EFF's Fred von Lohmann replies to Politech over RIAA lawsuit [ip]

[Declan McCullagh <declan () well com>]

Previous Politech message (probably just a temporary location):
http://politechbot.com/pipermail/politech/2003-September/000002.html

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Date: Wed, 24 Sep 2003 18:00:04 -0700
Subject: [Politech] RIAA responds to Politech over EFF note on lawsuit 
amnesty [ip]
From: Fred von Lohmann EFF <fred () eff org>
To: Declan McCullagh <declan () well com>

Declan,

A brief rejoinder seems in order, in light of Cary's letter to the editor 
responding to my op-ed regarding the RIAA's Clean Slate "amnesty" program.

First, Cary fails to respond at all to the main point of the piece -- the 
proposal that the major record labels offer a *real* amnesty to 
file-sharers in exchange for a reasonable monthly fee. This is what the 
music publishers opted to do in the face of that earlier scourge of 
copyright, broadcast radio. Today, ASCAP and BMI manage to divide up a very 
large pot of money for their members, without insisting on control over 
what radio stations play or what kind of transmitting equipment they use. 
Sure beats suing thousands of individuals in a futile attempt to intimidate 
tens of millions more.

Second, Cary claims that the RIAA's "amnesty" program provides assurance 
that repentant file-sharers "won't be sued by any of the major record 
companies." Well, that's not what it says on the "Clean Slate" description 
page (see http://www.musicunited.org/cleanSlateDesc.pdf). There, the RIAA 
merely promises that it will not assist copyright owners in suing you. It 
does not promise that its record company members won't sue you anyway. If 
they decide to sue you, they can use DMCA subpoenas to get your name from 
your ISP, then can subpoena RIAA records to find out whether you signed up 
for the "Clean Slate" program.

Third, Cary asks "what would be the rationale -- public relations or 
legally -- for suing someone who has promised to stop illegal behavior when 
there are tens of thousands of other targets?" Yet the RIAA is refusing to 
grant amnesty to anyone who it has already begun investigating (and woe to 
the unlucky ones who sign the "amnesty" before discovering that they are 
already under suspicion and thus ineligible). So evidently there is some 
rationale for suing those who promise to stop file-sharing, since the RIAA 
is reserving the right to do it. Perhaps to "send a message" as Cary would 
say. Can Cary promise that no other copyright owners will take the path 
he's blazing?

Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation

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Subject: Re: [Politech] RIAA responds to Politech over EFF note on lawsuit
        amnesty [ip]
From: jason <jaegner () mindspring com>
To: Declan McCullagh <declan () well com>
Date: 24 Sep 2003 21:26:44 -0400

This gets more interesting (and sad) every day.

"In fact,they will get exactly what we can provide: a promise that if
they keep their word, they won't be sued by any of the major record
companies who happen to be the sole plaintiffs in the current wave of
copyright infringement actions that seem to have Mr. von Lohmann so
exercised."

Followed by:

"It is true that we can't promise that other copyright holders, such as
songwriters and music publishers, will not sue participants in our
amnesty program."

Doesn't that prove Fred's point?



The recording industry does make one good point:

"The irony of all of this is that Mr. von Lohmann only last year
attacked the recording industry for not suing individual file sharers,
telling Billboard magazine (and many other publications) that if we were
really serious "about stopping piracy" we should be bringing "lawsuits
against the actual people sharing the files."

I think that's a good point.  If there is a valid fair use application
for filesharing networks, the creators of those networks should not be
liable simply because their product could potentially infringe
copyrights.  However, I think the recording industry is screwing up
because their targets are overly broad.  The targets should be those
individuals that are intentionally and knowingly infringing copyrights
FOR PROFIT.

I believe that the RIAA is making a perfectly understandable mistake:
when presented with a disruptive technology, they're equating profit
with potential theft.  That nonsequitur precipitates the slippery slope
that they're currently sledding down.  The people actually stealing
money from the recording industry are selling burned CDs all over the
world (and have been stealing music since the 8-track tape).  The people
being sued by the recording industry might (but probably don't) fall
into that willful violation category.

I re-emphasize my belief that the industry has brought this backlash
upon itself by extending copyright terms for far too long.  When you
attempt to over-own ideas, don't expect people to take it lightly.

This is not an unsolvable problem.  But we can't even begin to work on
it until the copyright-capitalists abandon their lobby+litigate
mentality and come to the table with their customers to work out a
compromise.

Like Hugh said: "Let's come together."

Your customers are at the table, Mr. Sherman.  Where are you?

--Jason
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