Monday, March 26, 2012

The RIAA and the First Amendment

To begin, we should note what the RIAA is, and what it is not. The RIAA is the Recording Industry Asociation of America, and its members are

legitimate record companies with main offices in the United States that are engaged in the production and sale, under their own brand label, of recordings of performances for home use.

Individual recording artists cannot join RIAA. And there's one category of businesses that is specifically prohibited from joining:

Eligibility is not extended to companies that are currently engaged in, have within five years of application been engaged in, or are controlled by any person, firm or corporation which has within 5 years of application been engaged in the unauthorized creation, duplication, sale, importation, or other use of sound recordings in violation of state or federal law.

So if Megaupload starts a U.S. record label, it need not apply for RIAA membership.

But while RIAA is focused on the needs of the record labels, it expresses its care for the artists that work for those labels. Not to the extent of arguing for higher royalty rates, of course, but it clearly cares about the content of the artists' recordings.

The Recording Industry Association of America (RIAA) takes an uncompromising stand against censorship and for the First Amendment rights of all artists to create freely. From the nation’s capital to state capitals across the country, RIAA works to stop unconstitutional action against the people who make the music of our times--and those who enjoy it.

So what does the First Amendment mean to RIAA? According to this blog post:

RIAA has long been on the front lines in defense of the First Amendment, challenging government censorship and restrictions on the ability of artists to freely express themselves.

It is important to note what the First Amendment itself is, and what it isn't. The First Amendment only covers actions by Congress (and, by extension, to other branches of government). It (usually) does not extend to industry; if an employer fires an employee for calling his/her boss a jerk, the employee's First Amendment rights are not being violated.

This distinction is important when considering the RIAA's primary First Amendment battle - the PMRC hearings.

Ironically, the site linked above apparently does not believe in the Fair Use Doctrine, but suffice it to say that the RIAA, rather than agreeing to government regulation of the music industry, instead proposed that the music industry regulate itself - thus ensuring that artists can freely express themselves.

Of course, critics have asked whether the RIAA believes in the First Amendment for anyone else. For example, take a 2007 case in which the RIAA asked the University of Oregon to identify seven students that the RIAA accused of file-sharing. Daniel Solove wrote:

One issue involves students’ First Amendment rights. Although the Supreme Court has held that copyright infringement isn’t protected under the First Amendment, Harper & Row, Publs. Inc. v. Nation Enters., 471 U.S. 539 (1985), protected speech may be involved in some cases. According to the Court, copyright has “built-in First Amendment accommodations” via the fair use doctrine. Eldred v. Ashcroft, 537 U.S. 186 (2003). Copyright protection is thus compatible with the First Amendment because of the existence of fair use. What this means is that it is possible that in any given case, some of the uses of the music may be fair use, and that is protected by the First Amendment. Moreover, a person may have made statements online along with engaging in piracy. So, for example, an anonymous person might maintain a website where he posts music files for trading along with the statement that “the RIAA is a big bad bully.” That statement is protected speech, and identifying an anonymous speaker triggers heightened First Amendment standards for the subpoena.

The RIAA might argue something like this: “But the people whose identities we’re seeking are engaging in illegal piracy. They’re trading music files. There’s not a strong argument that any protected speech is involved.” Even if they’re right about this, it still doesn’t extinguish the First Amendment interests of the individuals suspected of piracy. Suppose, for example, a person anonymously posted a comment about another person that looked clearly defamatory. The fact that it might look like a slam-dunk case still doesn’t obviate the need to establish the heightened First Amendment standards for subpoenas. Copyright should be no different.

Score one for the First Amendment. Now if only we could ensure that Congress doesn't establish a religion AND doesn't prohibit the free exercise of religion...
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