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?

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.

I’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.

… 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.

I’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?

KNOPPER: 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.

Steve Knopper’s new book is Appetite for Self-Destruction: The Spectacular Crash of the Record Industry in the Digital Age. It’s a delightful read for anyone with any interest in how the record industry got itself in the nasty little fix it’s in, and a great corrective device for anyone who thinks it doesn’t deserve to be there.

As I note in our chat below, he doesn’t start with Napster; he takes us back to the trouble’s origins in the go-go CD years, when companies could seemingly mint money, boy bands ruled, and larger-than-life figures like Yetnikoff, Geffen and Mottola stood astride the industry, their imaginations encompassing everything except the corrosive implications of music turned into little ones and zeroes set loose from shiny and expensive discs.

I’ve know Steve since our days running around seeing music in the early years of SXSW. Since 2002, he’s been Rolling Stone’s main industry reporter. Hitsville loves mocking Rolling Stone, but it’s true that the magazine has devoted a lot more space to industry reporting in recent years than it ever has.

I asked Steve if he had the time to talk about his book and he graciously agreed. We’ll be exchanging emails and I’ll be posting the results here this week and next.

——–

HITSVILLE: Congrats on the book, and thank you for a very fun read. Indeed, I think a lot of people will be talking about how exactly how to define the pleasure your tome affords. My offering: It was like watching a showboating asshole total his Hummer, and then crawl from the wreckage to the jeers of those watching. Here’s my first question: What’s the sense you get from the industry people you’ve been talking to, post crash? Are they humbled? Defiant? Determined? Depressed?

STEVE KNOPPER: Thanks, Bill! The answer is it sort of depends who you talk to. The Edgar Bronfmans and Doug Morrises are determined to push on with their big new digital ideas (from taxing the ISPs to selling albums in a multitude of formats, like ringtones and Guitar Hero tracks, not just the monolithic CD) and all I and everybody else gets out of them is chin-up happy talk. But that’s to be expected from CEOs, I guess. The lower-down people are obviously more depressed. They have far less resources than they used to have, not to mention distillations of their artist rosters to the sure-thing hitmakers, and their jobs are at risk. I got a lot of “thanks for writing this book but it’s so sad!” feedback from a variety of publicists and digital sources I talk to.

HITSVILLE: There’s a certain poignance to the industry right now, certainly. Record companies must seem so … 20th century to a young band. In the old days, of course, the companies could focus their attentions with big advances. Today, not so much. Do you have any sense of how day-to-day signings of new bands are going? Are they few and far between?

KNOPPER: I’m working on a story about this now for Rolling Stone. It’s hard to get hard numbers about day-to-day signings, but I’m learning just this week the recession has not been kind to major record labels. They’ve continued to cut resources and lay people off, including A&R (talent-signing) hotshots like Andy Karp of Atlantic and Kyambo “Hip-Hop” Joshua of Sony Music’s urban department and a former key guy at Jay-Z’s Roc-a-Fella Records. I guess you could argue that these high-salaried folks represent the old-school, big-spending music industry and that it’s imperative that labels get “leaner and meaner.” But I don’t see how laying off your best A&R people leads to more instinctive signings of great artists. It’s bad out there.

Paul Resnikoff, the publisher of Digital Music News, takes a look at the sad state of the RIAA, post layoffs. The group, he noted, used to be fast with the press release, or to demand a retraction. Now, not so much:

But somehow, at some point in the recent past, that started to change.  Not the accuracy or competency component, but the vigorous execution aspect.  Perhaps the continued erosion of the crown jewel album - year after year - is having a deflating effect.  Or, years of drubbing by an unsympathetic media, one that slowly recognized the futility of suing teenagers, screaming at ISPs, threatening universities, and trudging through expensive litigation challenges.

After varying reports last week*, it seems as if the group has dropped 25 or 30 employees, or at least a quarter of its work force. It’s turned away from its mass-lawsuit strategy, and is left with trying to scam some sort of a tax out of ISPs. That’s an approach that has not been laughed out of the political sphere overseas, but seems unlikely here.

The cutbacks may provoke further changes …

That will probably put pressure on top-heavy, million-dollar-plus salaries for the top guns.  Perhaps that has already changed - tax forms obtained by Digital Music News for 2005 and 2006 revealed annual compensation packages exceeding $1.5 million for both Mitch Bainwol and Cary Sherman, though later filings remain under wraps.  At those price tags, a vigorous attack and mission-friendly attitude is definitely part of the pay grade.  Hilary Rosen only criticized her organization after she left, after the big paychecks were over and a need to achieve some distance emerged.**

The RIAA is a private industry group and lord knows the industry can do what it likes with its (ever-shrinking) money. But I guess $1.5 million is the going price for being told what you want to hear.

* Note that the vision of apocalypse cited by Hypebot has not materialized.

** Rosen has a new tarnished client: The Ticketmaster/Live Nation merger.

The story apparently started here, seemingly confirming word of 30 positions being eliminated, with a more apocalyptic version supplied by Hypebot, based on a source who says:

“It is about 90-100+ people across the US and global offices - anti-piracy, coordinated IFPI/BPI etc - trust me it’s a bloodbath…

The acronyms refer to overseas industry groups.  The phrase “trust me” doesn’t instill confidence, but the source goes on to say an announcement will be made this week, and supplies this further detail:

DC offices are getting closed except for one part of one floor on Conn. Ave., just for the address.

I don’t remember the DC office as having more than one floor, but for all I know they have an underground bunker. We’ll apparently see this week.

The organization is spinning the cutbacks as “tough economic times,” but since the record industry has been facing the toughest times of all going on for seven or eight years now, it seems more like the record industry is finally giving up on this destructive, vicious, counterproductive and stupid organization, whose anti file-sharing jihad has fruitlessly done its best to ruin the lives of people guilty of little else than liking music and distracted the industry from taking steps to deal with the changes in its business model.

I feel bad for the people are losing their jobs, but one can only hope that the larger number is the correct one, with corresponding decline in the group’s ability to harass music fans.

Meanwhile, as noted earlier, the group’s most despicable creation has reared back into view, working on—what else?—the Live Nation/Ticketmaster merger.

update:  Greg Sandoval at Cnet has more details; he says the group has only 104 employees, making the 90 to 100 number pretty unlikely.

p.s. For the record, it’s worth saying that I acknowledge that, leaving aside the legal issues, file-sharing skirts some moral rough ground. Here’s the way I rationalize my opposition to a group that says file-sharing is stealing and that they are protecting their business:

1. It was obvious immediately to smart people and soon after that to dumb ones that the nature of digital information and the internet made it impossible to stop or even decrease file-sharing
2. It this context, the group didn’t even spend its time going after commercial or large-scale sharing set-ups; it sued tens of thousands of ordinary people, often though sleazy legal means, and kept at it even when it became clear that file-sharing would nonetheless grow astronomically.
3. This is a larger issue that deserves more exposition, but it’s basically true to say that the vast majority of artists don’t make money from CD sales. And, as is often noted, the industry had gotten cozy selling $15 CDs to people who really just wanted one or two songs. The suits were designed to protect a parasitical business model that put the record industry between artists and fans.  The RIAA essentially does business like the Sopranos:  They didn’t want file-sharers muscling in on the operation. It’s their job to rip off artists.

Tanya Anderson is the single mom in Oregon, living on disability, whom the RIAA has been legally assaulting, against all the evidence, as a music pirate. After years of bad behavior, the industry has finally paid her a six-figure judgment. She and her lawyers had refused earlier settlements, leaving her open now to sue the industry back for malicious prosecution.

Hitsville’s previous discussion of the case here.

Slashdot discussion here.

Business Week’s long look at the case here.

Wired blogs a report on the disparate effects working on the release of Radiohead’s In Rainbows.

Radiohead’s “pay what you want” distribution gamble paid-off despite — or perhaps because of — rampant file sharing, according to new analysis from Will Page, chief economist at the MCPS-PRS Alliance, a British rights organization, and Eric Garland, CEO of Big Champagne.

Radiohead’s notorious release strategy for In Rainbows, which allowed fans to download it for an optional price with a valid e-mail address, was considered to have been a failure by some because the album became wildly popular on file sharing networks almost immediately upon its release.

But Garland and Page’s, “In Rainbows, On Torrents” report, slated to be released on the MCPS-PRS website on Friday, indicates that Radiohead’s strategy was a success nonetheless, contributing to the album topping the charts in both the UK and United States and a wildly successful worldwide tour. When it comes to judging whether an album is a success these days, the old metrics just don’t cut it.

Now, the last sentence seems pretty obvious to me and I’m not sure if I agree that the album was considered a failure. But the rest of the article crunches some interesting numbers.  And here’s the part most sobering if you’re in the music industry:

“The venue hypothesis suggests that even when the price approaches zero, all other things being equal, people are more likely to act habitually (say, using The Pirate Bay) than to break their habit (say, visiting www.InRainbows.com),” reads one section of the report. In other words, people tend to develop habits around the acquisition of music; once they find something that works, they tend to keep using it. As the paper mentions, “The Pirate Bay is a powerful brand with a sterling reputation in the minds of millions of young music fans.”

It’s also easier to use in a lot of ways, has a better and more complete selection, and, in a key way, offers a better product!

Not everything is on the torrent networks, of course, but you have to be impressed that you don’t have to deal with DRM and often have the choice of bitrate speeds, which iTunes doesn’t have. Also, with video, you don’t get those annoying FBI warnings and legal boilerplate about how the commentaries don’t reflect the opinions of 20th-Century Fox.

In other words, the free illegal product is better than the legitimate one.

The entire British broadband infrastructure has buckled under to the international music industry and will will join with them to police file-sharing, the British press is reporting. They apparently did this to stave off the threat of legislation, which means that by their calculations the music industry had the British Parliament in its pocket.

This is the most outlandish development yet in the music industry’s insane, debilitating, destructive, petulant and useless campaign against its customers around the world:

As part of the memorandum of understanding—signed by BT, Virgin, Carphone Warehouse, Orange, Tiscali and BSkyB—a pilot three-step process will be used to identify repeat offenders.

The first step is a letter, “intended to be educational” to an internet user about the “account abuse”, the second a suspension of the account until the customers agrees in writing not to offend again, and the final step is cancelling an account.

While it’s unlikely the US would ever adopt such measures, the step shows that the industry will adopt whatever it can get away with overseas. The moves are pointless because the sheer volume of the file-sharing is impossible to stop; it’s dangerous because there’s no way to distinguish between legitimate and non-legitimate content, and policing will inevitably ensnare the innocent or disrupt their service; it promises an escalating, unwinnable arms race of technology to get around any measures the industry takes; it will leave some thousands of hapless casualties, just as the US drug war has; and for Britons it establishes a precedent where what should be a neutral information channel can be monitored for illegal activity

Slashdot discussion here.

The Guardian also has a rough transcript of a conference call on the subject with the president of British Phonographic Industry, the equivalent of the RIAA. Here’s his triumphant statement:

All major ISPs in the UK now recognise that they have responsibility to deal with illegal file sharing on their networks.

The trouble with this—and why presumably it won’t happen over here—is that it puts the ISPs in the position of policing the content of the internet traffic.

From Wired News’s Threat Level blog:

A federal judge is awarding Tanya Andersen, who defeated the Recording Industry Association of America’s file sharing lawsuit, $108,000 in legal fees to compensate for defending herself against the RIAA.

The award, made public Wedesday by U.S. District Judge James A. Redden of Oregon, marks the second time that a target of the RIAA who beat a lawsuit was awarded attorney’s fees. In August, a federal judge ordered the RIAA to pay $68,685 in litigation costs to two Oklahoma women whose case was dismissed.

Whether RIAA defendants who successfully defend such suits are automatically entitled to legal fees is on appeal to the U.S. Supreme Court. The dispute is whether judges must award fees to a prevailing party under the Copyright Act.

In the UK, if you’re a kid between the ages of 14 and 24, the number is about 800 tracks, and it accounts for half of your music, a new British study has found:

Teenagers and students have an average of more than 800 illegally copied songs each on their digital music players, the largest academic survey of young people’s music ownership has found.

The average digital music player carries 1,770 songs, meaning that 48 per cent of the collection is copied illegally. The proportion of illegally downloaded tracks rises to 61 per cent among 14 to 17-year-olds. In addition, 14 per cent of CDs (one in seven) in a young person’s collection are copied.

(Link via The Daily Swarm.) One would assume that British kids are less technologically attuned than U.S. ones and that the figures would be higher over here. (On the other hand, music is traditionally more expensive in Britain; will investigate broadband penetration there vs. here.)

Read further and you can see this is part of an industry push to drum up support for either subscription-based music services or a de facto tax on ISPs, to compensate the labels for the money lost to file-sharing:

British Music Rights [a UK artists group] argues that the solution partly lies in developing new legal services that make breaking copyright unappealing.

[Group capo Fergal] Sharkey [yes, that Fergal Sharkey] said: “The positive message is that 80 per cent of downloaders said they would pay for a legal subscription-based service, and they told us they would be willing to pay more than a few pounds a month.”

British Music Rights declined to release the exact amount but it is believed to be about £10 a month.

The organisation is trying to help the record companies to persuade internet service providers to sign up to a new type of music service, in which vast catalogues of songs are available for an add-on fee to a broadband package. Agreements with providers such as Virgin Media are expected in the next few weeks.

In France last week, Orange, France Telecom’s mobile arm, reached agreement with all four main record companies to provide downloads of more than a million songs to mobile phones and home computers for ¤12 (£9.40) a month.

Music sales have been falling steadily and the big companies are desperate to strike subscription-based agreements rather than rely on one-off CD and download sales.

Yesterday, the RIAA withdrew one of its many cases against legal file sharers, instead of facing the potential of getting its little legal nose spanked on the “making available” issue in front of a pesky judge. (This is the state of affairs where it can get file-sharing judgments against people without actually showing that they, you know shared files—that they just made files available.)

Details on that case, Warner vs. Cassin, here.

Today, the organization refiled the same suit against the same family, without telling the new judge it had withdrawn the old one.

Details at Ray Beckerman’s intrepid Recording Industry vs. the People blog.

Also in Billboard, the mag’s legal expert, Susan Butler, spends some time in the RIAA’s war room. Her story ($) is a dispassionate account of how exactly the organization wastes its time in a pointless, debilitating war on its own customers pursues its legal rights against wholesale copyright violations:

Deep inside the national headquarters of the RIAA is a purple room. Tinted windows shade the faces of young men and women working behind computer screens. They are part of the team investigating the illegal sharing of music files over peer-to-peer (P2P) networks, and they protect their identities carefully.

Such precautions are a reflection of the charged environment in which the RIAA is operating. The trade group views anti-piracy enforcement as vital to the recording industry’s future.

There are some …. interesting facts:

Despite the RIAA’s efforts, data suggests that demand for pirated content remains strong. A recent NPD Group report estimates that 19% of U.S. Internet subscribers 13 and older download free music from P2P services, barely less than the 20% reported when the RIAA began its user litigation campaign in 2003.

(I find the idea that file-sharing has in any way decreased in the last few years entirely far-fetched, but whatever.)

Here’s how it all works:

When a consumer rips a song from a CD and gives the digital file a name, the computer hardware, ripping software and other digital data together create a digital file identified by a distinct hash code. If the user rips the same song with an older computer—even with the same software—the file will have a different hash code. The slightest change in the music source, computer hardware, ripping software, P2P protocol, file name or length of recording will change the hash code identifying the resulting MP3 file.

For example, while searching for a Madonna song at the RIAA offices, dozens of users were sharing the same Madonna title over LimeWire—but six users were sharing the digital files with identical hash codes. Since it is highly improbable that more than one user would have the exact combination of equipment and timing to create identical hash codes, the investigator says, the six users are likely sharing copies of the same file that one person originally uploaded to the Internet and that was later downloaded and shared by other users.

And goes on from there:

Once the popular hash is identified, the MediaSentry program makes contact with the user through a “TCP handshake”—essentially a conversation between the Web server and the Web client, like LimeWire, via the Internet transmission control protocol.

“Are you online and do you have this hash code?” the program asks. If the user’s program says “yes,” then the user is pegged. Just one digital file is enough for the RIAA to send a take-down notice.

From a Canadian news service, a story that says the Canadian government is secretly participating in “negotiations”—apparently with the U.S. and the E.U.—to create a copyright trade union:

The deal would create a international regulator that could turn border guards and other public security personnel into copyright police. The security officials would be charged with checking laptops, iPods and even cellular phones for content that “infringes” on copyright laws, such as ripped CDs and movies.

The guards would also be responsible for determining what is infringing content and what is not.

Read down and the story says that the agreement will probably be “tabled” at an upcoming G8 summit, but the implications are disturbing. It’s not an exclusively Canadian story; the report, which it says was based on “leaked documents,” seems to indicate that the agreement, if completed, will subject any traveler between the U.S., Canada, and the E.U., to this sort of scrutiny.

Since there’s no easy way to determine whether a particular song or movie has or hasn’t been ripped legally, the opportunities for abuse aren’t just legion; they would be inherent in any enforcement at all.

That’s what a judge in Los Angeles has ruled, according to Cnet. The company is Torrent Spy. The story said the company earned the judge’s enmity by allegedly destroying evidence:

According to the court, TorrentSpy operators had intentionally modified or deleted directory headings naming copyrighted titles and forum posts that explained how to find specific copyrighted works; concealed IP addresses of users; and withheld the names and addresses of forum moderators. The company had previously been fined $30,000 for violations of discovery orders and were warned of severe sanctions if they continued to ignore the orders.

The fine was based on a $30,000 fine for each of more than 3500 movies or TV shows torrented.

The company’s response:

TorrentSpy’s attorney, Ira Rothken, called that ruling “draconian in nature and unfair.” He said he did not believe any data was intentionally destroyed, and that some actions were taken to protect the privacy of TorrentSpy users.

Rothken also said at the time that TorrentSpy would appeal any decision on damages.

Such rulings are pointless; there are a dozen other torrent search sites coordinating the transfer of untold gigabytes of music and movies every hour, most of them based outside the U.S. The case is another petulant move by Big Content, in this case the MPAA, to take as many small fry down down with it as possible.

Less than a month ago, a federal district court in New York ruled on a contentious issue in the RIAA’s grim legal campaign against online file-sharing. A lot of folks have a file-sharing program like Kazaa running, and copyrighted songs sitting in their shared folder, ready to be uploaded. The RIAA’s position: That offer to swap is a crime in and of itself.

In the Elektra v. Barker case in New York, earlier this month, the court agreed.

Now comes a federal district court case in Arizona in which … a judge ruled precisely the opposite way.

Cnet’s story is here, Ars Technica’s here.  A gleeful press release from the Electronic Frontier Foundation, which is working on the case, is here. From Ars:

“The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public,” wrote the judge in his order. “Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”

In both of these cases, and others on the same topic, the rulings aren’t final; they are merely housekeeping issues in response to motions for summary judgment and the like before the real trials begin.

Business Week throws some reporting power at the story behind one of the RIAA’s suits against file-sharers. It’s the seamy case of Tanya Anderson, who is a 45-year-old single mom living on disability in Oregon. The Anderson case has been a poster child in the protests against the RIAA’s Soprano’s-style tactics.

The RIAA uses an investigative company, MediaSentry, to round up IP addresses of file-sharers off the internets. It then extracts the names of the corresponding users from the companies that provide internet service, and then sends notes to the users, saying they’re about to be sued. Then it funds a debt-collection-style phone bank, which starts to dun the users with calls, trying to get them to settle the case before trial, generally for $4000 or $5000.

The RIAA seems to have made a mistake in Anderson’s case, and their tactics were reprehensible from top to bottom. Here’s just one example:

Over the next few months, [lawyer Lory R.] Lybeck and the record industry tussled over Andersen’s computer. The court ordered Andersen to hand over the computer, and the RIAA took it to an expert so it could be searched for signs of music piracy. But then the industry’s lawyers refused to release the expert’s report. Ultimately, Donald C. Ashmanskas, the U.S. District Court judge overseeing the case in Portland, ordered the RIAA to turn over the information, which it did in January, 2007. The result? No evidence of piracy.

There’s a happy ending, too:

Lybeck was convinced his defense was airtight. On May 14, he asked the Portland court for summary judgment. Ashmanskas gave the RIAA until June 1 to provide more evidence linking Andersen to the alleged infringement. In the week leading up to the deadline, the RIAA told Andersen it would drop its case if she agreed not to pursue counterclaims. She refused. Finally on the deadline, industry lawyers dropped the case without conditions and agreed not to sue Andersen again.

Worth reading. All that said, I thought one part of the story didn’t fit. For one, Anderson admits she had downloaded KaZaa onto her computer, though according to the story she didn’t use it:

As Andersen and the attorney prepared their defense in 2006, his conviction grew. Yes, Andersen had installed on her computer a software program, KaZaA, for sharing music over the Net—one reason the RIAA suspected her. But Andersen deleted the program after a few months and didn’t appear ever to have used it. Plus, some of the music Andersen had supposedly shared online just didn’t fit her taste. The songs included rap tunes with titles like “I Stab People” and “Dope Nose.”

An innocent single mom in Oregon, living on disability… who at some point knew enough about computers and file-sharing to download Kazaa to her computer. And if the RIAA got on her trail, it’s possible that she was actually running the program. It doesn’t quit fit. Her daughter, eight at the time she was sued, doesn’t seem to be a factor, but the story doesn’t ask the question of whether Anderson had ever let friends use her computer.

That aside, no one deserves to go through what Anderson did. Here’s what she told p2pnet in an earlier story:

Through this lawsuit, I’ve been humiliated, embarrassed, shamed, and my privacy has been greatly violated by the other side.

They not only deposed my 10-year-old daughter, but, deposed my grown step-kids (who I’ve long been divorced from the father), friends, etc.

At one point, they even tracked down and called my new landlord. I had been living here for only one month. They’ve asked and investigated quite a bit of extremely personal information, which was very humiliating.

As you know, I never did what the RIAA accused me of. There was no need for this lawsuit to ever even take place. I did everything humanly possible from the day I received the first letter to tell them there was a mistake. I even offered for my computer to be looked at from the beginning. They didn’t want to listen. I’ll never under why they continued to put me through the drug out nightmare that they have.

———–

Business Week: “Does she look like a music pirate?” [Link via Slashdot.]

The debate about the war on file-sharing isn’t entirely clear-cut. You can see how certain corporations, used to having complete control over the media they produce, are chagrined at a world that, suddenly, treats that media like water, and lets it flow anywhere, any time.

You can see why artists, with an officially Constitutional, if limited, right to profit from their work suddenly lose de facto control of that as well. And you can even concede that, in the end, it probably is illegal to leave hundreds of copyrighted music or video files on your computer for anyone else to download.

All that said, the war on file-sharing is still wrong. A new study, reported on by Ars Technica today, gives an illustration why.

Briefly, the findings are that, in a survey of more than 1.5 million computers, more than a third were found to have LimeWire on them. LimeWire is the most popular file-sharing application; there are many others. Second, it says that BitTorrent use has grown 25 percent in the last six months.

More on the significance of those figures in a second.

The methodology for the survey seems to come from a company that removes adware and spyware from computers. How that might affect the sample is hard to assess. Folks smart enough to run file-sharing programs would presumably know how to run anti-virus programs; on the other hand, since file-sharing applications are often a source of spyware and adware, it’s possible the sample self-selects to people who file-share a lot. Indeed, while Ars doesn’t say it, it seems from some accompanying graphs that file-sharing applications of one form or another appeared on a total of nearly 80 percent of the PC’s examined. That number seems quite high.

However, in some notes accompanying the survey, one of the people who ran it acknowledges the difficulties of getting good data, but points out that given the size of the sample and the consistency of the analysis over time, it has particular insight when it comes to tracking changes in usage.

That’s the sobering part:

1. Even if the sample is skewed by 50 percent, an installation base of 36 percent for just one file-sharing protocol, LimeWire, demonstrates how fruitless the RIAA’s legal war is; even thousands of mass suits against a user base that may number in the tens of millions is senseless. It seems puny, and petulant.
2. But the BitTorrent numbers are simply devastating. In a traditional file-sharing program like LimeWire, files are shared person-to-person. (That’s where the name “peer-to-peer,” comes from, often abbreviated P2P.) “Torrenting” is often called file-sharing on steroids, but it’s conceptually different. With a program like BitTorrent, a large number of “seeds” torrents the files in pieces around the net, so you can download it simultaneously from many other places, making for vastly shortened download times. On BitTorrent networks, people don’t swap single songs; they swap albums or, increasingly large “discography” files, containing all the released albums of a particular artist. And then, of course, it’s also a powerful tool for exchanging video files, which are much larger than mere songs..
3. In other words, the move toward torrenting may represent an increase in file-sharing by an order of magnitude. It’s impossible to really put figures to such trends, but it’s possible that just the 25 percent increase in BitTorrent use in a particular period could equal several years’ worth of filesharing under LimeWire-style programs of the past. In this context, the war on file-sharing in the music world is already over; within just a few years it will be common easily to swap entire record libraries or more, and people will soon have more music on their computers than they can realistically hope to ever listen to.
4. And the growth suggests one other thing as well: The same will soon be able to be said about the TV and film world.