Apr 13, 2009
Posted by: Hitsville

Thoughts on the “three strikes” law

The RIAA and MPAA have not been coy about suggesting that what the U.S. needs is a “three strikes” law like the one under consideration in France, under which serial illegal downloaders, say, would lose their internet access after a series of warnings.

Hitsville favors this approach if the principle is extended to other aspects of the debate.

If Mitch Bainwol, the head of the RIAA, lies three times to reporters via email, he loses his internet access. If he lies three times on the phone, the RIAA has its phone lines cut off.

If the RIAA files three frivolous lawsuits, it loses access to the courts.

If Warner Bros. is found to have not paid three artists their royalties, it is prohibited from selling CDs. If Sony records is found to have paid off three radio stations to play songs by its artists, in violation of federal payola laws, it loses all access to terrestrial radio.

Am I on to something?

Mar 17, 2009
Posted by: Hitsville

Are the anti-RIAA forces taking the wrong tack?

Ars Technica is always impressive; the site has good reporters and good editing. Indeed, it reports! But consider its latest story from the front lines of the RIAA’s war on file-sharing.

Now, the RIAA says it’s stopping the mass lawsuits, but for various reasons it’s continuing with the ones already in the pipeline. The Ars story is about one of those cases.

Here’s the impression you take away from it: A woman with a rudimentary understanding of computers gets dinged by the RIAA for file-sharing, but says she doesn’t know how to download. She thought she was the target of a scam. It wasn’t, and she was found in default in a federal case—but fortunately some local law professors stepped in and are helping her out.

A heart-tugging story, no?

But … a lot of this seems fishy. She claims she was only a basic computer user and her husband didn’t use the family computer at all. That’s believable as far as it goes, but then we hear that her two kids, 19 and 21, didn’t use it either … and didn’t have computers of their own.

That’s less likely, but god knows not every kid is Twittering these days.

Read the Ars story carefully, however, and things get fishier.

Our computers carry a lot of incriminating information about us, like it or not. The woman’s computer?

[Her] home computer actually became nonfunctional in the spring of 2007 and was removed from her home by her brother, who took it to his house to fix it. He found a machine infected with “one or more viruses” and then replaced the hard drive, recycling the original.

This doesn’t quite track. If it was “non-functional,” how did the brother find the viruses on it? And if you have viruses, you either clean them out or, as a last resort, wipe the hard drive. Viruses are software issues. They don’t ruin hardware.

And note how this practically off-the-grid family suddenly has a brother who’s swapping out hard drives like a pro.

Track the chronology carefully and it certainly seems possible that there’s a different scenario: The woman could have been getting notices from the RIAA in 2007. Her hard drive is suddenly “non-functional” and, conveniently, disappears. She decides to play dumb. (Real dumb—the story says she’d been “personally served” with legal papers a year ago.)

The RIAA’s legal campaign against file-sharers is misguided and destructive and counter-productive, the dangerous flailings of a wolverine with its leg caught in a trap.

It is also, in its mass-attack strategy, certainly likely to hit a few innocent people.

The opponents of it like to cite the examples of 70-year-olds, or 7-years-olds, who for one reason or another have their names turn up on subpoenas.

Nothing wrong with using whatever means are available to undermine a corrupt industry’s crazy and damaging legal campaign.

But as the Ars story suggests, here’s also going to be a category of cases where the subjects make some bad decisions. Jammie Thomas, who ended up getting fined more than $200,000, tried a variety of things to explain away the downloaded songs on her computer, but the jury looked at, among other things, her long-running use of the screen name that downloaded the songs and didn’t believe her.

Thomas is getting a new trial, for other reason, and that’s the point. Opponents of the RIAA should be attacking it head on, and not waste time focusing on the RIAA’s missed shots—particularly when the shot may not have missed in the first place.

Mar 12, 2009
Posted by: Hitsville

How the music industry crashed and burned—Part III: An ongoing chat with author Steve Knopper about ‘Appetite for Self-Destruction’

knopper.JPGI’m chatting with Steve Knopper, whose new book, Appetite for Self-Destruction, charts the travails the music industry has been going through, Part I is here. Part II is here.

HITSVILLE: I was just thinking about your list of what a record company does: “signing talent, buying studio time to make albums, bribing radio stations to play the albums, bribing record stores to display them prominently and bribing journalists with free albums to write about them.” Let me add: Manufacturing and shipping CDs and doing muscular national marketing. Look at those two lists, and really, with maybe one exception, you could make the argument that, in theory, everything on them can either be done by any band or … isn’t really necessary any more. (I think that the argument that some strength in national marketing is still important, in terms of getting artists on magazine covers and TV shows and so forth.)

Now, I’d be interested to hear if you think that’s all really true, yet. I felt like I needed the weasely “in theory” in the sentence above because I think it’s clear we’re still in a transitional phase. Has a star yet been created outside the label system? I thought Clap Your Hands Say Yeah was a candidate, but their presence seems to have faded. Industry haters like me love to visualize a world in which the labels don’t exist. Will all that is solid in the record labels really melt into air? Or are they going to still be around and rambunctious?

KNOPPER: It depends on what you mean by “star.” Some acts have broken through via the Internet, like the one-man pop band Secondhand Serenade or the MOR singer Colbie Caillat, both of whom became experts in MySpace marketing before becoming big enough to attract a major label’s attention. But yes, even these examples speak to the reality that you need a major label to get REALLY big. That’s because the most efficient way to turn an unknown artist into a star remains the traditional route—sign with a label, use its connections to get on the radio. But with radio and the labels shrinking, I believe we’ll soon start to see bigger examples a la Secondhand and Colbie or even OK Go, a Chicago rock band that made it big based on a random YouTube gimmick sensation. (Curiously, OK Go were signed to Capitol/EMI at the time.) I don’t see labels melting completely. I mean, you and I could own the Beatles’ catalog and make enough money off it to be pretty dang rich. And you’re right, some of the marketing and publicity functions labels do are difficult to find elsewhere. But they’re shrinking, even more so with the recession, and we’re already seeing artist managers take over the traditional functions of some of the labels. That will probably continue to happen on a greater scale.

Mar 09, 2009
Posted by: Hitsville

The facts about the RIAA’s retreat on file-sharing suits….

… come at this very strong blog, Copyrights and Campaigns, the work of DC lawyer Ben Sheffner. He does a quick recap of how the retreat was first reported and covered since. Nothing really earth-shattering, just, you know, the facts.

He also writes lucidly and candidly on an ongoing Patterico brouhaha and the Jammie Thomas case—that’s the one where the RIAA took a file-sharer to rial and got a judgment.

Most amusingly Sheffner, who is apparently a Republican, is a strong supporter of the RIAA’s file sharing suit, for all sorts of reasons, some of which are detailed here.

He’s wrong about this*, but it doesn’t take away from the substance of his blog. He seems to be pretty intellectually honest.

* For the record, the RIAA’s suits are ineffective; file-sharing has grown immensely since their inception. They are a distraction; the industry should have been harnessing the new technology, not fighting against it. It’s a PR nightmare; it is much easier now to root for the industry’s downfall, whereas it has deserved that fate for many years, for reasons I’ll detail in the next paragraph, and never managed to engender such hostility. And finally it’s harmful to the tiny tiny percentage of users who are getting ensnared in this, the low-hanging fruit of the most unsophisticated file-sharers who don’t know how to minimize their risk in various ways. These people are like the kids who are rotting in Texas jails for minor marijuana infractions.

Why does the industry deserve to be dismantled? Because it has been paying radio stations to pay its music, and it has never paid artists their royalties, and has used its power to make it difficult to hold it to account.  The indignance we hear about file-sharing, a minor offence, has never been demonstrated about the Great Royalties Ripoff, which is a massive industrywide fraud.

Mar 06, 2009
Posted by: Hitsville

How the music industry crashed and burned—Part II: An ongoing chat with author Steve Knopper about ‘Appetite for Self-Destruction’

knopper.JPGI’m chatting for the next week with Steve Knopper, whose new book, Appetite for Self-Destruction, charts the travails the music industry has been going through, Part I is here.

HITSVILLE: You do a great job of setting the scene. You don’t start with Napster: The roots of the industry’s decline go much deeper. It’s one of my cherished contentions that the industry is built on three footstool legs of fraud: Payola in radio, price-fixing at retail, and nonpayment of royalties to artists. If the digital age had never come, would things have ever changed?

As I was writing the book I started asking myself, what does a major record label do (traditionally)? And I came up with: signing talent, buying studio time to make albums, bribing radio stations to play the albums, bribing record stores to display them prominently and bribing journalists with free albums to write about them. That system worked for a long, long time, and it had its merits — without it we probably wouldn’t have Thriller or Toni Braxton or Pearl Jam’s Ten. But the labels took it too far by the ’90s. Even before the Internet there were signs that people wouldn’t replace their LPs with more expensive CDs forever. As you know, in the late ’90s, the labels artificially went around this problem by selling entire CDs containing one good song, and that flowed into the teen-pop era. Consumers were complaining about this—as a fan of Smash Mouth’s “Walking On the Sun,” I know I was!—even before Napster. So there probably would have been some form of sales rebellion, or maybe new singles-only labels, or something, if there had been no MP3, Napster or Internet. But “if the digital age had never come… ” is a hard thing to speculate about! If cars had never come, would the perfectly reliable horse-and-buggy industry still be thriving today?

HITSVILLE: Yeah I think that’s a good point; some sort of exhaustion might have set in. When people talk about the benchmark from which CD sales have fallen, they often neglect to mention that the ’90s were also built on the Great CD Rebuying Spree, where the labels took music they’d already sold one and repackaged it for us at twice the price! You detail this delightful story in your book. Incredibly, it’s almost the story of a series of accidents. The CD revolution happened almost despite the industry. Were any lessons learned? And do you have any estimate of how much of the 90s bounty came from catalog sales?

KNOPPER: Good question. I went back to my ’90s Soundscan reports and couldn’t find any data on catalog sales. I think the ’80s were really the time, generally speaking because obviously I have no data, when people replaced their old LPs. By the ’90s, with desirable new artists like (at first) Nirvana and Snoop Doggy Dogg and (later) Britney Spears and Backstreet Boys, people were well ensconced in CD-buying habits. Top label executives learned exactly the wrong lessons from the CD adoption process and subsequent boom. They learned that if they could control everything, from distribution to retail, just like they did with LPs, they could make a LOT more money on CDs. They conspicuously did not learn that embracing a new technology, which of course they did with CDs, eventually, could help their industry and lead to even greater sales heights. This lesson could have proved useful when Napster et al. rolled around.