[rumori] DO WE REALLY HAVE TO SUE THE RIAA??? (fwd)

Steev [rumori] DO WE REALLY HAVE TO SUE THE RIAA??? (fwd)
Tue, 18 Aug 1998 10:03:18 -0700 (PDT) (00903488598, Pine.LNX.4.02.9808181001580.9544-100000ATflotsam.detritus.net)


Sorry if some of you have already seen this. This is
incredibly important.

see http://www.negativland.com/riaa/dowesue.html for the web version.


Steev Hise, Wannabe Has-Been
steevAThise.org http://www.cyborganic.com/people/steev recycled art site: http://www.detritus.net -----------------------------------------------------------------
"I think a picture is more like the real world when it's made out of the real world." - Robert Rauschenberg
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---------- Forwarded message ----------
Date: Mon, 17 Aug 1998 14:07:27 -0700
Subject: DO WE REALLY HAVE TO SUE THE RIAA???

DO WE REALLY HAVE TO SUE THE RIAA???


For immediate release 8/17/98
From: Negativland


In a surprising, shocking, and probably totally illegal turn of events,
recent actions by the RIAA have intimidated the company that presses
Negativland's CDs into refusing to press the new Negativland CD "OVER THE EDGE Volume 3 - The Weatherman's Dumb Stupid Come-Out Line", originally slated for an August 17 release.

The point of this lengthy press release is to publicize the fact that a
situation now exists that is no longer about an individual record label or
publisher going after an individual "copyright infringement" as has happened to Negativland and many others in the past. We are now faced with
the very real situation that the ENTIRE corporate music industry (via the
RIAA) is preventing an ENTIRE aesthetic, completely circumventing our legal
system, and keeping the raging debate over the re-use of our common
culture from ever reaching a public or legal forum. The original intent of
copyright law was to promote a public good, not a private one and no matter
how valid the original intent of our nations copyright laws may have been,
they are now clearly being subverted.

Negativland is continuing their search to find a plant willing to press
their latest CD, but so far have had no luck.

WHAT IS THE RIAA?

RIAA is an acronym for the Recording Industry Association Of America, Inc.
They are a lobbying and enforcement arm of the Big Five multi-national
entertainment companies: Sony, Time-Warner, Universal/Polygram, BMG, and
EMI. The RIAA is known more publicly for their attempt to impose a flat tax
added onto the price of blank cassettes, their efforts to stop the consumer
use of DAT tapes, closely advising the government about conservative new
copyright legislation, and busting down the doors of suspected music
bootleggers and pirates in the real world and on the Internet. They also
hand out all those gold and platinum records to the music biz's
bestsellers.

WHAT IS NEGATIVLAND?

Negativland is an experimental-music and art collective that has been
recording and self-releasing music/audio/collage works since 1979.
Negativland has become, by necessity, interested in copyright law and the
"fair use" statute within it. What began as a natural attraction to found sound in a society overflowing with disposable media has now become a
conscious desire to show by example the crucial difference between pirating
or counterfeiting anothers work straight across in order to profit from the
saleability of that single source, and the creative transformation of
material from multiple sources into new, "original" works. This is known in the art world as COLLAGE and it has had an undisputed legitimacy in
virtually all art forms since the turn of this century. However, the owners
and operators of mass marketed music, being the latest medium in which
collage is being practiced, continue to naively attempt to criminalize the
technique of audio collage as if it was an illegitimate intruder on
originality and nothing more than a form of theft.

WHAT HAPPENED?

On July 29, 1998, the CD pressing plant that Negativland has been using
for the last four years demanded that Negativland provide proof that the
samples on their new CD had been cleared and paid for. While doing the
digital transfer to prepare the CD pressing master they had noticed some
chunks of music mixed into the sound collage that were appropriated from
Pink Floyd and The Village People. In all the years that Negativland has
been releasing CD's full of creatively appropriated found sounds on their
own Seeland Records label, this issue has never come up with the CD plant.
In the ENTIRE corporate mainstream and independent music industry, the
"problem" of clearing a sample has always been an issue between the labels, the artists and the publishers, NOT THE MANUFACTURERS (this is one of the
reasons why Negativland runs their own label). But apparently, that has now
changed.

GUIDELINES FROM THE RIAA

The RIAA has issued guidelines to CD plants on what to look out for to
prevent CD piracy and counterfeiting, and, since June of this year, is now
"advising" CD manufacturers that they need to look out for samples as well. CD plants are specifically advised to (emphasis added)-

1 Conduct routine review of all orders to determine legitimacy.
2. Consult the RIAA, as necessary, concerning sound recording ownership.
3. Retain advance order payment for an order if it, OR ANY PART of the
order, is determined BY YOU to be infringing.
4. Refer all acts of infringement and related documents to appropriate law
enforcement authorities and the RIAA ( acting on behalf of it's members),
and
5. Confiscate and destroy all product ( determined to be infringing BY YOU)
including THE ORIGINAL MASTER RECORDING manufactured.

Negativland has no problem with any of this being applied to counterfeiting
and piracy. But according to Dave Williamson of Disctronics CD Replication,
the RIAA recently informed him that an uncleared sample was as illegal as
copying an entire song, that an uncleared sample was automatically a
copyright infringement, and that Disctronics could be sued for up to
$100,000 per infraction. Cinram CD Replicators recently turned over
suspected master recordings to the RIAA and the RIAA destroyed them.

NEGATIVLAND SPEAKS TO THE RIAA

Negativland's Mark Hosler spoke to Matt Oppenheim of the RIAA about this.
Mr. Oppenhiem is one of the RIAA's civil litigation attorneys and handles
lawsuits against CD pressing plants. He told Mark told that "the RIAA does not tell plants one way or the other what they should or should not do, but
we do advise plants that they are liable if they press infringing
material". So, the "industry experts" of the RIAA issue specific guidelines to the plants, tell plants that they could be liable for up to
$100,00 per unpaid and uncleared sample infraction, consider this to be
"not telling the plants one way or the other what they should or should not do" and fail to help the CD replicators distinguish between the proper and improper use of copyrighted materials.

The RIAA's position is that it's ALL copyright infringement without any
room for protected speech. The CD plants are not informed that copyright
law specifically permits the fair use of copyrighted material in certain
circumstances and, in cases of sampling, the plants are put into the
untenable position of having to act as judge and jury on all incoming
releases.

THE RECORDING INDUSTRIES DIRTY LITTLE SECRET

As an ironic aside here, it should be pointed out that, contrary to what
the corporate music biz and the RIAA would have you believe, Top 40 major
label recording acts DO NOT CLEAR ALL THEIR SAMPLES. Such huge acts as Nine
Inch Nails, Beastie Boys, Beck, Public Enemy, Soul Coughing and many, many
others only clear those samples they use that are RECOGNIZABLE. If they are
altered or mutilated enough so as to be unrecognizable, almost no one
bothers to clear their samples or pay sampling clearance fees. The supposed
industry wide practice (and standard contractual obligation) of clearing
ALL your samples is simply not followed. It's all done with a nod and a
wink. When they are cleared, it has nothing to do with ethics or the law or
ideas of right and wrong, as the RIAA and the mainstream music industry
would have you believe. It only has to do with what you think you can or
cannot GET AWAY WITH. If these acts were honest about all the samples they
REALLY use, then, according to the new guidelines of the RIAA, none of
their CD's could be pressed any longer either.

SOME BACKGROUND

Right now CD plants in North America (especially the larger ones) are extra
cautious about avoiding any trouble - recent lawsuits by the RIAA against
CD replicators DMI and AmericDisc for pirating and counterfeiting CD's (for
$4 million and $7 million respectively) have sent the intended chilling
message throughout the entire CD replicating industry - YOU WILL BE HIT
HARD IF YOU COUNTERFEIT! Negativland is strongly AGAINST the pirating and
counterfeiting of other peoples CD's, but the RIAA is tarring sampling and
audio collage with the same pirate brush. Negativland's CD plant was not
interested in the fact that Negativland knew that their transformative
re-use of the sampled material was a fair use under copyright law or that
Negativland was quite willing to defend this re-use as a fair use in a
court of law. They did not care that Negativland had already indemnified
them or that their refusal to press the CD because of fear of the RIAA
could be seen as being what is legally known as "prior restraint" and therefore illegal. The pressing plant was not interested in hearing any of
this, and quite understandably so - it simply wasn't worth the financial
risk for them to take Negativland's little 2000 copy CD pressing job when
the RIAA, representing the five biggest multi-national record labels in the
world, is breathing down their necks. Once the plants are put on notice
that a particular action (like pressing a Negativland CD) is potentially
infringing, they are at risk of being held liable for what is legally known
as "contributory infringement". Most plants are entirely dependent on the members of the RIAA for their livelihood and dare not cross them even in
the face of outrageous and oppressive behavior.

As we said earlier, this creates a situation in which the issue is no
longer about an individual record label or publisher going after an
individual recognizable "infringement" as has happened to Negativland and many others in the past. This is now about the entire corporate music
industry preventing an entire legitimate aesthetic (see NEGATIVLAND'S
TENETS OF FREE APPROPRIATION and NEGATIVLAND BIO on their website for more
on this - www.negativland.com), completely circumventing our legal system,
and keeping this raging debate over the re-use of our culture from ever
reaching a public or legal forum.

AN ANALOGY

An analogy might be this - should a printing press be held legally
responsible for the content of everything it prints? If a newspaper printed
something libelous or untrue and you wanted to stop them, who would you
sue? The printing press? No, you would sue the newspaper publisher and/or
the author of the article. You would not punish the printing press. Is AT
& T held legally liable because the Oklahoma City bombing was partially planned out over their long distance phone lines? No, they are only the
carrier. Is an Internet Server Provider in the U.S. held accountable for
the content of the e-mails transmitted through its system? The
Telecommunications Act of 1996 says no.

PRIOR RESTRAINT

Let's look up some definitions of "prior restraint" in Black's Law Dictionary - "a system of 'prior restraint' is any scheme which denies use of a forum in advance of its publication. The First Amendment prohibits the
imposition of a restraint on a publication before it is published without
there first being a judicial determination that the material does not
qualify for First Amendment protection. Prior restraints on speech and
publication are the most serious and least tolerable infringement on First
Amendment rights." And The Oxford Companion To The Supreme Court Of The United States says "The prohibition on prior restraints on speech or press lies at the very core of the First Amendment....prior restraint has been
equated with censorship."
Intellectual property attorney Alan Korn, who has worked with Negativland
in the past, agrees that efforts to suppress the manufacture of works
protected as fair use under copyright law may constitute prior restraint.
(See Supreme Court Reaffirms Rejection Of Prior Restraints in CBS Inc. v.
Davis, ___ U.S. ___, 114 S. Ct. 912, 127 L. Ed. 2d 358, 22 Med. L. Rptr.
1285 [1994] Judge Blackmun. An article about this case is on Negativland's
website).

CONSTITUTIONAL LIABILITY

Civil rights and intellectual property attorney Paul Rapp tells Negativland
that "the RIAA, by actively policing federal copyright laws on behalf of its members, is performing a governmental function, and this may expose
them to constitutional liability."
In a claim of constitutional liability against the RIAA, the Courts would
examine the extent to which the RIAA works with the government. Although
the RIAA itself is not a governmental entity, the RIAA has, for almost 30
years, worked in tandem with law enforcement on all levels, including
training and education of law enforcement personnel, supplying expert
witnesses, and the preparation of legal briefs for the government to use in
the prosecution of pirated recordings. This long- standing symbiotic
relationship with the government, in addition to the RIAA's independent
efforts to police federal copyright laws on behalf of its corporate
members, opens up the RIAA to liability for constitutional violations
arising from its activities.

RESTRAINT OF TRADE

And finally, contract attorney Hal Stakke adds that "the actions of the RIAA may also constitute unlawful restraint of trade and interference with
business and contractual relations." The RIAA heavily lobbies state and federal officials on behalf of corporate monopolies that control 90% of all
recorded music in this country and thus the RIAA's abilities to suppress
the manufacture and distribution of material it does not approve of is
enormous.

PRE-EMPTIVE CENSORSHIP

The actions of the RIAA are an act of pre-emptive censorship. They deny
musicians, record labels and music publishers the opportunity to work out
issues of fair use in a court of law and create a situation in which, if
they successfully intimidate both large and small CD pressing plants all
over the U.S., Negativland and many others will no longer be able to press
ANY of their current, future or past CD's. A truly disturbing scenario. The
profits from sales that allow Negativland to continue to exist have always
been marginal and Negativland's ability to keep releasing new work has
always hung by a slender thread. This thread now appears to be breaking.

BUT WHAT DOES THE RIAA HAVE TO SAY?

In the rest of the half-hour long conversation with Matt Oppenhiem of the
RIAA, Negativland's Mark Hosler tried to describe the troubling situation
that Negativland was in (though in the conversation Mark only identified
himself as running a small label with 25 releases.....Negativland wasn't
quite ready to make itself a martyr for this cause just yet). Mark told
him that they had taken the "offending" release to four different CD pressing plants and been turned down by them all and Mr. Oppenhiem replied
"Well, that tells me that we are doing our job." He then said "This should tell you that you need to try and get this sample cleared". When Mark tried to explain that he felt that his transformative re-use of copyrighted
material for parody, critical or other creative purposes was a fair use,
the conversation took a nose dive. The idea that anyone could suggest that
there was any possible conceivable instance in which re-using a fragment of
someone else's material could be done WITHOUT getting permission and
WITHOUT paying sampling clearance fees was obviously totally insane to Mr.
Oppenheim. "Are you a lawyer?!", he demanded to know. "Because fair use is not a right, it's a defense!"
Clearly, the RIAA believes that their interpretation of copyright and fair
use is the ONLY interpretation, and are not interested in any other point
of view. Fair use IS raised as a defense when one is involved in a lawsuit
for copyright infringement, but it is also one of the MAJOR EXCEPTIONS to a
copyright owners exclusive monopoly of a copyrighted work....and if fair
use is seen ONLY as an affirmative defense, then this interpretation of
fair use creates a situation in which prior restraint and self-censorship
is inevitable. When Mark suggested that what the RIAA was engaged in DID
amount to an act of censorship, Mr. Oppenheim became furious. "You are making this into a political issue and accusing us of being censors!" When Mark suggested that if the RIAA could not be reasoned with, then perhaps
the only thing to do was to sue the RIAA, Mr. Oppenheim hung up the phone.

WHY WE THINK THIS IS HAPPENING

In effect, the RIAA is attempting to strong-arm manufacturers into seeing
the issue from only its perspective, without technically violating any
laws. Is Negativland being singled out here in some way? We don't think
so. Besides stopping pirating and counterfeiting, the corporate music
industry has always wanted to stop unpaid sampling in music. Into the 90's
it might appear that they were fighting a losing battle because unpaid
sampling was continuing to bubble up from the underground of techno,
collage and hip-hop in all kinds of freely appropriated forms. And some of
the more notorious users like Negativland actually had the nerve to
publicly claim that it was ART, it was SURREALISM, it was COMMENTARY, it
was SATIRE, it was FAIR USE, and it was NOT piracy or counterfeiting
(which, in Negativland's opinion, is the only thing this presumptuous
organization should be "legally" concerning itself with anyway).
Worst of all, using this annoying "art" terminology (not to mention the amusing and interesting works that have been created this way) has probably
begun to legitimize this practice in the public mind (exactly one of
Negativland's tactics for the last six years). Suing artists in public can
create bad "anti-art" publicity for the litigators, thus undoubtedly preventing them from threatening or suing every usage they would like to
(it is perhaps because of the publicity Negativland generated around the U2
lawsuits that Negativland has NOT been sued for continuing to do the same
thing they got sued for in 1991). Their methods were inconsistent and
getting more so.

But now, via the RIAA, the Big Five has discovered an effective end run
around the "art" barrier that prevented their omnipotent control over ALL possible uses of their very public private property. Intimidating the CD
pressing plants into filtering out any and all unpaid uses prevents ANY
appearance of this type of material in the marketplace which has not been
cleared and paid for. Anyone who can still discern a difference between art
and commerce knows that the RIAA's actions will even further reduce any
form of sampling or sound collage work because artists both outside and
inside corporations, or out on culture's fringe, will simply not be able
to afford the going rates charged for using this stuff. Or they will be
refused outright because their use annoys the sample owner. EVERY USE will
be scrutinized and runs the risk of being censored prior to its coming
into existence for whatever reasons might enter the unknown mind of the
person listening at the pressing plant (!) who will be initially monitoring
this.

Negativland's last studio recording, DISPEPSI, could be refused because the
pressing plant would demand proof in writing that PepsiCo had given
Negativland permission to use bits and pieces of their commercials (
PepsiCo did NOT give Negativland permission, HAS heard the CD, and has
publicly stated their decision to do NOTHING about the release. This is a
perfect example of "fair use" in everyday practice, recognized even by PepsiCo as no big threat to their wealth and as being legally defensible as
found sound social/cultural commentary).

ENOUGH ABSURDITY

Well, enough absurdity! This is clearly unacceptable in terms of both
freedom of speech and freedom of expression. Copyright is a LIMITED right.
It is NOT an exclusive property right. Copyrights exists to protect
intellectual property and encourage expression by allowing the creators to
profit from their creations, but it is a LIMITED RIGHT (look it up!)
because if protection and control under copyright go too far, then
creativity and free expression is DISCOURAGED. In the anti-art interests
of maximum profit, the RIAA, their lawyers and those who they represent
have conveniently forgotten all of this and appear to be accountable to no
one.

Even if you don't care about copyright issues, intellectual property law,
the evolution of art and ideas and culture, or the ominous feel of having
corporations own and control all of your culture, consider this - do you
want to see a situation in which transnational corporations are telling
manufacturers to decide what is and is not acceptable art? Where will they
intrude next? Shouldn't these issues be decided in the public eye and in a
court of law?

No matter how valid the original intent of our nations copyright laws may
have been, they are now clearly being subverted when they are used to
suppress the public need to reuse and reshape information, to censor
resented works, and to garner purely opportunistic incomes from any public
use of previously released cultural material which is, in fact, already
publicly available to everyone. The original intent of copyright law was to
promote a public good, not a private one. NO ONE SHOULD BE ALLOWED TO CLAIM
PRIVATE CONTROL OVER THE CREATIVE PROCESS ITSELF.

WHAT CAN I DO TO HELP?

This issue is far too big for Negativland to take on alone. If anything is
to be done, then we need someone to organize and keep track of all those
folks out their who are concerned and outraged about this. Perhaps the RIAA
can be reasoned with to re-think their tactics, but, with their track
record, we kind of doubt that will happen.

Music producers and consumers might need to consider organizing to bring a
class action suit against the RIAA that allows them to CONTINUE their
efforts to stop piracy and counterfeiting and bootlegging, but STOPS them
from interfering with sampling, STOPS them from interfering with the re-use
of our common culture and STOPS THEM from blocking the fair use rights the
U.S. Copyright Act gives every citizen and creator. The RIAA has no
business being art police.

If you are a lawyer, a label , a musician, an artist, a CD broker, a CD
replicator, a writer...anybody who feels as freaked out about the
implications of this as Negativland does, please add your name to our
announce list (see below) to be kept informed about what happens next and
how you can help....and please talk to each other and PLEASE write a
thoughtful letter to the RIAA.

These issues are not about to go away.....


_________________________________________________________________________
For their help in preparing this press release, Negativland would like to
thank attorneys Alan Korn, Paul Rapp, Hal Stakke and Rod McCarvel. Also
thanks to Susan King, Gadgetto, David McConville, Jon Land and Brian Myers
for research assistance.

To be kept up to date on these issues and ways that you can help, please
subscribe to the Negativland Forklifters Club Announce List at -
http://negativland.com/touch.html
To send a general message to the RIAA please write a THOUGHTFUL AND
CONSTRUCTIVE LETTER, and send to the following list -

hrosenATriaa.com, sdonofrioATriaa.com, fcreightonATriaa.com, jbettsATriaa.com,
sfabrizioATriaa.com, jflatowATriaa.com, dincorvaiaATriaa.com,
jbendallATriaa.com, clawhornATriaa.com, jhenkelATriaa.com,
lpellicciaATriaa.com, jbermanATriaa.com, cshermanATriaa.com, nashbyATriaa.com,
lbocchiATriaa.com,
pbrooksATriaa.com, jegasATriaa.com, jflemingATriaa.com, jganoeATriaa.com,
hkimATriaa.com, smarksATriaa.com, hmccaffreyATriaa.com, jmilbauerATriaa.com,
rmorganATriaa.com, moppenheimATriaa.com, mpetersenATriaa.com,
brobinsonATriaa.com, lsaletATriaa.com, msimcikATriaa.com, tsitesATriaa.com,
dstebbingsATriaa.com, btenorATriaa.com, nturkewitzATriaa.com,
dvaldezATriaa.com, awalshATriaa.com, fwaltersATriaa.com, jwhiteheadATriaa.com,
wyascurATriaa.com

Or send to -
Recording Industry Association Of America
1330 Connecticut Ave. NW
Suite 300
Washington DC 20036

RIAA fax: 202 775-7233
RIAA phone: 202-775- 0101

For more information on the RIAA go to -
http://www.riaa.com
To reach individuals at the RIAA via e-mail-

Hilary B. Rosen
President and CEO
hrosenATriaa.com

Frank Creighton
Senior Vice President, Director of Investigations
fcreightonATriaa.com

Steven J. D'Onofrio, Esq.
Executive Vice President, Director Anti-Piracy
sdonofrioATriaa.com

Jennifer Betts
Coordinator, Special Anti-Piracy Projects
jbettsATriaa.com

Steven B. Fabrizio, Esq.
Sr. Vice President, Director, Civil Litigation
sfabrizioATriaa.com

Joel L. Flatow
Vice President, Government Affairs and Artist Relations
jflatowATriaa.com

Denise Incorvaia, Esq.
Anti-Piracy
dincorvaiaATriaa.com

Jennifer L. Bendall, Esq.
Sr. Vice President, Government Affairs
jbendallATriaa.com

Charles A. Lawhorn, Esq.
Vice President, Anti-Piracy Criminal Litigation
clawhornATriaa.com

John Henkel
Coordinator, Artist Relations
jhenkelATriaa.com

Alexandra M. Walsh
Vice President, Media Relations
awalshATriaa.com

Lydia G. Pelliccia
Assistant Director, Media Relations
lpellicciaATriaa.com

Jason S. Berman
Chairman
jbermanATriaa.com

Cary H. Sherman
Sr. Executive Vice President and General Counsel
cshermanATriaa.com

Neal Ashby
Director, Creative Services
nashbyATriaa.com

Linda R. Bocchi, Esq.
Vice President Royalty Administration and Associate General Counsel
lbocchiATriaa.com

Philip R. Brooks
Investigative Associate
pbrooksATriaa.com

Jack Egas
Application Specialist
jegasATriaa.com

James F. Fleming
Director, Technology
jflemingATriaa.com

John H. Ganoe
Vice President, Member Services
jganoeATriaa.com

Heather H. Kim
Assistant Director, Royalty Administration
hkimATriaa.com

Steven M. Marks, Esq.
Vice President, Deputy General Counsel
smarksATriaa.com

Howard McCaffrey
Director, Information Systems
hmccaffreyATriaa.com

Jean R. Milbauer, Esq.
Director, Royalty Administration and Associate General Counsel
jmilbauerATriaa.com

Robert L. Morgan
Assistant Financial Director
rmorganATriaa.com

Matthew Oppenheim
Associate Counsel, Civil Litigation
moppenheimATriaa.com

Marilyn G. Petersen
Administrative Assistant
mpetersenATriaa.com

Barry K. Robinson, Esq.
Vice President, Deputy General Counsel
brobinsonATriaa.com

Lee Z. Salet
Vice President, Administration
lsaletATriaa.com

Mary Beth Simcik
Assistant to the President and CEO
msimcikATriaa.com

Tim Sites
Sr. Vice President, Communications
tsitesATriaa.com

David W. Stebbings
Sr. Vice President, Technology
dstebbingsATriaa.com

Brigette N. Tenor
Assistant Director, Member Services
btenorATriaa.com

Neil Turkewitz, Esq.
Executive Vice President, International
nturkewitzATriaa.com

Donald J. Valdez, Esq.
Vice President, Anti-Piracy Legislation
dvaldezATriaa.com

Frank D. Walters
Coordinator, Investigative Operations
fwalters ATriaa.com

Jonathan Whitehead, Esq.
Assistant Anti-Piracy Counsel
jwhiteheadATriaa.com

Wendy Yascur
Evidence Control Manager
wyascurATriaa.com


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