Open Letter to the Supreme Court
by George Ziemann

19 Mar. 2005 -- RE: MGM v Grokster

Dear Supremes,

I'm not a lawyer, so I'm not allowed to submit a brief in this case. But I've seen you in the logs here before, giving me a shot at catching your eye again within the next 10 days.

First and foremost, has the RIAA ever provided even one solid legal, logical argument as to why this case is different from the Betamax ruling you are being asked to overturn? If they have, I sure haven't heard it yet. Neither did the District Court. Maybe you heard something different.

What you are much more likely to hear is a resounding chorus of "The Pirates Are Stealing Our Stuff," the RIAA's most-played tune for more than 80 years. It is, after all, the same losing offensive strategy they used against radio. Theoretically, you all know that this is a misguided approach to this issue, but just in case they start to convince you, let's look at how hard "piracy" has hurt their business.

In 1999, according to both Nielsen and the RIAA, there were 38,857 new releases, the highest number ever. In 2003, according to Nielsen, 7,581 new releases appeared.
This is a reduction of 80.49% in new product.
According to the RIAA's statistics:
Value of Total Shipments -- 1999 -- $14.58 billion
Value of Total Shipments -- 2003 -- $11.85 billion
Reduction in total value -- 18.72%

Value of Retail Shipments -- 1999 -- $13.05 billion
Value of Retail Shipments -- 2003 -- $11.05 billion
Reduction in Retail Value -- 15.33%
What we have here is a case where they have reduced new product by 80 percent and saw a 15-19 percent drop in shipments. If the RIAA is to be believed, the only reason people aren't buying even more of their dwindling selection is because college kids, dead grandmas and Durwood Pickle's grandkids are listening to them for free.

In 2000, the RIAA stopped tracking new releases, but has no problem spouting false numbers to the government. In 2003, RIAA Attorney Stephen Marks told a DMCA rulemaking hearing that the RIAA had released 120,000 new titles in the "past three years." Actual total for the three-year period -- 104,034
The RIAA submitted a Time magazine story as part of their case ("It's All Free" May 5, 2003). If you gave that any weight, please consider the questionable information in that particular article.
But enough of that. The facts, while interesting, are irrelevant, as one could learn from any set of RIAA year-end statistics. Let's get to the heart of the matter -- non-infringing uses.

EFF offers the Internet Archive as the best example, but that's just because they use p2p to save bandwidth. While they have more than 20,000 shows (approx. 300,000 songs) available, only 856 acts are represented. And they even consider the needs of the 44 artists who will let you stream their live shows but don't want you to download them.

DMusic -- 20,000 artists, 60,000 songs
GarageBand -- Now owns mp3.com's archive.
More than 1.5 million songs from approx. 300,000 artists.

How many artists does the RIAA represent after the recent down-sizing? 5,000? 10,000? Do the needs of the few now outweigh the needs of the many because the many don't have a common lawyer?

We (the independent artists) have all seen the promotional opportunity that global distribution of inferior quality copies provides. Between digital recording tools (ProTools, Cakewalk), mp3 compression and the Internet, we can reach virtually every corner of the globe with out music, free from the questionable contractural agreements demanded by major labels.

The major labels, while charging 99 cents for the same thing we will give away for free, have yet to serve up a million songs for digital per-song consumption, even though they began distribution of digital (CD) product 23 years ago.

Finally, there is one area of the RIAA's case that we agree with wholeheartedly. Their music should be eliminated from the peer-to-peer networks if at all possible. Just tell the rest of us how to mark our files so people can tell the difference and filter out the rest. Grant the RIAA's request and have all of their music erased from the net.

This would give the independents the entire p2p market. It would be our first level playing field in 65 years (the last one was when radio banned ASCAP music). The RIAA doesn't want it, but we do -- if we could only get all of their stuff out of the way, it would be perfect.

George, I hope you don't mind my "piracy" of your open letter.

It is perfect! It SHOULD be entered as a brief. (Think you could get the EFF to submit it on our behalf?)

I was at the IP and Creativity conference in DC on March 16. This was Gary Shaprio and CES's rally and support. I'll write more about that later.

What I want to mention, George Z, is a telling fact from Koleman Strumph. He and Stan Liebowitz have a dueling banjos road gig, debating the relationship of P2P and lost sales. So here I am seeing the same show we saw at Future of Music 2004, with Liebowitz having a hissy fit and rolling his eyes and sighing.

Koleman says, yes, after the high water mark of RIAA sales in 1999, numbers are down 30%. But the meaning of pop music is that exactly: stylistic wrenching changes in taste. Who would or could expect anything other than fickle hormones from teenagers. Think Bobby Sherman. Think David Cassidy. Even the goddess Pam Anderson fell in love with Scott Baio.

The horrible decline in the late 70's early 80's with the instant crib death of disco (down 75%) made the current cycle look like child's play. It's intersting to look back at the music history books of that era, and see the hysteria that Stan Gortikov of the RIAA was puking up. All due to home cassette taping of course, rather than blame the despicable hookers 'n blow excesses of Casablanca Records, Neil Bogart, Robert Stigwood and the like.

What Stan Liebowitz doesn't grasp is that the RIAA has repeatedly been spanked for price-fixing, inflated returns and extortion. And the heyday was 1979, the worse sales downturn ever.

Please note that the explosion of profit in DVD's is because rentals are illegal in the music retail business, a fact that has artificially kept the price obscenely inflated. Not so for films---DVD purchase prices are hovering at $9 to comepte with the $2 rental price.

This is collusion, cartel behavior and price-fiddling on behalf of the music industry.

Otherwise, great work as usual, George Z. Perfect words from the people. Hope the Supremes see the light.

I must admit, I don't have much faith in the system anymore, given that so much of it is bought and paid for by various lobbying groups and cartels. The lone ray of hope I see is that the court system is not bound by those groups and regularly uses some common sense when interpreting the law.

My humble opinion is that the courts are able to do this because a few dedicated people speak the truth regardless of the cost and the Justices actually listen. George Ziemann has written an excellent summary here and even though the music industry would prefer nobody heard his voice it is my hope that at minimum the court does.

Hey Leflaw, if you have any influence with anyone at the EFF it could be a good idea to get them to submit this to the court as Schmoo suggests. I'd like to see the riaa try to rebutt this.

great work George

I just add my humble words of support and agreement with this.

Thank you for your work on this George ! Shmoo...thanks gor posting it!

~CodeWarriorz Thoughts
http://codewarriorz.blogspot.com
http://codewarriorz.xoopiter.com
http://codewarrior.tblog.com
http://members.lycos.co.uk/warriorcode
http://codewarrioz.tblog.com
http://members.lycos.co.uk/codemeister/
http://codewarriorz.blogdrive.com
http://enewsblog.com/codewarriorz/
http://codewarrior.squarespace.com/
http://members.lycos.co.uk/kodewarriorz
http://blogontheweb.com/codewarriorz/
http://codewarrior.zoomshare.com/
http://codewarriorz.blogster.com
http://w2.clicdev.com/codewarriorz
http://codewarrior.blog-city.com/
http://oppose-bush.blogspot.com/
http://www.geocities.com/codewarrior_wins/
http://22blog.com/CodeWarrior/
http://codewarriorz.blogeasy.com/
http://oppose-bushy.blogspot.com/
http://codewarriorz.mvhosted.com/
http://codewarriorz.iuplog.com/
(and more...)

Erm...was this case bought by the RIAA? I thought it was being bought to court by MGM.

Just a note

Hey Code how ya doing?

I agree with ya ....were in trouble and theres no road back

Have you read up on the illumanati?

http://server.remc12.k12.mi.us/coldhs2/cults/new_page_7.htm

Hes part of the whole stinking group that goes way back.......Trust in God my good man! keep standing in the gap!
Satans time is short!

Should you make a case showing the movie industry it would read very simular. Record profits have been recorded on a definate upswing yet the movie industry is sueing folks the same way, claiming infringement is costing them big bucks. I beg to differ.

Not only is the quality of such infringement sub standard, but it in no way reproduces the theater experience. In fact it falls far short of said experience within the theater. However other factors have led me not to go to the theater. Among them are price gouging by the concession stand, having to wade through what is becoming increasingly standard practice of having to sit through 20 mintues or so of commercials on your dime, and the fact that the MPAA has now picked up the same mentality as the RIAA of sueing their customers. I for one will not support an industry that does so with my money. I have a choice where I spend that money and I will not spend it with those whose business practices I disagree with. I know good and well I am not the only one that sees it this way. That is why boycotts began in the first place.

yeah.. that is a kind of hang up..

It's not just MGM, it's the majority of the RIAA/MPAA who are jointly complaining to the Supreme Court in the MGM v Grokster thingy.

Wet1, those are the same reasons I no longer go to the theater. However, I would like to also add that the movies released by the MPAA almost always suck horribly.

i know what MPAA product that's worth watching.. (or at least a derivitive).

mystery science theater 3000.

a bunch of dodgy looking robots sit around and make fun of their movies =)

i really wish they had kept the show on the air.. there are SO MANY bad movies to make fun of for the past 5 years alone.

let's start with all those evil bug movies from scifi channel and work from there =)

Great letter George. Way to throw them for a loop. As much as the RIAA complains about p2p its downfall could mean financial loss for the RIAA and major record labels. What a conundrum. Good point about the independents being glad to take over p2p. Makes the RIAA and those greedy record labels think twice about wrecking p2p.

Movies are a different ballgame entirely anyhow. Most stuff being released it is easier to tell the difference between a DVD compressed image and a highly compressed image DiVX/XviD image no matter how good the encoders skills. Also most movies are cams or telesyncs and are bloody awful quality. Audio you can get away with a lot of the time even down to 128k unless you listen on high end kit. But the eye is actually more discerning. We use ours eyes more than our ears. We look at objects all day and can tell the difference between a realistic image of a person for instance and someone who has a pink tinge with streaks down their faces etc.

Anyhow I don't know what the fuss is since business is booming for the movie studios.

"Anyhow I don't know what the fuss is since business is booming for the movie studios."

I would suspect the fuss is this. They have future plans for using the internet as a sales tool and have no faith that their product will be able to compete with free d/ls. Since they will most likely want to use the same standards as what is on the p2p's. If they have control over those competive p2p's no one will have an alternative to turn to. Just as the majors are using the 128 bit standard as "near cd quality" so will the studios want to use the standards for the lowering of d/l file sizes. That won't work till the competion is gone.

"Between digital recording tools (ProTools, Cakewalk), mp3 compression and the Internet, we can reach virtually every corner of the globe with out music, free from the questionable contractural agreements demanded by major labels."

In this sentence, the word "out" should be "our"

Also, would the Supremes read this seeing it's focused on the RIAA and not MGM/MPAA??

wet1, you are so right about the commercials, but it's much worse than 20 minutes!! It's actually more like 50 minutes in total!! About 30 minutes from the posted showtime, theaters start running "In the 2wenty," plus other ads. I've even seen them advertizing the screen, as a place to run ads!! After this 30 minutes of ads has run, and you're ready to watch the movie, they start running the f'n trailers!! That runs another 20-30 minutes!!!! That's why a movie doesn't take just the length of the movie, you have to add in all the ad time too!! And think about this, WE PAY FOR A MOVIE, BUT ARE FORCED TO WATCH THEIR CRAP ADS!!! By the time the movie starts, you've eaten half your overpriced popcorn and soda!!

And once again wet1 is very informed. Future sales are what the MPAA is worried about. And actually it has already started. Last night I heard a company advertisement on talk radio pitching their downloadable movies. Go to: movielink.com to check it out. Now the MPAA will scream even louder saying downloading is hurting sales.

Again folks, although the title of the appeal before the court is "MGM v Grokster," it is really a joint effort by the MPAA and the RIAA, and the corportate content cartel. The Supremes know this.