Friday, September 15, 2006

More CD Rental Mishegas

J. forwards a link to a Yiddish Hyde Park discussion of the subject.

A music industry insider writes:
here's the story about copying CDs
b"h most people don't copy and its enough that we right copyright or duplication is not permitted
Hundreds of thousands of dollars a year is lost in this business because people copy download etc because they say they bought it and they can do what they want with it
they even have some "rabonim" to rely on
in case u didn't know we ( the business) recently busted (stopped not arrested) a guy selling a hard drive full of songs about 5000 songs for $50
there are many others doing this we are working to stop this but we cant stop them if people continue to buy from them
so this rental agreement is basically a last resort to try to stop those people that still do it believing its ok lehalacha
your quote The standard "All rights reserved. Unauthorized duplication is a violation of applicable laws." works unfortunately incorrect
kesiva vechasima tova
Downloading/illegal distribution of music is wrong and needs to be addressed, but the music industry isn't served by schemes that make it look bad. This rental agreement is silly and is bad for our image. Does anyone honestly think that someone who is selling a hard drive full of copyrighted material will stop because of this rental agreement?

It also insults the vast majority of honest purchasers. Does the industry really want to do that? Even when we address issues of piracy, we have to do it in a way that isn’t condescending or insulting to our listeners’ intelligence. One recent CD release included a video message against illegal duplication that, although it may not been intentional, was widely viewed as condescending. Is this really the way to go?

Finally, I can't see a rationale for this scheme that doesn't either explicitly or implicitly say that Orthodox Jews as a community don't respect copyright law. IMO, this implication is a profound chillul Hashem.

The writer asserts that this is a "last resort" to get people who believe its "OK lehalacha" to stop doing this, but also mentions that there are "rabonim" who permit it. If these people's rabbis say its ok to distribute pirated music, how would a fake rental mitigate the problem? Aren't those rabbis likely to reject the rental on clear halachik grounds? Although those rabbis are wrong on the downloading, they'd be right with regard to this rental.

I'd be surprised if any posek would uphold a "rental" made without the "da'as" of the purchaser. In a letter to the industry posted on the above linked Hyde Park forum, Mendy Wald writes of an education campaign about this concept and asks the industry to support it financially.

Here’s Wald’s missive:

Dear Friend 

As we all know, the Jewish music business has been plagued with unauthorized copies. Many are copying & file 
swapping etc. Especially lately, with the advent of MP3, where its very easy to transfer many songs in split seconds 

Our livelihoods are at stake. I have been pondering how to tackle this for a very long time, & I'm sure everybody else 
was also thinking, how to stop this robbery of our livelihoods 

By the way, I just heard today, that there is a yungerman in Lakewood that transfers songs to IPOD for FREE. When 
asked why, he said that Reb Dovid Cohen says its muttar. Whoever can do something about that, should do so 
ASAP. Perhaps Reb Eli Cohen can help 

Also, I was asked many times by customers that called Mostly Music, if they are allowed to transfer songs to their 
friends IPODS. Many people really dont think that there is anything wrong with it. Thats why its so much more 
important to counteract on this issue 

I recently came across a Sefer by the title of Emek Hamishpat Volume 4 "Zechuyot Yotzrim" its a 500 page Sefer 
detailing all the Shitos concerning copying. Anyway, there is a Nusach in that Sefer, that, according to the Mechaber 
of that Sefer, Harav Yakov Avrohom Cohen, will prohibit copying according to ALL of the Rabbanim. [By the way, he 
will be in New York in the next couple of days. If you want to contact him for any reason, I will get you his cell 
number] I translated the nusach into English, so that we have it in both Loshon Hakodesh & English. Basically, its a 
agreement, not a sale 

A product can be rented with any restrictions that the renter [in this case, the artists, or copyright holders] wants the 
rental terms to be. Read the agreement & you will understand 

see this link 

I think that its very important to get as many artists as possible to be part of this "Rental only" situation. On the new 
CD's , we should have the Agreement in full on the inside, & on the back of the CD, a WARNING: This product is not 
for sale. You can only rent this product as per the rental terms. Ask your store for a copy, or online at 

On the older CD's, there should be a sticker with a similar message 

We should also put up posters in all the streets & in all of the Jewish papers, about this new approach. I think that it 
definitely will help to stop this problem. Even if it doesnt help all the way, it will nonetheless help in some way 

If you have any suggestions, I'll be glad to implement them. We are also going to need some money to get the 
message out. I am willing to help get this thing out to the street, but i also need your help. Let me know, how much 
you want to contribute. I've already spoken to some newspapers about getting some free space to advertise & they 

- Here is the language for the posters & ads - 

No More Sales 

The owners Jewish music & movies & computer programs are having a major problem. It is called file swapping or 
copying - that is when someone emails or copies a song or file & gives it to a friend. Hundreds of thousands of 
dollars are lost every year due to these unauthorized copies. We, the owners of these produts, make our parnassah 
from these CD's, tapes, programs etc. Our livelihood is suffering in a very distinct manner 

There are many who found Heteirim [Loopholes] to allow them to copy. First of all, according to most poskim copying 
is not allowed at all. Harav Moshe Feinstein, Minchas Yitzchok, Harav Eliyashuv, Harav Wozner, Harav Fishel 
Hershkowitz & many more [See the attached letters, see also the Sefer Emek 
Hamishpat Vol. 4-Zchuyot Yotzrim - 500 pages] have ruled that copying is assur [forbidden] 

Would you eat meat that according to most poskim is assur? Then, why would you want to play with Lo Sigzol? 

We spoke to Rabbinical authorities about the copying problem & they came up with a nusach [agreement] to 
which ALL Rabbinical authorities agree - it is a rental agreement- not a sale. This agreement allows the renter to 
specify exactly what type of usage will be allowed by the renters. 

This is going to be the ONLY way that we will distribute our music, movies & computer programs in the future
If the public is made aware of this rental concept, it might make some difference from a halachik perspective for buyers who are aware of it and accept the terms at the time of purchase, but if we're going to invest money and energy to educate people, why not educate instead about the illegality of downloading, the financial harm to the artists and producers, and the concept of supporting artists work by buying their music and attending their shows? Why invest all that effort to educate about a dubious rental concept instead?

There is a body of law related to music rights. There is a halachik concept that recognizes those rights. It's called "Dina D'malchusa." I'd suggest an education campaign around this topic instead. Of course, it would mean that the industry would have to acknowledge that the law and halacha do occasionally allow for copying/sharing music, something they’ve been misrepresenting. For example, it is clearly permissible for a purchaser to make a copy of a CD to play in their car, a right protected under US law, yet the industry likes to pretend that this is also impermissible. There are other scenarios as well that are likely permitted i.e. sharing mixtapes with friends.

(As a side benefit, encouraging the community to respect dina d’malchusa will have positive impact in other areas as well. It might even have a direct impact on the number of “heimishe” doing time in Otisville!)

Although the e-mailer above pegs the damage to the industry at "hundreds of thousands of dollars", it's unclear what the extent of the damage is. The only thing that's certain is that the J-music industry doesn't know either. To my knowledge, there has been no research into how widespread it is or what the losses to the JM industry are. Even the secular industry has no idea of their losses.

To take the example mentioned above, someone selling a hard drive with 5000 songs is clearly infringing. However, assuming an average of 10 songs per CD, are we really going to assert that all (any?) of the buyers would otherwise have purchased all 500 CD's? Clearly there is a loss of some sort of CD sales, but its hard to determine precisely what that damage is.

And, although this isn't a justification, there is sometimes a positive benefit to the industry when some people discover artists through downloading/file sharing and then go out and buy their recordings and attend their concerts. Many secular bands offer free downloads for precisely this reason. It helps drive sales.

In short, an education campaign is a good idea, but it needs to be based around the law, not legal fictions that won’t hold up in court or beit din.

Additionally, the industry needs to arrive at the same realization the secular music industry has reached. Music downloading is here to stay. People have iPods and other mp3 players and want to listen to Jewish music on them. The best solution is for the JM industry to make their music easily available online for legitimate download. If they provide a simple, reliable way for people to download the tracks they’d like for a reasonable fee, then most people will pay for them. See Apple’s iTunes for exhibit A.

There are a few “heimish” download options available, but judging by comments posted by users on the Yahoo JM board over the past year, they are not consistently reliable. From the artists’ perspective, there are also potential reliability issues with regard to “heimishe” accounting for downloaded music.

I’d suggest a paradigm shift. Instead of attempting to keep it all in-house with proprietary copy protection schemes, players, and the like, JM distributors should reach an agreement with iTunes to distribute their music. The benefits far outweigh the negatives of doing it themselves. Apple's iTunes store sells copy protected tracks for $.99 per song. At that price, I believe most would pay rather than download. The artists and producers would be protected by having an external third-party handling the accounting.

Finally, an astute reader points out that if Aderet chooses to pursue this rental idea as a matter of policy, it leaves a great marketing opportunity for Sameach. Here’s the marketing slogan. “Sameach: when you buy music from us; its yours!”