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.