Thursday, January 01, 2009

Questions about New York State Attorney General agreement with record labels

On December 19th it was announced by the Wall Street Journal that the New York State Attorney General had brokered some sort of tentative agreements between the 4 major record companies and the internet service providers and that because of this they were no longer going to sue end users except for large uploaders.


-the part of the announcement which stated that the RIAA had stopped bringing mass litigations in early Fall was shown to be false;

-IP Watch was unable to get confirmation of any agreements with ISP's;

-Digital Music News was unable to get confirmation of any agreements with ISP's and I indicated my curiosity about the AG's involvement:

I am also waiting to see what confirmation journalists will be able to obtain regarding
(1) the alleged involvement of the New York State Attorney General in brokering the phantom agreements,
(2) what New York law(s) the AG was enforcing,
(3) what violation(s) of New York law the AG was investigating, and
(4) what kind of agreement the AG made with the record companies.
Well the more I think about it the more questions I have about the New York State Attorney General's involvement.

Couldn't this AG involvement be viewed as a device to give the trappings of antitrust immunity to an industry-wide agreement, or an agreement between two (2) industries?

Think about the tobacco master settlement. There, the tobacco industry used state AG involvement and the pendency of lawsuits to create a highly restrained system of competition. But for the involvement of public officials and the litigation settlement, the industry itself could not collectively have imposed this system of restraints.

The music labels, however, aren't litigating against ISPs. And the people they are litigating against -- the defendants in the RIAA cases -- were not invited to participate in these back room discussions.

The Wall Street Journal article said:
Over the summer, New York State Attorney General Andrew Cuomo began brokering an agreement between the recording industry and the ISPs that would address both sides' piracy concerns. "We wanted to end the litigation," said Steven Cohen, Mr. Cuomo's chief of staff. "It's not helpful."

As the RIAA worked to cut deals with individual ISPs, Mr. Cuomo's office started working on a broader plan under which major ISPs would agree to work to prevent illegal file-sharing.
If Mr. Cuomo's office was representing 'the people' -- i.e. the people victimized by "the litigation" -- why did he never consult with any of them, and why did he not get the existing lawsuits dropped, and why did he not get assurance that no more lawsuits would be brought? How can they talk about "both sides" when the side with the most at stake -- the side being sued -- wasn't even invited to the discussion?

So what was the legal basis for the NYS Attorney General involvement in this coordinated agreement among 4 competitors, and 2 separate industries?


Commentary & discussion:

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Anonymous said...


I see what you are getting at, and I think with the RIAA's past history they are definitely up to something to save their slimy butts.

The sad truth is we as the general public will probably never know what went on in that deal.

Scott said...

"The sad truth is we as the general public will probably never know what went on in that deal."

Not true. Wouldn't any such agreement be a matter of public record under New York's open records laws? The state can't have secret agreements with private industry associations. I'm pretty sure that would be illegal.

Anonymous said...

Back in 2000-2001, the AG's offices made an agreement with the RIAA, and they got burned/tricked badly. (State of Florida, et al. v. BMG Music, et al. Civil Action No. 00 CIV 5853 - U.S.D.Ct., Southern District of New York) As part of the settlement promise, I believe the RIAA promised to give the different states free music CD's to place in public libraries and give to schools, to compensate for price fixing. What happened was that the Record Industry dumped trash music and CW.s on the public because the deal was poorly negotiated and monitored. The AG's offices ended up with egg on their faces. Maybe I am wrong, but I would question any dealings with the RIAA.

Jadeic said...

Anonymous - you are quite correct to draw attention to that particularly callous action by the RIAA. It was at around that time that my contempt for the industry finally crystallised: which didn't sit well with my Business Management lecturer on the BA Popular Music & Music Technology course at the time.

These responses by the 'lucky' librarians were fairly typical at the time:

"Tacoma (Wash.) Public Library, who last week received a shipment of 1,325 CDs that included 57 copies of “Three Mo’ Tenors,” a 2001 recording featuring classically trained African American tenors Roderick Dixon, Thomas Young and Victor Trent Cook; 48 copies of country artist Mark Wills’ 2001 album “Loving Every Minute,” 47 copies of “Corridos de Primera Plana,” a greatest hits compilation by Los Tuscanes de Tijuana (2000); 39 copies of “Yolanda Adams Christmas” (2000); 37 copies of Michael Crawford’s “A Christmas Album” (1999) and 34 copies of the Bee Gees’ “This Is Where I Came In” (2001).

“Not to disparage the artists represented, but I was pretty surprised by the numbers,” said librarian Lara Weigand, noting that the library system normally would stock no more than two copies of the most-popular titles at each of its 10 branches. “I didn’t know what the terms of the settlement were for schools and libraries, but I did not think that it was the intent that we would get more copies than we could use.”

Other libraries reported similar anomalies in their part of the settlement, which earlier this year led to approximately 3.5 million consumers who signed up as complainants in the lawsuit receiving checks for $13.86 apiece.

Eva Silverstone, communications director for the Spokane Public Library, said the library in eastern Washington received many copies of “Three Mo’ Tenors” among its 1,325 CDs, along with “tons of copies of Christina Aguilera’s Christmas album.” All told, she said, 15 titles represented 36 percent of the shipment.

“We’ll be able to add approximately 283 titles to our collection,” she said. “We’re obligated to either trade the others with other libraries or give them to our friends of the library group for sale, with any proceeds going to support the music program,” she said. “It’s a positive thing, but it’s also a little bit disappointing.”

The public library in Worcester, Mass., with a main library and two branches, received 150 copies of “Nastradamus,” a 1999 album by the rapper Nas, and 148 copies of “Entertainment Weekly’s Greatest Hits of 1971.”


Alter_Fritz said...

"and 34 copies of the Bee Gees’ “This Is Where I Came In” (2001)"

Hey, at least that one was not so bad ;-)

I for example got (not for free but I bought it myself back then) that same named single song released on MaxiCD which had an Mpeg version of the musicvideo on it too. :-)

So those ungreatful libraries should not complain too much; Shure most of the CDs were stuff the most known and well-respected record companies would have had to destroy expensively as special waste anyway, but at least you can bet that some folks in some AG offices were quite happy after those nagotiations! (Anyone has checked carrer roosters of some of them afterwards?!)

Alter_Fritz said...

Lets put "fair use" at test one time more.

The beforementioned Bee Gees song/video is P and C 2001 Polydor Ltd (UK).
The Papersleve of the MaxiCD containing the .mpeg transcode of the musicvideo states beside others the following:
Disclaimer: this multimedia programme is provided to the user without warranties, express or implied of any kind. Polydor Ltd (UK) shall not be liable for any actual or consequential damages arising from the use, or the inability to use the programme.

I could used the programme and thanks to the newest tool of the pirate bay guys I was able to transcode the video I got with the AudioCD into some nice handy "minimusicvideofile" in 176x144 for my Samsung Mobile.

I claim that this use of the content is fair use and I dare Evil4 to sue me in NY for that act to my personal pleasure and enjoyment of the music I payed a license fee for!.
(The act of uploading it to rapidshare and posting the link here is not covered by this daring!)

The great PirateBay transcoding tool:

The fair use transcode of the Randeen St. Nicholas video:

Anonymous said...

I greatly respect the content and thought that goes
into your posts, however, posting that link COULD
conceivably cause Ray problems.

As we have already seen, right or wrong has
nothing to do with their suits. The
size of their pocketbooks is the
deciding factor and I don't think
Ray's pocketbook could support
a direct suit against him because
of a direct link to RIAA material
on his blog.

There is enough trouble already, let's
not poke the bear with a stick.


Anonymous said...

If AG Cuomo wants to be Senator Cuomo, or even to get reelected as AG, he should go after the RIAA with full force with whatever tools he has, and not try to be involved as an honest broker - assuming that he has any business to get so involved. The latter course could prove to be a big, dangerous and very controversial mess for him.

Alter_Fritz said...

"posting that link COULD
conceivably cause Ray problems."

well, I'm not a Lawyer of course, But since this is an american server in america and the "owner" of these pages is an american lawyer, I doubt that Ray get in trouble with german law that content industry has managed to grease from buyable german politicos! We have what is called "Störerhaftung" but on information and beleive on my part, in america guys like Ray are absolutely NOT responsible for anything someone says or do in an interactive forum.

Of course Ray is the expert here, and I guess he would have said if links to stuff posted by commenters can get him in liability trouble.

So I say, it's time to not only poke the bear, but to show him who is the true masters and that is society which ultimately owns culture as a whole.