as seen on phillyBurbs.com

Stop or I'll sue
Here's why the record industry is now more powerful than police.

I used to think music was about freedom. Especially Rock 'n roll.

Not anymore.

Now you can be fined up to $150,000 for sharing a single song with a friend or a stranger. Record companies and politicians have seen to it.

And in a strange twist of fate, the American Civil Liberties Union has joined forces with the largest baby Bell, Verizon, in an effort to prevent the Recording Industry Association of America (RIAA) from gaining more legal power than your local police.

Under the fourth amendment to Constitution, police must show probable cause that a crime has been committed before they can get a judge's permission to search your home for evidence, or subpoena you to appear in court.

But under the federal Digital Millenium Copyright Act, all the RIAA has to do is file paperwork with a court clerk to get a subpoena if it suspects you of downloading a song from the Internet or sharing music in a peer-to-peer network such as Kazaa, WinMX or Grokster.

Anyone found in violation of the act could faces a lawsuit from the RIAA seeking  $750 to $150,000 per song, The Associated Press has reported.

On June 26, the association began "gathering evidence and preparing lawsuits against individual computer users who are illegally offering to 'share' substantial amounts of copyrighted music over peer-to-peer networks," according to a press release on its Web site.

So just what does the RIAA mean by "substantial"? 

"We are not putting a number on what substantial is," said Amy Weiss, senior vice president of communications. "If you're sharing one copyrighted file that's one too many.

"... (Music) sales are down 26 percent in recent years, due in large part to piracy," Weiss said. "We've laid off thousands and thousands of people over the years. The industry is suffering. It's time we had to act. Department stores prosecute shoplifters. This is no different than walking into a record store and stealing a CD."

So far, the RIAA has asked for 850 subpoenas in U.S. District Court in Washington, D.C., including one against a Verizon online user who allegedly downloaded 600 songs in a day and made them available to others via the Internet.

RIAA's subpoena asks Verizon to identify that anonymous user. Verizon countered that it wasn't responsible for what its users did. The ACLU jumped to the phone company's aid, arguing, "there should be judicial process. You should have to allege facts that there's a least some semblance of a case there," said Christopher A. Hansen, an ACLU senior staff counsel active in the case.

"Federal law says anyone who claims a copyright infringement can file and the court clerk is required to issue a subpoena," Hansen said. "No judge ever sees it and you are not notified that they are seeking information nor are you given a chance to contest it. It's a totally mechanical device."

U.S. District Judge John D. Bates found the RIAA was within its rights under the copyright act to seek the subpoena and ordered Verizon to turn over the name. Verizon has complied, but it and the ACLU are appealing Bates' decision. The appeal is expected to be heard in the next three months, Hansen said.

MONEY + LOBBYING = POWER

How did we get to this point?

Think of the RIAA as the nation's largest trade group for record producers and manufacturers. They pay $44 million in dues annually to belong to it, according to tax records.

And because the RIAA's mission is to "work for the benefit of the sound music recording industry," the RIAA has been granted not-for-profit status by the Internal Revenue Service. That means it doesn't have to pay taxes on any of that money.

It also means the association's annual tax return is a matter of public record, and phillyBurbs.com was able to obtain a copy of its most recent filing under the federal Freedom of Information Act.

The RIAA's 2001 tax return, which cover its activities from April 1, 2001 to March 31, 2002, shows:

• While the association made $721,000 by handing out gold and platinum albums to top selling recording artists, it made $9.5 million by prosecuting music pirates and recovering lost profits.
  
  All of that $9.5 million was handed over to the record labels affected by the pirates, according to Deborah Moore, the RIAA's controller.
  
  "We're pursuing the rights of the labels, not the artists," Moore said. "They (the artists) are paid based on what their deal with the company is."
  
  
• The exact amount it cost the RIAA to recover that money was left blank and Weiss did not respond to questions about it. Moore said federal tax rules did not require that much detail because donations to the RIAA are not tax deductible.
  
  However, the tax return says RIAA paid $2.7 million to IFPI, an international antipiracy group; $1.2 million for "investigative support," $546,000 for "evidence collection/storage," $539,000 for "online monitoring," $61,000 for the "Secure Digital Music Initiative" and $47,000 for "antipiracy projects."
  
  
• The association's biggest single expense, by far, was for legal fees - $16.7 million.
  
  
• The association also spent $1.7 million for "governmental relations projects," $1.3 million in "federal legislative support," and $480,000 in "state legislative support."

The association also has a separate political action committee (PAC), which doled out more than $630,000 to federal candidates last year, federal election records show. The PAC also pumped another $535,000 of "soft money" into the coffers of the Republican and Democratic parties, up from $392,000 it gave to both parties in 2001.

With all that money came influence over the copyright act and the political will to enforce it.

WHO'S FLYING JOLLY ROGER?

Just as the English used Capt. Henry Morgan to clear the Spanish Main of Buccaneers, the RIAA is using the new law to go after what it calls pirates.

Just who the pirates are is unclear.

According to Weiss, the RIAA is only interested in pursuing "the egregious uploaders first, not downloaders, people who are sharing music."

However, she quickly added, "that doesn't preclude anything in the future. ... This is a very long-term campaign. We're not expect traffic to turn off over night."

It is legal for consumers to copy a CD they already own for use in their car. But once they post its songs on the Internet or make them available for someone else to download, they cross the line, Weiss said. "You're offering up a song for millions of users to take. That's a big difference."

Not even the ACLU has challenged that.

"There's a role for copyright and we understand the RIAA's need to enforce it," Hansen said. "But I certainly have problems with the way that they are trying to uncover internet identities."

WHAT CAN YOU DO?

Besides standing on the sidelines and rooting for Verizon to win this legal fight, here are my suggestions on what you can do:

• The Internet has largely supplanted radio as the primary means to listen to new music, in no small part due to the recording industry's continued manipulation of station playlists with an estimated $100 million in annual payola.
  
  Weiss insists that the RIAA is "against pay for play. You shouldn't have to pay to have a song," but declined comment when asked if it had any power to enforce that position with its members.
  
  The practice of paying radio stations to play songs in heavy rotation was supposed to have been killed off in the '50s and '60, but has continued using middlemen. That not only marks a violation of the spirit of the Federal Communications Act (punishable by a fine of at least $10,000 and a prison sentence of up to a year for each instance) but could also be construed as a criminal conspiracy (up to five years in prison) and possibly even racketeering ($25,000 fine and 20 years each instance), given its long-term nature.
  
  I suggest that anyone who even suspects a radio station has been paid off to play some crappy song just to boost record sales, without the DJ spelling out the arrangement, should file a complaint with the FCC immediately. (The FCC wants you to do its job by providing a tape of the broadcast and  written proof of payola. But if inundated with similar complaints, the FCC will be forced to act. Just ask Howard Stern.) For the mailing address, click here.
  
  
• Challenge the RIAA's not-for-profit (501(c)6) status with the IRS. Anyone who is effected by an institution, in this case anybody who has ever bought a CD, can argue that the association has moved beyond its tax-exempt mission. To find out how, click here.
  
  
• Anyone who receives a subpoena or a lawsuit from the RIAA should appeal. Your online identity should be protected from interception and subpoenas just like phone conversations. It should not be fair game for a record company executive to exploit.

Dave Ralis' Pave The Grass column appears on Mondays. You can send him an e-mail at  or call him at 215-269-5051.