From August 6, 2009

The Curious Behavior of Dinosaurs, Part 6

in which the doomed beasts thrash about in the tar they're stuck in

From www.techdirt.com

I remain amazed that the Recording Industry Association of America (RIAA) has continued to pursue a business strategy like this, especiamerically in light of how often their individual members have been found committing outright fraud on the artists they claim to represent...I can only hope that sometime soon, we'll go back to where recording companies are run by musicians, instead of creepy people in suits.

After the Jammie Thomas ruling, the RIAA kept its typical gloating to a minimum, recognizing the PR disaster that the nearly $2 million judgment presented for its already widely disliked members. A fewmistakes slipped through, but for the most part, the RIAA kept pretty quiet hoping that Thomas would settle rather than appeal (that didn't work). However, with the Joel Tenenbaum ruling, it appears the RIAA is going in a slightly different direction, posting a snarky blog post about Joel supposedly under the guise of "facts." Now, I've been clear that I think Tenenbaum never should have gone to trial and should have settled a while back. As more facts became clear in his case, it made little sense for him to fight against the RIAA. He broke the law and admitted it. You're not going to get very far fighting in court on that front. I think he's a bad test case (and had terrible legal representation).

So I can see where some of the opening comments from the RIAA's Cara Duckworth come from (basically trying to tear down Joel). But, for the life of me, I can't figure out what good the post does for the RIAA. It's a rather typical tone-deaf pronouncement from a group that's been about as tone deaf as it could possibly be to consumer desire for over a decade. To the people who already support Joel, it comes across as yet another attack. To people who already support the RIAA, it adds nothing new. To people in the middle... it just looks mean to attack this guy. Yes, Joel broke the law. But he was fined $675,000 for 30 songs (and, yes, the RIAA tries to point out that he downloaded/shared much more, but if that's their point, they should have sued him for that as well). Plenty of people see that punishment as totally out of line with any sense of reality. There's a tremendous amount of evidence that file sharing has not been a problem for the music industry -- it was a failure of the labels, often at the urging of the RIAA itself, to embrace new technologies and new business models.

And rather than recognize that, it now wants to smack around a guy they may have just sentenced to a life in poverty? That'll win over supporters...

I can't believe it needs to be said again, but you DON'T win customers by suing the biggest fans of your product. You DON'T win customers by doing everything you can to hold back innovation unless its under your terms. You DON'T win customers by exacting a massive pound of flesh and overvaluing your contribution over everyone else's.

As for the specifics of the RIAA's "facts" they get a bunch wrong. For example:

FACT: As much as he wants to make this into one, this is not a crusade against the RIAA or the laws that protect creators. This is not about us. It's about Joel Tenenbaum and his egregious illegal behavior which robs artists and music creators of the right to be paid for their work, and robs record companies of the ability to invest in new artists and bring new music to the public.

That's not a "fact." That's very much an opinion, and the second part of it is flat-out wrong. It's not a fact, it's a lie. Tenenbaum's actions robbed no one. No one has a "right to be paid for their work." You have a right to try to convince people to buy, and the RIAA and its labels FAILED in convincing Tenenbaum to do that. But that's the market at work. Today for lunch I may pick the deli rather than the pizza shop next door. Based on the RIAA's logic here, I have just "robbed" the pizza place of its "right to be paid" for its work. There is no right to be paid. Only a right to try to convince people to buy. As for "robbing the ability to invest," again, please explain how people choosing not to buy your product is the fault of the people not buying? If you simply put in place business models that work (which we point to all the time, showing artists who embrace file sharing and make more money because of it), there would be plenty of money to "invest in new artists."

And, of course, the woe-is-us routine is bogus as well. As we've seen in two recent studies (the latter from the music industry itself), the music ecosystem is thriving. More money is going into music and music-related goods than ever before. It's just that less and less of it is filtering through the RIAA's labels who (oops!) have a nasty history of not actually paying their artists money they owe them. The idea that not giving money to the RIAA somehow means less music will be brought to the public is laughable. It's not a fact, it's pure propaganda. Thanks to these same new technologies that the RIAA has tried to kill off, it's easier than ever for bands to create, promote and distribute music. And because of that, there's more new music out there than ever before.

Hey, let's agree on the fact that Joel broke the law and it was silly for him to go through with this lawsuit. Done and done. But don't spew a line of pure bull that this was ever about investing in artists.

FACT: Mr. Tenenbaum has put forth the defense that "his generation" has grown up learning that file-sharing isn't wrong. This is a bogus argument. I'm a member of Tenenbaum's generation. I was taught I shouldn't take what doesn't belong to me without permission.

Funny, then, can you explain all the lawsuits that artists have filed against major record labels asking where the money owed to them has gone? Why is it the RIAA's biggest name members seem to have no problem "taking what doesn't belong to them without permission"? And can you explain why the RIAA has been fighting for a new tax on radio stations? Isn't that just "taking what doesn't belong to you" as well? The RIAA has no problem taking what doesn't belong to them (though, usually it works hard behind the scenes to get politicians to pass laws to give it the appearance of legality).

FACT: The best anti-piracy strategy is a thriving legal marketplace that gives music fans a wide variety of innovative options where they can get their favorite music in affordable, hassle-free ways.

Which is why your members, under your legal direction and strategic input have sued a significant number of those services and tried to make the MP3 player itself illegal? Uh-huh.

Because there are some people like Mr. Tenenbaum who believe music should be free, we've had to enforce our rights to protect all those hard-working individuals who create the music.

There's a bit of a problematic logic train here... Because someone doesn't want to buy from us, we have to sue, to get money for the people we work so hard to not give money to. Hmm. Can Cara Duckworth and the RIAA share with us some details on how the "settlement fees" from all the folks threatened by the RIAA has been distributed to artists? The RIAA has no requirement to enforce its rights. As we've seen time and time again, artists who purposely chose not to enforce those rights, but to instead provide something of real value to consumers have found that they can make more money than they ever got from an RIAA member. There's no such thing as that you "had to enforce" your rights. Instead, you could have innovated. You chose not to.

FACT: We do not want to be in court. We'd rather be investing in new artists and bringing great music to the public's collective ears.

If we're dealing in "facts" here, we should get one straight. If a plaintiff doesn't want to be in court, then he or she doesn't sue. It's that simple. Making this out like the RIAA was somehow forced to go to court is ridiculous. Edgar Bronfman Jr. announced nearly a decade ago that he was sending an army of lawyers to sue file sharers. You made the conscious decision to declare war on your best customers. You weren't forced into it at all.

But artists, musicians, music companies, and all the working-class folks who rely on the legitimate sale of music to make a living deserve to be paid for their work.

There we are with the "deserve to be paid." Hell, I "deserve to be paid" for my work too. But, the world doesn't work that way. Deserving to be paid for your work and a nickel gets you five damn cents. You earn money by offering something in the marketplace that people want to buy. You didn't do that. You failed at business 101 and you started suing people because of it.

FACT: We remain willing to settle this case, but Tenenbaum is so far insisting on filing more motions and appeals in order to continue to pursue his misguided mission to get music for free.

You could drop the case. You've already declared (somewhat misleadingly) that you were giving up this strategy of suing music fans. Why continue to tarnish the RIAA's reputation by bankrupting a kid for listening to music?

Nobody can argue that people don't deserve to be paid for their hard work. But through all his illegal actions, Tenenbaum has argued exactly that.

Indeed. No one is likely to argue that people don't deserve to be paid for their hard work, but out here in the real world, deserving to be paid is meaningless. Cara, since I spent so much time correcting your errors, half-truths and misdirections, I feel that I deserve to be paid for this hard work I have done for you. Based on your logic, I should see a check in the mail from you shortly, yes? Clearly, if you don't pay up, we can only assume that you are arguing that I don't deserve to be paid for my hard work. So which is it?

No matter how clearly Tenenbaum broke the law, it doesn't change the only real fact: the RIAA has failed to embrace new business models when they appear, has attacked and held back new technologies and innovations at nearly every opportunity untildragged kicking-and-screaming into the new era (which it still refuses to fully embrace), and has created a PR nightmare for itself that isn't helped by lying to the public in the name of a bunch of bogus "FACTS."