Pepsi/Apple’s/RIAA’s day of Superbowl Infamy — redux; lest we forget

 Lately, things have rather quietened down at the  RIAA, Recording Industry Association of America,  the near criminal organization which guards the interests of the major multinational conglomerates which comprise Big Music.

The great unwashed public seem to have completely forgotten how the copyright enforcement outfit  terrorized  thousands of innocent people and their families including 12-year-old children,  for  copyright crimes they  hadn’t committed, at least  the ‘violations’ were never upheld  in a court of law.

sherman3bsherman2For services rendered,  one of the  main instigators, millionaire lawyer Cary Sherman, was recently elevated to RIAA chairman and CEO at a mind-boggling salary .

And it’s bidniz  as usual for the corporate music industry,  as  it continues to flood hapless  consumers with its  brainless, cookie-cutter product, unhindered.

 “No matter the score, the Super Bowl always ends in heartbreak for at least one side,” says Post Media  under a headline which declares: Canadians search for Super Bowl ads more than anyone else on Earth

In a  fantasy world  where all things were equal,  the commercials  would generate stories harking back to the  disgraceful Apple/ Pepsi/Apple/RIAA Super Bowl commercial  in which 16 teenagers  were pilloried  in the name of copyright infringement and iTune sales.

Pepsi ads wink at music downloading

‘Wink’ at downloading? That was  the headline in a USA TODAY story pumping up Pepsi’s at the time iTunes music store promo.

 iTunes is, of course,  the  music player  which helped make the late Steve Jobs richer and famouser.

 “20  teenagers sued by the Recording Industry Association of America,  accusing them of unauthorized downloads, appeared in a Pepsi-Cola (PEP) ad that kicked off a two-month offer of up to 100 million downloads from Apple’s iTunes, said  The USA Today story here.

The  “sassy ad” [no kidding – it’s a direct quote]  which appeared during the Superbowl, is a  “wink at the download hot button”, wrote Theresa Howard in a piece which might have come straight from Pepsi’s promo department.

Pepsi hoped the promotion  would connect its flagship cola, as well as Sierra Mist and Diet Pepsi, with teens who’ve shown more affinity for bottled water, energy drinks and the Internet, she  said.

The ‘wink’ comes in because Annie Leith, 14, was suckered into appearing in the ad with other file sharers and  said she no longer makes unauthorized downloads.

With her older sister and younger brother, she downloaded 950 songs over three years, says the story, going on:

Wow! 950 songs!  Lesee,  what’s $3000 divided by  950?

 “They settled the lawsuit for $3,000, the average according to RIAA.  She’ll use some of her undisclosed ad fee to help pay for the settlement.”

‘Settled’ means they paid the RIAA $3,000 rather than getting hauled into a court hearing which might have cost  her and her family thousands of dollars more. And  by no stretch of the imagination  csan a ‘subpoena’ be called a ‘lawsuit’

In the meanwhile, Green Day cut a special version of the 1966 Bobby Fuller Four hit I Fought the Law for the ad, by BBDO, New York, says USA TODAY.

In the ad, Leith holds a Pepsi and proclaims: ‘We are still going to download music for free off the Internet.’ .

But It “was  all in good spirit”, Dave Burwick, chief marketeer, Pepsi, North America, was quoted as saying.

Pepsi even managed to wheel out the RIAA’s seldom-seen boss as he was then,Mitch Bainwol,

Hi …

Hi, I’m one of the kids who was prosecuted for downloading music free off of the Internet, says a teenager in an ad aired during the 2004 Super Bowl.

And “I’m here to announce in front of 100 million people that we’re still going to download music free off the Internet.”

She’s one of 16 naive US teenagers ‘persuaded’ to appear in the 45-second spot which was to have reprised Apple’s triumph of 1984 when, in the first Super Bowl ‘event’ ad, it launched the Mac.

However, the commercial will be remembered with shame.

The 16 teenagers were identified by the RIAA as alleged ‘copyright violators’ – ‘alleged’ because they never appeared before a judge. They, or their parents, settled out of court rather than risk much larger financial penalties had they gone head-to-head with the RIAA’s heavyweight legal team, and lost. The law had absolutely nothing to do with it

The ad has Pepsi ‘giving’ away 100 million iTunes songs as a promotion. Waving bottles of soda, the kids let everyone know that’s the kind of ‘legitimate’ music they’ll be downloading in the future.

 “I would like to see more of this, Jimmy Iovine, chairman of Interscope Geffen A&M, part of Universal Music Group, is quoted as saying in a National Post story.

 “We’re starting to see technology companies come on our side, now soft drink companies are coming on our side.”

Iovine’s reference to technology companies comes from his love-in with Hewlett-Packard when he appeared onstage at an HP dog-and-pony show to support the latter’s introduction of DRM  (Digital restrictions) systems.

In the meanwhile, Annie Leith, 14, whose parents gave the RIAA (Recording Industry Association of America) $3,000 to avoid a civil lawsuit, says she’ll use some of her undisclosed ad fee to help pay for that.

Michelle Maalouf is another teenager caught up in the RIAA’s stop-at-nothing sue ’em all campaign.

It was fun being in the commercial, but being sued wasn’t so great, Michelle, 13, says in this SFGate story here. “We didn’t know it was illegal. We really like music.”

All of the teenagers in the spot were sued by the recording industry’s powerful trade group [the RIAA], says the  item.

What’s interesting is that the SFGate story uses the word ‘sued’.

More on that later.

Falsely attributing criminal conduct

 but,  “It’s all in good spirit, said Dave Burwick, chief marketer, Pepsi, North America.

Lawyer Josh Wattles, however,  didn’t think that adequately described the commercial.

In fact, falsely attributing criminal conduct to someone is a slam-dunk libel in just about every state, he said.

 “There’s no calculus of relative harm to justify this kind of abusive, untruthful and cynical behavior towards minors no matter how complicit their misguided parents may have been in this deception.”

He’s the former acting general counsel of Paramount Pictures, a key architect of the MPAA’s (Motion Picture Association of America) anti-piracy programs in the transition to videocassette distribution, and the former senior executive in charge of Viacom’s music subsidiaries, The Famous Music Publishing Companies.

It started in 1993 when Big Music instructed the RIAA, its principal enforcer, to sue any file swapper it could identify for copyright violations.

Its lawyers used ‘instant subpoenas’ obtained under the Digital Millennium Copyright Act (DMCA) to pressure ISPs into handing over subscriber names and addresses – until the Verizon decision put a stop to it.

They’ve caused all kinds of misery to to some 40,000 innocent Americans, including young children, accusing them of being criminals and thieves.

Even worse, they got away with it. Victims included a dead grandmother, who didn’t even own a computer, a former Vietnam helicopter pilot,  man living in a homeless shelter, a disabled mother, a woman seriously ill from multiple sclerosis, an elderly home health aide who doesn’t know one end of a computer form another, among many others.

And all in the name of copyright profits as they use tax-payer-funded resources to further their hard-core commercial interests . They claim  shared files equal sales lost and that anyone infringing (violating) their copyrights is exactly the same as a thief who walks into a store And steals a CD off the shelf.

The assertion is obvious and arrant nonsense. And a Chicago student threatened to kill herself after being terrorised by Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA  as part of their sue ‘em all marketing campaign .

However, before being ordered to use due process like everyone else, the RIAA had been able to track down and identify close to 1,000 p2p file swappers, mostly teenagers and students, whom they threatened with civil, not criminal, court actions. Unless they settled.

The 16 teenaged Pepsi stars were among those swept up in the RIAA’s ‘investigations’.

By the sheer volume of ink the RIAA was able to generate in the lamescream media, it’d succeeded in making people believe anyone who downloads music, shares files, swaps music, or whatever you want to call it, is a criminal and thief.

That’s not true.

But the RIAA’s relentless, mind-numbing assertions have been sufficient to paint the picture and hence, the Pepsi/iTunes campaign could be catchily entitled I Fought the Law.

And,  “I was one of the kids prosecuted for downloading music”, says a teenager. She wasn’t, though, ‘prosecuted’ for anything.

She’d never been in a court. She was, rather, mouthing words from a script contrived by  advertising agency BBDO and approved by Pepsi and Apple.

However, to make the theme stand up, the message that these kids were ex-criminals who’d been rightfully ‘prosecuted’ had to be driven home hard and therefore, Busted, Charged, Incriminated, and Accused  overlays their images, and the carefully arranged lighting and their sullen looks purposefully suggest a gritty, urban, isolated feel – the kind of thing associated on TV with ‘lawbreakers’ and criminality.

To make the point even more strongly, Convicted file swappers star in Pepsi Super Bowl ad, read a ZDNet teaser headline leading to another site.

Convicted? When? By whom? And on what criminal charge?

And in During Breaks in Game, Satire and Silliness, New York Times business writer Stuart Elliott thought the stand-out (his words) Super Bowl commercial was a,  “cheeky spot”, introducing a promotion co-sponsored by the iTunes division of Apple Computer, that  “smartly teased” the recording industry for suing teenagers for illegal file sharing.

“Sixteen of the miscreants appeared in the commercial, identified with tongue-in-cheek labels like ‘Incriminated,’ ‘Accused and ‘Busted,’ as the soundtrack played ‘I Fought the Law (and the Law Won).’ The jest was topped at the end as these words appeared on screen: ‘Drink down Pepsi and download music at iTunes. Legally’.


A number of questions went begging, however.

  • Did the kids appearing in the commercials know exactly what the scripts would have them saying – specifically, that the word ‘prosecuted’ would be used?
  • Did they know there’d be suggestive overlays superimposed while their images flashed up?
  • Did the ‘actors’ or their parents or their guardians or lawyers see and OK the ads – and the various elements such as the overlays – in writing after they’d been edited and approved for airing by Pepsi and Apple?
  • Were they given the option of backing out if they didn’t like the look of the final cut, if they indeed saw it?
  • Was the agreement between BBDO and the teenagers carefully crafted and honestly written to protect them? Or was it a standard ‘name and likeness for a fee’ boilerplate or worse, a cold and cynical contract made by a calculating team of highly paid lawyers and account executives with 16 naive and easily impressed youngsters to insulate Pepsi, iTunes and CBS from possible libel suits filed by the teenagers after the ad was cut?

I still can’t get over the fact that these fresh faced teenagers were being attacked by companies just to preserve a business model in need of freshening up itself, said Wattles. 

“I don’t want my kids treated that way by business and I don’t want other people’s kids treated that way.

And on the choice of language, Prosecutions are usually understood to be actions by the state to enforce criminal laws, he says.

Prosecutions aren’t generally understood to mean civil lawsuits. The word ‘sued’ would be appropriate and accurate in this context.

The ad falsely pumped up the music industry’s enforcement effort, and its suggestive criminalization of the kids’ behavior building up to the tag line ‘we’re still gonna download music for free off the Internet – and there’s not a thing anyone can do about it,’ reinforces the ad’s presumption that their behavior had been criminal.

What’s the problem?

But, What’s the problem? – asks a nameless, faceless RIAA spokesperson.

We’re only involved as good corporate citizens. We gave Pepsi and Apple and BBDO the kids’ names to help them. The kids, that is. This is our way of working with wholesome American institutions to save the Children of America from having us prosecute them for stealing music.

What can be wrong with that?

And Gosh! Pepsi is giving the music away anyhow!

‘Giving’ is probably the wrong word, though.

Actually, Pepsi was marketing the tunes on behalf of the RIAA’s owners, the major record labels, who sold the songs to Apple in the first place. People got the songs by buying Pepsi and looking under the bottle tops, some of which have a code which can be redeemed to ‘buy’ a song from iTunes.

in MP3newswire,  I wrote,  “The RIAA will earn $0.75 from Pepsi for each of the 100 million downloads. And that’s $75 million, in pure profit for the record industry, which is why RIAA president Mitch Bainwol was happy to go along with the joke.”

Apple won, of course, because now they’d more than quadrupled their total sales of downloads from 30 million to 130 million tunes – all using the AAC format that only the iPod will play, thus pushing iPod sales.

It’s bad enough that the RIAA targeted kids for their lawsuits but, it’s worse to criminalize their behavior on national television just for the sake of a provocation, or to sell soft drinks and iTunes downloads, Wattles said.

Moreover, he went on, Congress, in making the copyright laws,  “never, to my knowledge, considered the circumstance that kids would be engaged in mass infringements, however technical.  “Certainly, imposing extraordinarily high statutory civil damages on an ill-behaved and/or ill-informed teenager seems out of step with the result a legislature would have openly picked.”

And there’s a big legal question mark over whether or not they  could be tried as juveniles for criminal copyright infringement.

Wattles – who was at Berkeley in 1969 – pointed out he was speaking as an individual concerned over the excessive and intrusive behavior of an industry to which he’s contributed, and in which he still has a stake.

 “I don’t want to see it [the entertainment industry] behave in this way and I believe I’m speaking out responsibly to help it correct itself”, he said.

No matter how old they are and even if their parents or a court signed off for them, they could p[not] possibly sustain an action for libel if they weren’t completely aware of what this ad was going to look like and suggest about them.

 “These kids weren’t criminally prosecuted, but they’ll get to live with this characterization for the rest of their lives – even after they grow up and move away from their childish false bravura performances.”

Jon Newton — myblogdammit

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