and you actually agree with me, which means you missed my point. :)
What you stated here is exactly correct, and is exactly why they target uploaders over downloaders. The issue is not the questionable legality of downloaded.
Re:Upload, not download (Score:3, Insightful)
Re:Upload, not download (Score:3, Insightful)
Cuban is no idiot (Score:5, Insightful)
Cuban is no idiot. He knows that the way to change things is to control the structure of the argument. The music industry has managed to paint their struggle for continued control as a fight between them and "evil music thieves," and now Cuban is reframing the argument so it revolves around the music industry's pricing policies.
Anyone who forms their opinion about music filesharing's effect on the music industry and on creativity solely on the basis of Cuban's comments is a bit dim. But that doesn't diminish the worth of what he's doing by shifting the argument. He's using the broad reach of his blog to re-think the big picture.
Re:The world is geting smaller... (Score:3, Insightful)
If the company would have relented up front, it would have been considered a compromise by both parties.
If the RIAA would have got their act together early on; offering reasonable prices and services in the digital age....then maybe they could have kept the geanie in the bottle.
Since they did not -- anything nowdays that is equivelent to the pricing found at the brick and mortars is going to be looked at (by a lot of people) as trying to sell icecubes to eskimos.
I honestly believe in the age of the internet where (some) honest people deserve the right to shop around for the best prices for goods and services --- that coming across something like "allofmp3.com" would seem legitimate. I mean, when I first saw it -- I could not believe it -- so I thought that I would be hearing about it being shutdown in days by the same forces that usually take "too good to be legal" stuff away and off the market.
The fact that I went back 6 months later --- and they were still there makes it legitamte in my eyes.
Copyright Damages Are More Complex (Score:4, Insightful)
Regrdless whether the plaintiff suffers any damages at all, and regardless whether the defendant obtains any unjust enrichment from the infringing content, a plaintiff may still elect to obtain statutory damages. The jury gets to determine the amount of statutory damages, but that determination can be no less than $750 PER WORK INFRINGED.
This exceeds $5 per month.
I disagree (Score:4, Insightful)
So while we hate the stupid prices, and the DRM's - I at least cannot say it is morally right to give the music I bought to strangers on the internet (or to download them).... As such when they sue - yes they can sue for more. I do not know how much is more valid - but $5/month is not an acceptable price.
Though the RIAA/MPAA is suing uploaders, not downloaders.
A new model of entertainment commerce is needed (Score:3, Insightful)
Once audio, video or print is turned into little ones and zeroes, it becomes impossible to control. You can wrap those ones and zeroes with some DRM pixie dust, but there's always some smarty-pants who can un-DRM them again. There are those still in denial about this, like the RIAA and MPAA executives, but history has proven this out in the last decade or so. Increasingly draconian laws have a short-term effect, but only postpone the inevitable shift to a different model.
Personally, when I get music or video, there are people I want to see paid for my privilege of enjoying the work. The writers, composers, musical artists and actors are at the top of the list, and also the professionals who capture and refine the work. Without them, there wouldn't be content to enjoy, so I want them to be paid. They need to be able to make a living.
Currently, though, a HUGE percentage of the money lines the pockets of people who have little part in the creative process. I don't care to pay them. They are not doing me any good. In fact, they often do me harm, screening thoughtful or poignant content out of the mix because it will somehow make them less money.
So, two problems - (1) we can't effectively control content in exchange for license fees in the digital world, and (2) we want to pay the right people and jettison the baggage. I propose that to solve these problems, a new economics of entertainment content must emerge.
Better, more informed and creative brains than my own need to noodle on this, and we need to quit wasting time arguing about the current, doomed paradigm of entertainment commerce. Of course, thoughts like these will threaten the barons of the entertainment industry - they are slow to move, and have no vested interest in seeing things change. But the status quo can't last forever, and is already on it's last legs.
Re:Upload, not download (Score:5, Insightful)
Yeah, its a "cartel".
Re:Upload, not download (Score:3, Insightful)
2. Prohibition, current (of drugs).
3. Copyright violations in P2P terms.
All of these are bans on activities that are widely practiced.
Tens of millions of Americans download music from P2P.
Tens of millions of Americans drink (and drank during the prohibition years).
Tens of millions of Americans use drugs.
Strange, that non-violent activities that such a large portion of the population participate in should be illegal.
We are talking about a ban on substances you can (by choice) ingest, and the extension of an intellectual monopoly by the government onto content holders.
I do not see how either of these protect inalienable rights, and I do believe that all three of these activities would receive a 'thumbs' up in a pure democracy (i.e. nationwide referendum)
Re:Upload, not download (Score:2, Insightful)
OK, I've heard of "trial by press". But have things gone so far awry that we now have the press awarding damages?
Serving, not uploading (Score:4, Insightful)
Making a backup is also making a copy. Are you meaning to say that I don't have the right to use my backup if my original gets destroyed? Next you'll be saying that I can't make a backup of that backup, even after the original is destroyed.
The symbol for copyright should be a burning candle with a cage of barbed wire around the flame, symbolizing that though you could light your candle at mine without diminishing mine's light, I'm still not going to let you copy my fire.
Re:Upload, not download (Score:3, Insightful)
Your mention of using news releases is incorrect; copyright law specifically mentions news reporting and comment as fair use and non-infringing. (source [copyright.gov])
One of the four factors used in determining fair use is "the effect of the use upon the potential market for or value of the copyrighted work." This is particularly important - if there is no effect, the case for fair use is stronger. Downloading a file has some effect, however, small, on the potential value of the work to the copyright holder. Uploading it has a much larger impact, as you are potentially distributing it to thousands.
So in that, it is possible to make a fair use case in personal use; but I suspect you'd lose because of the immorality of the thing. There is a reasonable expectation that you would have to pay for the album, because that's how the world works. If the goal of downloading is simply to avoid paying for it (not for the betterment of society, education, etc. which I consider the goal of fair use), it's clearly not protected.
Obviously, there's some debate here. Even the copyright office makes it clear that there are grey areas and that the best thing to do is consult a lawyer. But there are some guidelines and I believe that many people misunderstand copyrights and fair use - which has complicated this situation further.
No (Score:3, Insightful)
Not if they ask for statutory damages - $750 minimum up to 150K for willful infringement per work. Think the RIAA will ask for actual damages instead of this? Not likely.
It's good to be the content owner.
blah blah (Score:3, Insightful)
Re:Finding First Uploader, Counting Uploads (Score:4, Insightful)
That you'd consider this kind of indicates that you're treating the law as a machine, which can be spoofed. This is a mistake; there are human beings involved, and they're often fairly smart, too. Your scheme is so very simple that it is no work at all to see through. I'd watch it with the whole pride thing.
You may also be interested to read the essay "What Colour Are Your Bits?" [sooke.bc.ca].
Re:A copy of what? (Score:3, Insightful)
No, asking for a file does not necessarily equate to asking for a copy.
Directing a machine to copy the file does.
Unless I have the original, I can't make a copy.
Why not? If I take a photo of a painting, I've made a copy, but I don't need to "have" the painting to make the copy.
Your logic is equivalent to claiming that browsing the web is a constant copying of copyrighted content.
Well, it is.
I said nothing about public broadcasting.
Broadcasting is by definition public.
The FCC allows FM transmissions up to a certain level (50 mw?), and it's perfectly legal to use that technology to privately broadcast, say from a CD player so you can listen on a radio in another room, (wireless headphones are another example).
That's not broadcasting. A broadcast is a transmission to the public. It's also not distribution, because you're not sending it to someone else, and it's probably not copying. But even if it is any of those things, it's certainly fair use.
Are those illegal?
The devices certainly aren't illegal, and using them in the manner you describe isn't illegal, because it's fair use.
Are you claiming that IP based music streaming, such as the capability offered by Apple iTunes and hardware devices such as an Airport Express or Roku Soundbridge or a Squeezebox constitutes copyright infringement?
If you do it without permission of the copyright holder, and not for some fair use purpose, it's definitely copyright infringement. I can't remember the name of the company right now, but someone was successfully sued for doing exactly that. Apple had to get a license to offer their iTunes service.
How about if it's sent over 802.11?
If it's a broadcast, I believe there are some statutory licenses for digital audio transmission. If not, then you've got to either rely on fair use or get a license.
Is it copyright infringement to play music loudly enough that others can hear it (broadcasting via audio vs. RF)?
If it's not fair use, and you don't have a license, then yes.
What clearly defined distinction is there between loud music and RF transmission and Internet transmission?
There is essentially no distinction between loud music and RF transmission. If you play music in a bar or at a concert, you've got to pay for a public performance license. If you're just playing musically loudly for personal non-profit purposes, you're probably protected under fair use. Same thing with small scale RF transmission. On the other hand, if you're broadcasting to a wide area, then fair use probably doesn't apply, even if you are doing it for non-profit purposes. With internet transmission, the distinction is that it's necessarily a digital audio transmission (RF transmission might be digital, in which case it falls under the digital audio transmission rules).
Re:Upload, not download (Score:4, Insightful)
In order for the RIAA to go after *downloaders*, they'd have to *upload* to the downloaders. That makes their case something more like entrapment, I'll let a lawyer chime in with the specific term. Basically, how could the RIAA sue someone for downloading from them? Didn't they give permission to download when they posted it for upload?
I think that would undermine their case and a good lawyer could get it thrown out on that.
So instead they go after uploaders, because all they need to do for that is take their hacked client, connect to the network, search for the artist they've chosen to protect, then run a script that browses all the users and identifies the largest repositories, then crawl those repositories, take the IP address to the court for the subpoena, and go from there.
It's pretty obvious why they go after uploaders. :)