Lower court’s ruling stands: Downloading music is not a crime

[Amerigo Vespucci]

Source: The Raw Story

(Reuters) – The Supreme Court let stand on Monday a ruling that a traditional Internet download of sound recording does not constitute a public performance of the recorded musical work under federal copyright law.

The justices refused to review a ruling by an appeals court in New York that the download itself of a musical work does not fall within the law’s definition of a public performance of that work.

The not-for-profit American Society of Composers, Authors and Publishers (ASCAP) appealed to the Supreme Court. It said the ruling has profound implications for the nation’s music industry, costing its members tens of millions of dollars in potential royalties each year.

The federal government opposed the appeal. U.S. Solicitor General Donald Verrilli said the appeals court’s ruling was correct and comported with common understanding and sound copyright policy.

Read more: http://www.rawstory.com/rs/2011/10/03/supreme-court-rejects-internet-music-download-case/

[lob1]

1. This really sucks for the artists.

[NYC Liberal]

5. Dumb headline. All this ruling says is that the act of downloading

is not a "public performance." The ruling is absolutely the right one.

Contrary to the headline, the court did not say that unauthorized downloading of music is not a crime.

[joshcryer]

22. Yes, it does. The crime is distribution, not downloading.

It has never been illegal to, for example, own a bootleg, but it is certainly illegal to produce or distribute bootlegs. It's the right decision.

[NYC Liberal]

26. It's the right decision, but it doesn't say what you think it does.

ASCAP argued that downloading a song was a "public performance" so they could sue people for royalties. That has nothing to do with whether unauthorized downloading is illegal or not.

Also, both uploading and downloading are indeed illegal: http://www.copyright.gov/help/faq/faq-digital.html

Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so?
Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution.

[saras]

6. No it doesn't. Just for Sony, et. al.

The recording industry isn't an ordinary industry with a new problem regarding intellectual property, they're a profoundly corrupt industry that's been that way since the very beginning. Patent shenanigans of all kinds slowed the development of radio and audio, with such examples as RCA, when making early radio transmitters for radio stations, insisted on an intellectual property provision that gave them control, or censorship power, over what you could broadcast with their transmitter. And since they owned patents that made their transmitter pretty much a monopoly...

Musicians, in case you hadn't noticed, are doing better than any time in the twentieth century. There are proportionately more of them, more making a living at it, a wider variety of music, new and old, to choose from, and, frankly, better music than ever before. The only thing there isn't are the blockbusters that "everybody" buys, and that's because people are more diverse than they used to be, not because the music isn't as good. I mean, do you really WANT to buy the same album as your parents and your kids?

Among the many benefits of the wholesale rejection of the "music industry" have been:

the fact that audio recordings are, in general, no longer out of print, and you can support the musicians you want to, not the ones the major labels tell you it's appropriate to listen to and buy.

The recognition that "top 40" has ALWAYS been product, and has NEVER borne more than a coincidental relationship to what will be remembered later as "good music".

The entire DIY/punk/indie/home recording phenomenon, and its byproduct...

Electronica, anti-folk, and every other genre not designed expressly to sell records or fill concert halls.

All those people you see on YouTube making really amazing music in a way that nobody else does.

Music no more needs the music industry than sex needs the sex industry.

[Exultant Democracy]

9. No it doesn't. With the internet artist can go direct, skip the middle men and still make more money

Radiohead is a great example of this http://www.telegraph.co.uk/finance/markets/2816802/Radiohead-to-give-away-new-album.html

There are also plenty of new talents that manage to make a very reasonable living despite the fact that they are unsigned, new to the industry
http://avasamattylove.bandcamp.com/,
or producing music that doesn't fit inside of the corporate box.

[Brian Okamura]

10. The artists get paid for their labor.

The artists get paid for recording the song. They also get paid for performing it on tour. They get paid for their labor, just like all working class people. That's all workers usually get under capitalism--or socialism. "Intellectual property" is a myth cooked up to turn inventors, composers and performers into minor "capitalists," which is b.s. The product of their labor should be publicly owned from the get-go.

[JohnnyRingo]

17. Sucks for the writers.

As I understand it, the RIAA collects royalties for performers.

That's why the court had to decide if it was a live performance, because recording even artists have to cough up to ASCAP if they cover a song in public.

Here's an argument in favor of downloading music from Janis Ian, who points out how she doesn't own her out of print music and is not even allowed to release her old albums. Without downloads, no one would ever hear her.

http://www.ru.org/janis-Ian.htm

[fascisthunter]

28. no it doesn't... it sucks for parasites living off of artists

[RC]

2. They either had to decide this way or lock up most everyone with an iPad.

We don't have enough prisons yet.


Besides it is not the artists that are getting the bulk of money anyway.

[Swede Atlanta]

3. The artists want it both ways.......

The reality today is that music, once released, is readily available in digital format and "freely" exchanged. We need to find a new way to meter usage but that technology, to my knowledge, does not exist. I appreciate the concerns of the artists but let's propose solutions and not just say that file sharing is bad. Even before digital format I could take a friend's CD and record it to a tape. What is different today with digital media?

[bainz]

7. The difference is the ease that the media can be distributed

The difference is the ease that the media can be distributed to a wider audience without any extra cost on the distributor.

Copying a tape, left a single copy. With P2P tech, while you download a song, movie, etc, you are also distributing it to many others.

I don't recall people getting raided for copying a CD or tape, but there were take downs for those who mass produced content.

I see it as theft, however, I also see the fines and penalties as being very unbalanced.

[caseymoz]

23. Wrong, duplicating and downloading fail the logical test for "theft."

Here's why. Theft has two qualities: 1) The thief gains possession of some item without trade or consent of its previous owner. 2) Through gaining possession, the thief deprives the owner of possession or use of the same property. Every act of theft has to have those two qualities.

Downloading has the first quality, but not the second. Suppose, at some future date we could "record" material items (probably today with the advent of 3-d printers), and I break into your house, copy your iPad on the spot and leave without taking it. I might be up on charges of trespass or burglary, but do you really think that constitutes theft? The only reason why you don't see the distinction is that we've never in our history had to contend with reproducing things this easily. The whole concept of theft originated from the tangible world, which is dominated by scarcity.

This two step test also follows with the disclosure of state secrets. It's not theft. The state still has the same data; they just aren't secrets anymore.

Though it isn't theft, it may be something else, some other immorality that we need a word for now. The victim isn't deprived of what they own; what they own is devalued. That's fundamentally different; the whole concept of theft is connected to the tangible world and not to intangibles. Otherwise, our thinking will get very confused very fast. The expected value was based on scarcity. If you can reproduce it at will, it's not scarce. So, why should the government come in and enforce scarcity so a few people can get artificially wealthy? That's a bad government intervention.

Moreover, the value of a song isn't dependent on any single person downloading it. To accuse a person of stealing due to the actions or reaction of thousands or millions is to misplace responsibility.

[sofa king]

25. Metallica owed its early popularity to tapes.

Ride the Lightning had been around for years before I ever saw the album cover. They even tried to stabilize the price of music by deliberately putting the price in the title of one of their subsequent albums: The $5.98 EP. Now renamed.

Then, when they became a has-been band entirely dependent upon sales of their earliest work instead of whatever they'd just pooped out, they became protective of their rights--the same rights which were freely violated to gain their original success.

[Brian Okamura]

12. Yes, they do want it both ways, and I do not "appreciate their concerns"

Musical artists are workers. They get paid for their labor in recording sessions and on the road. Why turn them into capitalists?

[JoeyT]

13. They insisted that was going to be the end of music too.

The music industry predicts creative armageddon in every format they can't control completely. It wasn't just MP3s and tapes, they threw a fit when recordable 8 tracks came out, another fit for VHS, another fit for cassettes, multiple fits for CD-Rs, and are in the middle of their current fit over mp3.

If the argument had any merit, they'd have collapsed forty years ago.

[JohnnyRingo]

18. I agree.

When digital cameras were introduced, did Kodak sue to stop people from switching formats to save their film labs? That's what the record labels did when cassettes were invented. They were shot down in court, and did it again when rewritable CDs came out. If it was up to the recording industry we'd still be cranking up an Edison cylinder on a Victrola.

I argue too that downloads are the only reason prerecorded CDs don't cost $50. Even without the expensive vinyl pressings, we still pay nearly $20 an album. It just happens to be the same price when we legally download bits to our music players.

Here's an argument in favor of downloading music from Janis Ian, who points out how she doesn't own her out of print music and is not even allowed to release her old albums. Without downloads, no one would ever hear her (and many, many more artists).

http://www.ru.org/janis-Ian.htm

[joshcryer]

21. Yeah. Digitial distribution has changed everything for independent artists.

It's appalling to me when artists side with corporations who want to actually hurt them, because if they restrict downloading, the corporations will have control over the distribution methods.

[DeSwiss]

4. K&R n/t

[stockholmer]

8. great news! now to smash back the EU extensions of copyright...... long live ceativity

http://www.piratpartiet.se/international

[Lionessa]

11. If we can record off the radio or a tv concert, as we can, I never understood how

this is really any different. Good ruling imo.

[TheMadMonk]

15. Those things are all illegal, but not generally prosecuted unless...

...redistributed.

Exception, get caught with a camera or recorder at a public performance and odds are the remainder of your day (and the next year or two) will be "interesting" in the manner of the old Chinese curse.

[Downwinder]

14. If I am walking down the street whistling a tune, I am supposed

to pay ASCAP. Fat chance!

[TheMadMonk]

16. If true to the score, then theoretically yes. But like you say fat chance. /nt

[DonCoquixote]

19. The artists have been screwed

for decades. Read the Biography of any major artist, in any genre, and you will see how they had millions taken from them. People like Elton John and Billy Joel nearly went broke, not from drug habits, but from scumbag companies that took most of what they earned, until very late in their life, they managed to get the money from touring, which, btw, the RIAA is trying to introduce laws to get THAT money too. There were cases like Jon Fogerty, who could not record for the better part of a decade because he was sued for playing his OWN music.

Meanwhile, artists like Lily Allen, Adele, Alicia Keys, and yes, Lady Gaga got famous using the internet, because the mainstream record companies all thought that they did not fit the standard image for a successful female recording artist (i.e. supermodel skinny and natural blonde that needs auto tune to actually sing).

[sofa king]

24. Every time.

I've had several friends who are professional musicians, and up to the late '90s, they all had the same problem: starting out, a label would pick them up, record their first albums, often loaded with material already polished by years of play and practice, and then sit on it while charging back every possible expense to the musicians. One of my friends toured for a calendar year, playing over 300 dates, and returned with enough money for lunch.

When MP3s and easy distribution outside of the labels' control came around, the bars, granges and eventually arenas filled up. By the early 00s, my friend was making a years' pay for one week in Japan. But royalty checks are still paltry and insignificant, due to the shady accounting employed by the labels. Touring was where they all made their money, and the touring got more lucrative as the price of music shot out of the affordable range and became more common stolen than bought.

The professional musicians I know have greatly benefited from easy music distribution. It didn't have to be that way, but the music distribution monopoly had no interest in fairly compensating the musicians for their work. They still don't, but now that artists can record a studio-quality album in a basement with a single $500 PC, the artists don't need the labels at all.

That is what is hurting the music industry: no longer can they dictate their bad taste to the public, and thus they cannot hedge their bets by throwing marketing behind the latest boy-bands and mall-tourers. Screw 'em. Those SOBs have held back our nation's cultural development by decades, and deserve to whither and die.

[joshcryer]

20. Shocking ruling, wow. They get it right every now and again.

[lbrtbell]

27. Quit whining, Music Industry!

Writers' works are shared without compensation all the time (ever heard of the local library?).

Anybody with a brain knows that music or video sharing often leads to music or video purchasing. Why do you think MSNBC allowed YouTube users to post videos of their programming? That, and the word of mouth that followed, is what made Keith Olbermann a star of the left. Current is allowing the same thing with the new "Countdown". The only reason they don't have a podcast is that the cable companies won't allow it for smaller channels like Current (according to KO on Twitter).

Way back in the days of cassette tapes, I shared music and often went out to buy what I received on tape.

And before anyone says that mp3's are much better quality, you need to know one indisputable fact: CD quality is far better than that of an mp3. The latter is a lossy format, and unless you're only listening to music with crappy earbuds, you'll definitely hear the difference.

There's a reason mp3 files are so much smaller than CD audio files--they're severely compressed, so you lose a LOT of the quality.

[fascisthunter]

29. File Sharing has helped many artists by making them KNOWN

I buy music after sampling music I have downloaded. So do many friends of mine... the music industry is using this as an excuse to control what you buy from them well after buying it from them. Enough with the greed.