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RIAA RESPONDS POSITIVELY TO NEGATIVLAND
September 2, 1998 In an amazing and very surprising development in the whole Negativland/RIAA saga, the Recording Industry Association Of America has decided to issue revised guidelines to CD pressing plants (see letter below). These new guidelines will, for the first time, actually acknowledge the concept of Fair Use in copyright and acknowledge that a gray area does indeed exist in copyright law. This is a very positive and extraordinary concession on the part of the RIAA, though it remains to be seen as to how this will play itself out in the real world and how much this will actually help. These new guidelines are a very important step in the right direction, but they do not go far enough. It is still very clear to us that it should be the job of our courts, not CD pressing plants, to be acting as Fair Use gatekeepers. On the plus side, this is the first time EVER that an organization who represents the interests of the mainstream corporate music world (Sony, Time-Warner, Universal/Polygram, BMG, EMI, etc.) has actually acknowledged that a gray area exists in copyright law and that collage is a legitimate and valid form in music. The music industry has always wanted us to believe that these issues are black and white and that there are no exceptions in copyright. They have always wanted us to believe that ALL samples must be cleared and paid for. By acknowledging that this kind of work may indeed have a right to exist free of charge and free of charges, the statement from the RIAA opens up the huge can of worms that Negativland has been trying to open for the last seven years. This is good news for found sound musicians in all genres of music, for the good health of art and culture, and is a much needed step in our long march towards a general broadening of the Fair Use concept throughout our mass media culture. To all of you who wrote letters to the RIAA and wrote news stories about this - thank you! This would never have happened without your help. And thank you to Hilary Rosen, president of the RIAA, for deciding to be so responsive to all of our concerns. -NEGATIVLAND September 1, 1998 To: Fans of Negativland
From: Hilary Rosen Re: Sampling and CD Plant Guidelines The RIAA has received your e-mails on sampling and our CD Plant Guidelines -- some thoughtful and persuasive, others offensive and uninformed. The most frustrating e-mails are the ones that purport to be against piracy, but condemn the RIAA. Protecting artists and record companies against piracy is our mandate and we're proud of our work. Years of experience and talent inform the actions of our dedicated staff. Unfortunately, Negativland, and many of you, believe that our CD Plant Good Business Practices -- formalized earlier this year into specific guidelines for CD plants to recognize pirated product -- has had the unintended effect of prejudicing the group's ability to get their album pressed. As an organization that has worked tirelessly to protect freedom of expression, we are gravely concerned about this perception. Our objective in issuing the CD Plant Guidelines has been to stop piracy, not artistic expression. Accordingly, the RIAA has amended its CD Plant Guidelines in response to your concerns. (The full text is reprinted below.) In fairness, the issue is a great deal more complicated than first appears. Negativland claims that its work is protected by the "fair use" doctrine of copyright law, and asks us to draw a legal distinction between collage and whole-work piracy. Obviously, there is a huge distinction. But, clearly, not every recording that claims to be a collage is automatically protected as a "fair use." The dance and exercise music market, for instance, is filled with mixes that are nothing more than clips of popular recordings strung together with a heavy beat. Are these collages legitimate? The artists who created the original recordings don't think so. If our CD Plant Guidelines made a categorical exception for collages, it would potentially open the floodgate to all types of piratical mixes. The point is that the "fair use" doctrine is not clear cut, but is a set of principles subject more to nuance than fixed rules. The courts, and not the RIAA, have always been the judge in determining whether any particular sample is a "fair use." Attempting to carve out a "fair use" exemption from the CD Plant Guidelines is simply not workable and risks condoning blatant infringements of artists' rights. Moreover, under well-established copyright law, should a recording ultimately be determined by a court not to be protected as "fair use," the plant that pressed the discs may be held liable for pressing them. It's not surprising that CD plants would want to know what their exposure might be for copyright infringement. You can't blame a plant for taking such a sensible and reasonable business approach. In similar circumstances, some parties have agreed to apportion their risk by means of an indemnification provision, and such an approach may be appropriate where there is good-faith uncertainty about copyright exposure. The fact that CD plants are now more careful about what they press because of our enforcement efforts is good for music fans everywhere. Piracy hurts artists and fans alike. It feeds off the creative works of others and limits the investment dollars available for new music. Hopefully, this step will give bands like Negativland the fair shake they deserve with CD pressing plants. The RIAA has amended it's Anti-Piracy Good Business Practices for CD Mastering and Manufacturing Plants by adding the following language: "These guidelines are intended to address piracy. Some recordings presented for manufacture may contain -- as part of an artist's work --identifiable "samples" or small pieces of other artists' well-known songs. In some instances this sampling may qualify as "fair use" under copyright law, and in other instances it may constitute copyright infringement. There are no hard and fast rules in this area and judgments on both "fair use" and indemnification must be made on a case-by-case basis. RIAA, therefore, recommends that you decide how to handle such situations in consultation with your own attorneys." 
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