Record Company Collusion a Defense to RIAA Case?

NewYorkCountryLawyer writes "Is collusion by the record companies a defense to an RIAA case? We're about to find out, because the RIAA has made a motion to strike the affirmative defense of Marie Lindor, who alleged that "the plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have" in UMG v. Lindor."

We all saw it coming.

[sabernet]

Who didn't know they were going to eventually use this? This is why the RIAA and not Empire, BMG, etc... brought all these suits, so they'd have this last ditch effort to break away should this finally explode in their faces.

Still, I wanna shake this woman and her lawyers' hands for this.

History of Collective Rights Organizations

[WhiskeyJuvenile]

Given RIAA appears to be trying to do to sound recording rights what ASCAP, BMI and SESAC have done to performance rights, I would expect that the antitrust claim probably has some legs under it, given the consent decree resulting from the DoJ Antitrust Division's lawsuits against ASCAP and BMI in the '40s and '50s.

Does prior ruling validate her claim?

[Anonymous Coward]

If previous cases ruled in favor of the RIAA showed payment distributions being equal to each label within the RIAA, regardless of which labels specific copyrights had been violated, I think she'd have a pretty good claim there.

I'm not going to do any legwork at this late of night, but past victories for the RIAA, depending on the specifics, might come back and bite them on the ass.

One can only hope...

Re:Plenty of competitors face common civil opponen

[mr_matticus]

No, it's not like milk at all. If you're going to go there, and I don't think you should, it's more like Coke or Pepsi.

Your magic, free Pepsi machine is knowingly interfering with the undisputed property rights of Pepsi. Pepsico holds the exclusive rights to make Pepsi. Coca-Cola holds the exclusive rights to make Coke. You do not have the right to give away more Coke or Pepsi than you purchased. If you bought a bottle and magically made more, congratulations, but you can't give away or sell even a single drop more than that one bottle of soda.

The rest is true about the RIAA and their greed and general worthlessness. But you're skipping the part where you consider that what you're offering for free isn't yours to offer. You can make something similar (as long as it's not derivative) and give that away for free. You can record a cover of a song and give that away without worrying about the RIAA (you may need permission from other entities). You can't give away something that has commercial value and is owned by someone else.

Re:We all saw it coming.

[zaydana]

The problem is, the artists have no say over how their music is used. They can cry all they want, but at the end of the day their music belongs to the record label, and what they think doesn't count.

The artists asking the RIAA to stop would be like a soldier asking their country to not go to war. You don't pay out on the soldiers when you don't like that a country is fighting a way - you get angry at the people that made the decision to go to war.

Re:I'm tired of these defenses.

[21st Century Peon]

Ok, then put it another way: Why do you deserve to have the song for free? (Just to be clear on my general position - RIAA = bad, but paying people for their work = good, though I'm not getting into a row about relative revenue-pie-slice sizes)

Re:I'm tired of these defenses.

[mariushm]

If you couldn't obtain it for free, you would pay for it.

Not necessarily. I would borrow CD's from friends or trading with them, or I would gather 5-10 friends and buy one record with them and so on.

Some people don't realize there are millions of people who really have other priorities in life then to buy a CD for 30 dollars when they earn 300 dollars a week or even less and the rent is 200 dollars and the various monthly fees are 60 dollars. But they would buy at least one CD a month if the CD was 9.99 dollars.

Some people don't believe in buying records when the music on those records is freely available on FM radios, they would copy it anyway from the Internet, but these people would gladly go to a concert if it was possible. For example, I would NOT pay 40 dollars for a Yanni CD but I would pay 100-150 dollars without blinking for a concert ticket if Yanni or Mike Oldfield concert in my country. These are concerts where you "feel" the music, if you're at a live concert.

Furthermore, I believe that downloading music often increases sales, because I can't remember how often I'd recommended bands and albums to other people, which later on have purchased tracks or albums from iTunes. I may not be buying, but I'm referring people.

Check out the forums of Digitally Imported for example, and see what people are saying at various tracks, you'll see lots of comments like "Wow! Where can I buy this mix?" Would you consider that by listening to that mix on DI.fm, that artist lost a sale? He won hundreds just by gaining popularity and getting his work known.

Re:We all saw it coming.

[rmstar]

Such stunts just divert attention from the fact that the RIAA, and their colleagues in other countries, are winning this fight. They are actually marching through, encountering very little resistance. That someone actually up to this and wins his suit, or even manages to make the RIAA change some technicality in how it prosecutes (because if this woman wins, that is what will happen: they'll just change a technicality) is a complete distraction and matters zip in the grand scheme of things. A whole industry is emerging around the task of tracking, finding, and extorting file sharers. It works fantastically well.

It just isn't being said often enough: if you are sharing copyrighted files using standard networks (bittorrent, emule, etc), you are playing with fire. Sorry, but everything else is wishful thinking.

Re:Cue the /. RIGHTS commentary.

[Half-pint HAL]

If it can't be done without technology, it can't be a right. I can't make a perfect copy of an obscure dance CD without tech, so it can't be my right.

If we repealed all copyright tomorrow, we couldn't make it retroactive as people in the past were given a contract by the law for x years. Holywood production would cease -- why spend x million on a film which will be available for free on the net after the first public showing? Why spend x thousand recording an album when it might only sell one copy (to MrUpload69 on Mp3Swap.com)?

OK, so people will still do things "for the love of it", but they are already doing so. Have you any idea how much dross is on YouTube and MySpace Music?

Ah, but that's OK, because we can have the TV, radio and press tell us which ones are worth watching. Except without copyright, there's no way to generate income in the press.

Well, peer review then. Sorry, reviewing is a full time job. If you review one evening a week, you only get through one album -- if that. How can you compare what's available if you're only hearing a tiny fraction of what's there?

And can you trust the reviewers? If there a competition on MySpace conducted by public poll, you can normally predict the winner based on the competitors' friends lists: the one with the most friends wins. Web 2.0 is anything but objective.

HAL.

Re:Legal collusion

[Anonymous Coward]

I somehow doubt the courts see illegal file-sharing as "trade." If they were suing rival record companies for certain reasons, yes, but I don't see that prosecuting copyright cases jointly as a restraint on trade.

Parent is using a very narrow definition of trade. The court might recognize that the core mission of the RIAA is to restrain conditions that affect the open marketplace, and therefore restrain trade.

I see a parallel with railroads of the 1890s that selectively enforced "no trespassing" where roads crossed railroad tracks, to force farmers to ship produce by rail rather than more cheaply by wagon. In some parts of the US, private railroad companies were able to dictate very profitable shipping charges by abusing laws not normally associated with trade to block alternatives.

Much as those railroads abused private property laws to shape the market so they were the only possible way to move freight, the RIAA is using intellectual property laws to shape the market so its members are the only way to distribute music. It is appropriate to challenge this.

Re:Here is why it *IS* economic collusion:

[NewYorkCountryLawyer]

If the RIAA labels were actually competing among themselves, then any one of them would be happy to see the others suffer alleged loss of sales. Paying RIAA lawyers to safeguard their alleged competitors' profits is therefore direct anti-competitive collusion, rather than mere pooling of legal costs: they pay shared lawyers to perform actions which they know will support their "competitors". If real competition between labels existed, then individual labels would reduce their own prices to make official purchases as attractive as file sharing, and they would provide vast band sites to attract the purchaser, and broaden their music spectrum away from the incredibly narrow current crap, and entice fans into buying the physical albums and accessories later for profit, as fans like to do. (Often much later in life, when they have more money.) In a nutshell, they would compete on product. If you stand back from this whole scene and try to see it through the spectacles of a free market and competition analyst, you'll find none of those elements present in their music marketting. RIAA labels simply do not respond to drop in sales by reducing their prices or raising their quality and music coverage, like indies do. It's often described as a cartel, but some cartels are relatively shallow and defensive, whereas this one effectively has the entirety of public media in its grasp and the ears/wallets of politicians too, and has a strategy based on offence and intimidation. It is about as malevolant and anti-competitive as you can get without breaking kneecaps. And while they don't break kneecaps, they certainly have no compunction about destroying lives economically, based on legal theories which they lobbied to create. Their slimy lawyers will probably slither out from under a charge of anti-competitive economic collusion because the legal system is driven by technicalities rather than substance. But the RIAA labels are certainly guilty as sin of it. They lost any concept of competition between them long ago.

Excellent comment, Morgaine. Thank you.

I predict that they will not be slithering out of this one. Their brief is entirely frivolous, and will not make a positive impression on Judge Trager.

And by the way, they do destroy lives, and more than just economically. Many of the people victimized in this onslaught are ill equipped to deal with the stress and anxiety the RIAA's lawyers have caused them.

Re:Metallica vs downloads

[Reziac]

So what about all my old vinyl that has not been and will NEVER be released on CD? don't I have a right to format-shift it just as I would with a CD? how do they lose money if someone else happens to do the format-shifting for me?

The artist who made my favourite album just queried its publisher on my behalf, and was informed that no, it would NEVER be released on CD. This makes no one any money, so where's the loss if someone rips the thing and we who own the LP download it? (In fact, the artist sent me copies of the few rips he had!)

Consumer collusion

[Anonymous Coward]

Consumers could create similarly effective collusion by declaring by the millions that they have downloaded music, requesting legal action against themselves.

If the numbers were big enough, literally millions, preferably concentrated in a local area (let's say New York City or New York State), where the court system would suddenly face prosecuting millions of people, sending them to jail (since all consumers would refuse to pay fine, they would insist on going to jail) - suddenly the whole issue would get into a real context.

It would reveal that that an entire city of state could be crippled by removing considerable portion of the work force, it would help to start up nation or even world-wide recession. It would be calculated of course that how much would it cost taxpayers to prosecute and keep in jail millions of people for illegally downloading music.

At the end of the day, politicians, lawmakers and society would have to come to the conclusion that the interests of RIAA is behind the interest of the cities, states, and taxpayers.

The idea is not new and fully tested: Ghandi did it very successfully.
The British had to realize in India, that they couldn't put and keep in jail an entire country for violation of laws.

So... who wants to start up organizing the world-wide civil disobedience movement to put some salt into the gears of RIAA?