"Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances," MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

"It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement," van Uitert wrote on behalf of the movie studios, a position shared with the Recording Industry Association of America, which sued Thomas, the single mother of two.

What, so we should go by your say so?

Local mirror of MPAA's Thomas Brief

The latest outrage in the record companies' ill-conceived war against their customers comes via a Washington Post report that the RIAA is suing someone for ripping to their computer copies of CDs they've bought and paid for. A subsequent clarification shows that this particular case is more about placing MP3 files in a shared directory, rather than ripping, per se. But the record companies still say ripping your own CDs is stealing.

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Now that times are tough, though, the record companies have shown they're clueless. Rather than forge a new business model to make money in the age of the Internet, they're fighting a losing battle to hold on to an era that's already passed. OK, if they're unable to handle the copyright benefits they've been like generously awarded, we should do what we do when a child shows they can't handle a privilege they've been granted. We should take it away.

How about we cut the copyright terms down to five years. Retroactively. So now "Stairway to Heaven" is in the public domain. Hey, the ongoing RIAA lawsuit problem is gone in one fell swoop.

...

What about those who say copyrights are some kind of God-given right, which is our due under a capitalist system? That's simply a misunderstand of their purpose. Copyrights, like patents, weren't implemented to protect their owners in perpetuity. They are part of a delicate dance which attempts to balance societal benefits against incentives for writers and inventors. The intent is that you want to incentivize people to push the state of the creative and technical arts, but you don't want give those folks such overbearing protections that future advances by other innovators are stifled.

Or we could go with the original 14 years.

The issue at hand is whether the RIAA's investigator SafeNet (the company that acquired MediaSentry) now needs to disclose its digital files, validation methodology, testing procedures, failure rates, software manuals, protocols, packet logs, source code, and other materials, so that the validity of its methods can be evaluated by the defense. SafeNet and the RIAA say no, claiming that the information is 'proprietary and confidential'. Ms. Lindor says yes, if you're going to testify in federal court the other side has a right to test your evidence. A list of what is being sought (pdf) is available online. MediaSentry has produced 'none of the above'. 'Put up or shut up' says one commentator to SafeNet.

A contingent of prominent artist managers claims that little to none of that money has trickled down to their clients. They are now considering legal action.

"Artist managers and lawyers have been wondering for months when their artists will see money from the copyright settlements and how it will be accounted for," said lawyer John Branca, who has represented Korn, Don Henley, and The Rolling Stones, among others.

"Some of them are even talking about filing lawsuits if they don't get paid soon."

Record label sources said corporate bosses are still deciding on how best to split the money. In determining the payout, they said not every artist is owed money and it must be calculated with regard to the level of copyright infringement for each artist.

What's more, these sources said that after the labels recouped their legal expenses, there wasn't much left to pass along to the artists.

But a source on the artists' side said that is an argument heard all too often in the music business.

Getting money out of the major labels is never easy, but given the industry's downward financial spiral it is exponentially more difficult now, the source said.

"The record labels are experts at transferring money around and putting the onus on artists managers to find it."

Hmmm, looks like litigation isn't a valid business model. Be funny if the artists did actually sue the RIAA.

The $300 "ultra deluxe edition" of Nine Inch Nails' Ghosts I-IV, limited to 2500 copies, sold out in a couple days (I believe released Sunday, no longer available this morning). There are some manufacturing costs, but they don't appear to be using any precious materials. So if an artist typically makes $1.60 on a $15.99 CD sale, profit from sales of the limited edition already matches profit from a CD selling hundreds of thousands of copies.

Convinced the current music business infrastructure (requiring artists to rely on labels) is broken, Nine Inch Nails front man, Trent Reznor, released his band's new album Sunday night via his official site, marking yet another business experiment for this artist in the changing music market.

Last year, Reznor announced his band would free itself from record labels, and it looks like he’s following through with his promise. He released the new album, Ghosts I - IV (Ghosts Volumes One though Four), Sunday at 6 PM, says the LA Times' Extended Play blog.

The musician's experiment relies on the theory that customers would be willing to pay for the music if there's extra value included, so he released the album in various packages. The first 9 tracks are available for free in a high-quality, DRM-free MP3 format, and a 40 page PDF book and a digital extras pack with wallpapers, icons, and more come included.

Everything in the free package is included in the 5$ set, but the rest of the album gets thrown in, and it's available in a variety of DRM-free formats including 320 kbps MP3, FLAC Lossless, and Apple Lossless.

At a Washington, DC, tech conference last week, RIAA boss Cary Sherman suggested that Internet filtering was a super idea but that he saw no reason to mandate it. Turns out that was only part of the story, though; Sherman's a sharp guy, and he's fully aware that filtering will prompt an encryption arms race that is going to be impossible to win... unless users somehow install the filtering software on their home PCs or equipment.

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But who would voluntarily install software that would continually scan incoming P2P streams for copyrighted material after that material has been decrypted? Or software that would watch every song you played and tried to figure out if it was legit?

Sherman knows it's a tough sell. "Why would somebody put that on their machine?" he asked rhetorically. "They wouldn't likely want to do that."

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What's most incredible about all of this is that the RIAA and some ISPs (namely AT&T) are seriously moving ahead with a filtering regime despite their own admissions that it won't work. Filters might work, they might allow for fair use, and they could conceivably be built in such a way as to maintain privacy, but it just wouldn't matter. Filtering as a concept is ultimately doomed by encryption unless the "filters" simply block entire protocols altogether, and talking about the consumer benefits of installing RIAA-approved filtering software is just another sign of how ludicrous the entire debate has become.

According to papers filed by the RIAA at the Copyright Royalty Board, the labels want the board to reduce the rate to 8% of wholesale revenue. The current rate is about 9 cents per song, but it often is lowered in negotiations with the record companies. That money usually is split 50-50 between the publisher and the songwriter.

I thought these companies were fighting for the creators of the music, not against them?

A number of motions were filed on January 28th, by both parties, in Lava v. Amurao, pending in White Plains, New York, before Judge Brieant.

First and foremost, the RIAA has moved to voluntarily dismiss its case, with prejudice. In an unusual tactic, it affirmatively argues that it did nothing wrong in pursuing Mr. Amurao, and should not be charged with Mr. Amurao's attorneys fees.

Other motions filed:

By defendant:
--to exclude MediaSentry testimony on ground of illegality;
--to take deposition of Matthew Oppenheim; and
--to compel discovery into the record companies expenses per download.

By plaintiffs:
--for discovery sanctions against Mr. Amurao; and
--for summary judgment dismissing copyright misuse counterclaim.

ASCAP's essay, "Common Understanding: 10 Things Every Music Creator Should Know About Creative Commons Licensing" nicely highlights some important considerations that any musician should review before using a CC license. Unfortunately, however, it also continues some common misunderstandings about Creative Commons. I've reprinted, and responded, to these in the extended entry below. But before the details, there is one important fact of agreement to keep in view, and one important disagreement:

We certainly agree with ASCAP that "music creators should fully understand the terms to which they are agreeing and the implications down the line." That applies to CC licenses as much as to a recording contract. And we're as keen as anyone to make sure that understanding is there.