RIAA, friendship, and prostitution

My friend David is a composer and philospher.  One of his favorite puzzles to pose goes as follows:

“Philip, what if I were to give you $100.  Would there be anything illegal about that?”

“I don’t think so.”

“Well, how about if I asked you to sleep with me?  Would that be illegal?”

We were in New York City so I answered “No.”

“Well then, why should it be illegal for me to ask you to sleep with me for $100?”

After assigning an in-class exercise of normalizing a data model for an MP3 file sharing system, I asked the students present a few questions:

“Is it legal to hook up a tape recorder or CD burner and make copies of CDs that you own to play in your car?”

Nearly everyone thought this was legal.

“How about if you go over to your friend’s house?  Is it legal to hook up your recorder to his stereo and make copies of his CDs?”

Nearly everyone thought this was illegal.

Let’s step back a moment and look at the law.  There are a lot of special laws that were passed at the request of the record companies.  Some time in the 1980s they got Congress to make it illegal to rent music CDs (USC Title 17, Chapter 1, Section 109).  This is why you can find a corner video rental store but not an audio rental store.  (This statute applies only to commercial rental, which is why you can find CDs at the public library.)

Home taping was always in legal limbo.  Record companies claimed it was costing them $billions.  Most consumers thought it was fair use.  Record companies hadn’t yet developed their brilliant business strategy of suing 12-year-olds and therefore there was no judge to establish a precedent.

Then came the early late 1980s and the new threat of digital audio recorders.  The record companies wanted the Federales to collect a tax on all the blank digital audio tape sold and give them the money.  Never mind that 99% of the DAT tape sold was used by artists recording their own music or computer owners backing up data.  Congress and George H.W. “No New Taxes” Bush gave them the new tax.  However, in order to avoid the appearance that the U.S. Congress was a wholly owned subsidiary of Sony Records, they slipped in a note clarifying the status of home taping:

“No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.” — US Code, Title 17, Chapter 10, Subchapter D, Sec. 1008 (also see its legislative history).

You could tape away to your heart’s content as long as you weren’t doing it for money.  You could make a tape for your friend, even an analog tape that wasn’t subject to the new tax.

Napster tried to defend itself under Section 1008.  Its users were sitting at home making audio recordings for personal use.  They got slammed by the courts because the devices being used, desktop PCs, were held to be not covered by this statute, i.e., a PC is not a “digital audio recording device”.

In the bad old days of Napster you kept your MP3 collection on your desktop.  Today, however, an MP3 jukebox with enormous capacity can be purchased for $200.  It won’t be long now before average people carry around their entire music collections on their cell phones.

Consider this scenario.  You are sitting at Starbucks and see a friend.  He is not inside your Starbucks but across the street in the other Starbucks.  You walk across the street.  Both of you happen to have your MP3 jukeboxes your pockets.  He says “Have you heard the latest Britney Spears song?  It reminds me so much of the late Beethoven Quartets with some of Stravinsky’s innovative tonality.”  You haven’t?  Just click your MP3 jukeboxes together and sync them up.  Any tracks that he had and you didn’t you now have.  You’re using a digital audio recorder; the device won’t do anything except record music.  You’re not paying each other so it is noncommercial.  Under Section 1008 what you’re doing is perfectly legal in the United States.

Imagine having a party at your house in which 30 people show up.  By the end of the evening every person has the union of 30 personal music collections.

What is the point of Internet file sharing when people can, perfectly legally, copy as much music from each other as they could reasonably want?  Only a person with zero friends would want to bother with file sharing.  Which is why we can now say that the RIAA is the world’s leading promoter of friendship!

[Now that most of Korea and a handful of Americans are hooked up on broadband it is time to ask why people don’t simply email their favorite songs to each other.  The last thing that I would want is to be dumped into Napster or its spiritual descendants.  I don’t know anything about pop music.  What I would want is for my friends who know music and my taste to email me a song every day.  If I have 10 music expert friends sending out their favorite song of the day, after a year I’ve accumulated about 200 hours of music.  Prediction:  RIAA will get a law passed making it illegal to email sound recordings.  To enforce the law the RIAA will have the right to read anyone’s email at any time.  Encryption of email will need to be outlawed so as to thwart terrorists and music thieves.]

32 thoughts on “RIAA, friendship, and prostitution

  1. Your prostitution example does not work very well, and the reason why it fails might well say something about the copying cases as well. Here is another case that has the same structure as the prostitution case but, I think, quite a different result. If you get pulled over by a cop while speeding there is nothing illegal about asking him to let you off without a ticket. There is also nothing illegal about donating $100 to the Police Welfare fund. Does that mean that there is nothing illegal about offering to donate the money if the cop lets you off without a ticket? No, it’s bribery, and bribery is illegal for a good reason. When you offer to bribe an official you are trying to get him to consider a factor that he is not supposed to consider when making decisions in his official capacity – namely personal gain. When you put these two inncocent acts together, the result is not an innocent act.

    Your copying case might run into similar problems. Yes (if you can persuade a court that Congress intended to cover these new devices) you can copy music from friend A, for your personal use, and friend B can copy your music, for her personal use, but it does not follow that you can copy from friend A with the *intention* of later sharing with friend B. If you copy with the intention of later sharing, then we are no longer talking strictly about copying for personal use. Again when you put these two innocent acts together, the result may not be an innocent act.

  2. Glen : You’re not comparing even apples and oranges; how can you define someone giving 100$ to the Welfare Fund as “personal gain”?

  3. Alexander : As long as the officer is a potential beneficiary of the Welfare Fund he stands to benefit from donations to it. Anyway this is irrelevant to the argument. The point is just that the two acts taken seperately are both legally and morally permissible (i.e. both are legal and that’s the way it ought to be). The two acts taken together are both legally and morally impermissible (the joint act is illegal, and that’s the way it ought to be).

    If it makes it easier to follow just substitute a personal gift for the donation.

  4. In response to Alexander, is it bribery (or for that matter, prostitution) if the gift is not contingent on the preferred result?

    The whole legal file-sharing thing won’t work, for the reasons Phil has said in the post.

    If the record companies see that people are using the music that they(people) paid for in a way that they(record companies) don’t like, they will lobby Capitol Hill until they get a law or ruling they like.

    Finally, emailing music? I have long since considered attachments an unneccessary evil, but then I’m postmaster for a few dozen domains.

    What email needs (apart from people like me leaving it well alone), is some method of sending attachments out-of-band on a pull basis.

    Oh wait, don’t they call those links?

  5. Probably we all missed the point about prostitution here.

    Well, I’ve never visited one but it’s not preposterous to think that what one assumes one can do with a prostitute (upon procuring the service) compared to what the prostitute considered ‘legally’ acceptable on her part of services rendered.

    In other words, what terms of the sexual act that are allowable to be carried out in the transaction would be a ‘section 1008 wrangle’ when conflict of interests sets in.

  6. But Philip’s obvious point: it’s not feasible to enforce a law that makes too weak an argument if both parties act consensually and even if either party is partial and dissatisfied with either one, you still can’t make out a case against the defendant unless the draconian law decides to impose its view on you.

  7. If you move the financial payment far away from the favor received in time and space, you get the present political campaign donation system. A little too close, and somebody gets fitted for an orange jumpsuit.

  8. Prostitution is illegal because America regulates every situation defined as transfer of cash for services. (Such as employment.) So you can give a friend cash, and some other time you can have sex (sounds like many relationships), but when there is a fairly formal relationship between the two, especially when the prostitute has multiple clients, the US will seek to regulate it. Since the US (except for Nevada) is currently unable to regulate it well because of cultural problems, it’s banned.

    If your composer/philosopher friend phrased it in logical terms, it would be easier to see. I’d like to check out Rice’s Blackboard Debate Society, which seems to do just that.

  9. Wow, OK Philip. Now you are seriously talking my language. As far as I can see it, there is a big battle on the horizon over protecting intellectual property versus privacy. I’ve attempted to teach a class at this at Tufts – maybe MIT would be a better audience – about exactly this. What is more valuable to you? What is more valuable to society? Your security? Or your privacy? Its reaching its boiling point where democrats will be yelling at republicans saying do guns, SUV’s and a huge savings account make you more safe? And republicans saying to democrats why do you need open source software and freely available encryption software if you have nothing to hide and support capitalism? Only criminals need free privacy. Only communists need free software. I have to imagine that even pay for privacy services like anonymizer.com will come under scrutiny (or maybe they already have). Some marketing genius has to come up with a better slogan than “open source doesn’t mean free”.

    Also, musicians should focus more on product promotion than record sales. No more fuzzy spots in hip hop videos. TV shows are easier to buy on DVD or watch on TiVo without commercials, when I want, not when its broadcast. Should musicians be like athletes? Should TV shows be more like LP’s and singles? I’d rather watch my TV show on the train than read and listen to my walkman. I’d rather listen to music with my friends. I’d rather read a book drinking scotch in an easy chair next to a fire with a golden retriever napping at my feet. Thanks Marshall McLuhan (not Mathers) – the medium is the message.

  10. I just re-read my comment and forgot to clarify the relavence of privacy and Philip’s post. The last sentence RE outlawing encryption for the sake of the RIAA reading everyone’s email . IPv6 will make it SUPER easy to create anonymity, as well as preventing someone who may know your identity from knowing what you are doing online or what you are trading. Although I don’t fully understand the complete implications of such matters, I do believe this is a really good thing for the world. Unfortunately at this stage in the game it also proves very incompatible with our current copyright dependent business models. Thanks to people like Larry Lessig for trying but it looks like worlds are about to collide. In the words of the great Homer Simpson – Doh!

  11. I think there is a general consensus that it is legal to make copies of copyrighted material for personal use, such as backups, or to shift it to a different medium, such as ripping a CD that you purchased so you can play the music on an MP3 player.

    The real issue seems to be whether it is legal to share such copies.

    When David Boies was defending Napster, he appeared on the Charlie Rose show and essentially made the argument that it IS legal to share copies with friends. I think he argued that such activity is considered fair use. I don’t know if there is general agreement on that, but I don’t think the public sees such sharing as a real problem, and certainly the RIAA didn’t sue customers back in the 80’s for making cassette copies of CD’s and giving them to friends.

    Assuming Boies was right about the individual sharing, his argument in defense of Napster went one step further, saying that essentially you have the right to decide who your friends are, and if you decide that your friends include everyone logged into Napster, then it is fair use. It’s an interesting argument, because, like Phil’s examples, it takes something that seems to be legal and goes just ones step further. On the other hand, such open sharing basically nullifies the effect of having a copyright, so in some way it must confict with the spirit of copyright law, even if it could some way be found to not violate the letter of the law.

    In the end, I think Boies lost that case, and I’m hoping his losing streak continues, of course, considering that he is now representing SCO. But I never found out of the Napster case really clarified any of these questions. It seems silly that you could legally share things in person, but not online. Does it make sense for something to be legal over Bluetooth or IR but illegal over Wi-Fi or Ethernet? Does it come down to whether you can prove that you know everyone that you share with?

    I just hope that the recording industry doesn’t bribe Congress into applying the blank media tax to the internet at large, because that would really be the last straw.

  12. What if I, together with a million of my closest friends, each decide to pool our resources? We each contribute a penny, then one of us buys some CD’s, makes digital copies and sends the copies to each owner. Where’s the illegality?[apologies to Robert Cringely, who wrote a column on this]

  13. I think there is a much more obvious way to define what’s right and what’s wrong about digital media. A way anyone could understand that doesn’t involve complex (Starbucks-Starbuks vs Starbucks-car vs whatever) scenarios.

    If you recall Borland’s Turbo C 2.x “no-nonsense” license, it basically described the product allowed use “as a book.” That is, you’d use it the very same way you’d use a book: you cannot copy a book, but you can give it to your friend or sell it. If the friend has your book, you cannot use it at that time, although scenarios w/ both of you reading the book together (i.e. doing pair programming) is totally conceivable.

    My opinion is, that this model is the only sane way to solve digital media problem. You’d treat the new BS (pun intended) song as a book: you could listen to it yourself or together with your friend(s), but the moment you “give” it to your friend, you lose the ownership of it.

    Of course, there’s still a big question of necessary supporting infrastructure ((in)validation, backups, etc). There is no doubt that we will end up with some kind of such infrastructure. However, it would be better for all of us if the rules were based on an obvious and time-proven model.

  14. To the lawyers out there: what are some other good examples of how the courts have interpreted Section 1008?

  15. The fallacy in Boies’ argument is the subtle flaw in his assertion of “I can choose who my friends are.” Yes, you can choose your friends, but I think anyone’s reasonable definition of friend is that you at least know one bit of identifiable information about the person. I don’t think it’s reasonable to say I’m sharing music with a friend when the first (and only) identifiable information I have about the “friend” is the person’s userid I see on my P2P “uploads list,” which I learn *after* the upload (a.k.a sharing) has begun.

    The prevailing argument that I’m hearing in this debate is “We should be able to do anything we want with any and all media in the digital domain.” This is punctuated recently with “It’s immoral for the RIAA to sue <insert your favorite semi-marginal class of person here>”. The logical end of this argument becomes “The producer of media that can be or has been digitized should relinquish all control over the distribution of that media.”

    Is this what most people really think? I doubt it. I wish I was hearing a more reasoned approach to this debate (making an analogy with prostitution just misses the boat). Maybe it’s a case of “Those who know don’t have the words to tell and the ones with the words don’t know too well” (Thanks to Bruce Cockburn).

  16. [IANAL, as I’m about to demonstrate] Phil, it seems to me that the introduction of digital audio devices will not make it legal to copy music. The key phrase is “recording”. Most people today don’t record anything — they copy files, not record audio signals. These are vastly different.

  17. Ziv: The digital audio tape recorders that led to Section 1008 are also copying files (a bit stream from a CD player into a bit stream on a digital audio medium; the law does not specify that it must be a tape rather than a disk). They are no different than an MP3 jukebox in that respect.

    Anonymous nerd: The data model as presented is pre-normalization. And yes we would expect the students to do something about the repeated value columns that keep the example table from being in First Normal Form.

  18. Jason, I might agree with your argument wrt what a friend is, but actually, in many bizarro land states, buying liquor on Sunday is generally illegal, but becomes legal if you are a member of a private club. Private club membership is often $1.00.

    I would think that who I declare a friend, is a matter of free speech and privacy.

    (OBoop: CLOS, SmallTalk and many systems work just fine w/o friends, C++ requires them.)

  19. Stealing or not stealing regardless of recording or copying, that’s just an act which when the law was enacted was sufficient – until technology changes the landscape.

    But all is equation.

    Somebody is keeping a score on all this that makes it viable for artistes to thrive, consumers satiated, and recording companies bloated.

    A equation which the court-of-law cannot uphold can only be justified by the strength of itself.

  20. I think it’s funny, Phil is lecturinig students at the most prestigious technical school on the planet, with some of the best funding on the planet, though I think that cal tech spends more on their kids, and he wants them to come up with an mp3 file sharing program. Meanwhile, back at the ranch in e europe, a couple of estonian dudes already have figured it out…without MIT. and it works well. and is on 60,000,000 computers in America alone. Anyone else thinking “MIT = just another overrated, over priced camp for 18-22 year-olds?” Meanwhile, phil brags that one of his students has set up an exciting dog-adoption database.

  21. jerry: I can’t see how odd liquor laws refute (via your use of the term “but”) my definition of friendship. I don’t believe and wouldn’t assert (friend == fellow_club_member), if that was the implication. But I wouldn’t know. I’d never become a member of a club that would have me as a member. (Thanks to Groucho Marx)

  22. Est Onian: The students are only given about 20 minutes in-class to work on the data modelling problem. I picked the application of a private MP3-sharing system because it is sort of obvious to the students how it should work (though in fact it is quite different from Napster, et al, in that this is for a private group of registered users and the server keeps track of what they’ve already downloaded, what they like, who contributed what to the library, etc.).

    Don’t feel bad for MIT grads, even if it takes some more than 20 minutes to normalize that data model. Any of them who choose to do so can go to medical school, become radiologists, live comfortably on $200,000 per year, and, if they’re still interested in computer nerdism, the remainder of their salary (the average radiologist in the U.S. makes about $300,000 per year) should suffice to hire at least 3 full-time Java coders in Eastern Europe or India.

  23. Good point, Demetri. Probably it is a mistake for any American to choose a career that can be done while sitting at a computer screen, just as it is probably a great idea for someone in India to choose such a career; presumably in a totally rational economy the wages for such jobs will reach a worldwide equilibrium. But an MIT grad who goes to med school can always become a surgeon or pick a similarly hands-on speciality.

    [This might not work for elective surgery. A friend of mine wants to get his eyes blasted with lasers. The Boston doctors who do this charge about $5000. One of the world’s leading specialists is in Montreal, where laser eye correction has been an approved procedure for many more years than here in the U.S. and consequently this guy has more experience than any American eye surgeon. The price for the procedure in Canada? Done by the world’s leading practitioner? About $1600.]

  24. Senor Greenspun wrote It bothers me that I can’t find the statue but some time in the 1980s…

    Perhaps you were looking for 17 USC 109 (b)(1)(A)? I remember I used to be able to go to the computer store and rent Ultima IV before this law got passed.

    …the owner of a particular phonorecord…(may not)…dispose of…that phonorecord…by rental, lease, or lending…

  25. Philip wrote: “Home taping was always in legal limbo. Record companies claimed it was costing them $billions. Most consumers thought it was fair use. Record companies hadn’t yet developed their brilliant business strategy of suing 12-year-olds and therefore there was no judge to establish a precedent.”

    I think they can not sue, not because there’s not a precedent, but because there is. Long time ago they tried to sue Sony for producing home vide-recorders. They lost, Sony won.

    One thing I found very funny was when I last went to movie theater and they ran an ad, before the movie, showing some video-technician, saying that it is not huge-salary producers that suffer from pirate-copying but “ordinary” people like him.

    Well, somehow it is still huge-corporations-backed RIAA who is suing people, is not it?

    One more very funny thing was when Madonna tried to be “smart”, putting a huge file on a file-sharing network, so that people would think it’s her latest video and use up their internet traffic in vain. File was mostly blank, with small recording of Madonna’s voice saying “What the *** do you think you are doing?” The result was her site being hacked with a reply “This is what the *** we think we are doing”. 🙂

  26. Re the law that prohibits CD rentals: did you mean you couldn’t find the ‘statue’, or the ‘statute’? And, if a statute, is the reason you couldn’t find it because it doesn’t exist? I think I’ll have a look over on urbandlegends.com.

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