Why the RIAA should be subject to Judicial Review

Nate Anderson of Ars Technica published a piece on March 11 entitled, “RIAA tells Ars: We’re not hypocrites“. Essentially it boils down to this: The RIAA’s collective spin-off — in some ways similar to SOCAN here — is called SoundExchange, and it has a licensing scheme that can be a little bit dizzying, mainly because it has different upstream and downstream licensing models. What I mean, which Nate Anderson conveys quite clearly, in fact, is that they make sure that they collect more money than they pay out. They have a “whichever is greater” model for revenue, and a “fluctuating with the market” model for paying out royalties.

The RIAA is answerable, according to the author, to the Copyright Royalty Board (CRB). Here, our collective bodies, SOCAN and the CPCC, are answerable to the Copyright Board. But there is no mention in the article of the CRB being in turn subject to judicial review. Here in Canada, the Courts do not seem to have any qualms about hearing qualms about the Copyright Board, or its subject collective bodies.

Part VIII of the Copyright Act (R.S.C. 1985, C-42), which includes ss. 79-88, deals with private copying. Why? Because in Canada we recognize that it’s going to happen and we can’t stop it, so we might as well formulate a way to return some coin to the artists. It is flawed, no doubt, but it does have its heart in the right place which means it can be improved. What does this have to do with royalties? It is a scheme that is answerable to the Courts, and has been tested there.

Rather than go into SOCAN v. CAIP and all the subsequent cases dealing with levies and tariffs and their collection, I will quote from a recent case in which the Federal Court of Appeal, by the pen of Sharlow J.A., told the Copyright Board what its place is and put it there:

Apple Canada Inc. v. Canadian Private Copying Collective, 2008 FCA 9 @ para. 3:

The applicants, supported by the intervener, have submitted a number of different legal arguments in support of their challenge to the decision of the Copyright Board, but in my view it is necessary to consider only the principle established in Canadian Private Copying Collective v. Canadian Storage Media Alliance (C.A.), [2005] 2 F.C.R. 654, which is dispositive. I read that case as authority for the proposition that the Copyright Board has no legal authority to certify a tariff on digital audio recorders or on the memory permanently embedded in digital audio recorders. That proposition is binding on the Copyright Board: Canada v. Hollinger Inc. (C.A.), [2000] 1 F.C. 227, at paragraph 30.

The RIAA is being hypocritical, but that’s nothing new, nor is it unique among such industry collectives, associations, and societies. What seems to be missing are the headlines where the U.S. District and Appeal Courts take the paddle to the heinies of the RIAA and the CRB, and teach them a little humility before the law. Perhaps the most overriding theme of the RIAA’s frivolous lawsuit crusade has been its belief that it is so far above the law so as to be able to wield the law as its own private arsenal of birdshot and cannonballs.