If the RIAA Wins, You Really Lose!

Last week the RIAA won its lawsuit against Jamie Thomas, a Minnesota woman who put 24 songs in her Kazaa shared folder. The judgment, now being appealed, was for $222,000 ($9,250 per song). It's a big number, and because it's so big, it is excellent fodder for sensationalists on both sides of the issue.

The dust has settled a bit, so I thought it would be instructive to think about how the outcome of this case, known as Virgin v. Thomas (Renamed Capital v. Thomas after Virgin withdrew from the case) might affect the owners and consumers of digital content in the near future.

I am not a lawyer, but I have spoken to several lawyers and learned, interested parties this week about the nuts and bolts of this case. (You can hear my conversation with Ray Beckerman, Esq. here)

A couple of things really helped the RIAA win. Ms. Thomas's lawyers tried to claim IP spoofing but, sadly, she used the prefix of her email address as her Kazaa login. The argument was rejected out of hand. And, because she used her home computer, it was child's play to map the IP (Internet Protocol) address right to her. Ms. Thomas was clearly not a computer genius or a hacker. She was just an ordinary person doing what ordinary people tend to do online and she left a serious trail of electronic breadcrumbs.

Then, according to Mr. Beckerman, the jury was given incorrect instructions, which helped the RIAA's case. Jury Instruction 15 said, "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown."

This notion of "making available" is a position the RIAA has taken before, but it is not part of the existing copyright law. In fact, upon reading the text, you will notice that the notion simply isn't there. Let's have a look at the relevant part of the federal copyright law:

17 USC 106: The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

You really don't need to be a lawyer to read and understand that items one and three are pertinent to this case. Thomas put some songs in her "shared folder," if nobody downloaded them, how can she be responsible for "reproduction" or "distribution?"

I don't want to get bogged down in the interpretation of the law, you can find several excellent articles by googling the topic and dig as deeply as you like. The slightly ambiguous legal argument is centered around the concept of "publication." The US Supreme Court says that "publication" and "distribution" are the same thing. Other courts disagree. Like I said, I'm not a lawyer and if these legal distinctions are of interest to you, you should buy your favorite copyright barrister a beer or two and have at it.

For me, the story gets scary if "making available" becomes actionable or illegal. Here's why.

There is no legal difference between putting a song in my P2P Network shared folder or in my public FTP folder or in my "documents" folder. If the content is stored on a personal computer that is connected to the public Internet and I have not properly configured my security settings, the content in any directory (possibly my entire hard drive) might be "made available" to the public.

Lawyers will tell you that "intent" to violate the copyright law is not all that important to this kind of copyright case. My attorney calls it a "strict liability offense" which means that even if you make something available by accident, you are still liable.

Can you imagine how some companies might abuse the power of the copyright law to torture absolutely innocent computer illiterates? If this "making available" decision stands, not knowing how to configure your firewall or not setting a password for your home WiFi network might get you hit with a $222,000 penalty from the RIAA. This feels unfair in the extreme -- but it's the logical outcome if the RIAA ultimately prevails in this case.

I would urge you to get into this discussion. Intellectual property is a significant store of economic value, and content owners need and deserve the best protection we can give them. But we also need to be mindful of fact that the public Internet is an open network with hundreds of millions of computers attached to it. And, to state the obvious, the vast majority of them are not secure. This situation won't change unless you personally get involved. Please contact your elected officials and tell them where you stand on the issues. We elect them and they make (and change) our laws -- but they can only do that if they hear from you!

Shelly Palmer is Managing Director of Advanced Media Ventures Group LLC and the author of Television Disrupted: The Transition from Network to Networked TV (2006, Focal Press). Shelly is also President of the National Academy of Television Arts & Sciences, NY (the organization that bestows the coveted Emmy® Awards). He is the Vice-Chairman of the National Academy of Media Arts & Sciences an organization dedicated to education and leadership in the areas of technology, media and entertainment. Palmer also oversees the Advanced Media Technology Emmy® Awards which honors outstanding achievements in the science and technology of advanced media. You can read Shelly's blog here. Shelly can be reached at [e-mail]

Comments

[TekBoss]

The way the RIAA behaves, I think they need to be investifgated for RICO violations!

[muonkan]

Stop calling it stealing. When you steal a CD from a store you are depriving someone of something (both concrete entities). When you "share" you are not stealing. By the law is considered "Copyright Infringement" while by the millions of the so called "thieves" is considered just "sharing".
Artists get $2 for a CD you pay $20. If they sell their music on line for example for $5 they could make double of what they are making and music would be more accessible (as it should be by its very nature). Sharing is encouraging musicians to get free from the record industry. The common feeling is that most of the money should go to the artist which is doing the real job and not to a bunch of parasites. Furthermore "entertainment" should be accessible to any pocket and not only to an elite. Anybody is entitle to enjoy some kind of pleasure in this more and more dull existence. If you think otherwise doesn"t really matter because "right" and "wrong" do not really exist. Did you notice that nobody agreed on anything?

[BlackJAC]

Wrong, wrong, ever so wrong! Whether the song was purchased on a hardcopy CD or through a legit download service, you have merely obtained a licensed copy and implicitly entered into a licensing agreement which states you don't get to make copies of it.

[pkohan]

Shelly - I don't disagree that there might be further legal arguments available to the defendant upon appeal. What I do take objection to is how you seem to imply that consumers ought to be smarter in their evasive tactics to hide their file-sharing activity.

We all know the Internet has multitudes of ways of receiving free content, including working around copyright protections. Copyright protection should be strong, because I don't believe that just because music has proven to be highly accessible and functional online that theft of it should be treated any differently than shoplifting a CD from a record store or a restaurant goer performing a "ditch-and-dive."

We head down a slippery slope when we define some forms of theft as "more innocent" than other kinds of theft.

[BlackJAC]

Agreed. Entertainment is a luxury, not an absolute necessity of life; it's not like Jammie or her kids were going to die if she didn't have the songs. At the same time, the Napsterites are interfering with the artists' ability to support themselves in an industry with absolutely no job security. This whole thing reminds me of that SIMPSONS episode where Fat Tony is first introduced and he rationalizes his hijacking of a truckload of cigarettes to BarT.

[RumiSouth]

It's obvious that the RIAA pursued this very average computer user BECAUSE she was so very average. They're trying to terrorize average Americans into giving up their P2P networks.

Of course, what's so stupid about the RIAA's persecution of average users is the fact there is NO proven link between P2P downloading and loss of sales. In fact, the best studies show the opposite is true -- which explains why the demise of Napster was followed by a decrease in record sales.

http://www.osborneink.com

[GenericBlogger]

The RIAA suit against Jamie Thomas was unfair. I suspect her defense lawyer was weak. I don't see how $9,250 in damages per song were incurred unless the plaintiffs' lawyers raked their clients. I also wonder why the judge didn't throw out the decision. Maybe now that the case is more publicized a more capable lawyer will take her case pro bono to the appeals court. For the sake of Jamie Thomas and everyone else, this decision must be appealed because it will set a precedent. I don't know why RIAA didn't sue Kazaa instead of Jamie Thomas, a single mother of two children.

It irks me that many record companies and our government let pirates all around the world infringe on copyrights but the RIAA bullys and extorts a single mother of two children by driving her to bankruptcy or financial ruin.

Jamie Thomas was sued and ordered to pay the plaintiffs $222,000 for the following 24 songs.

Guns N Roses "Welcome to the Jungle" "November Rain"
Vanessa Williams "Save the Best for Last"
Janet Jackson "Let"s What Awhile"
Gloria Estefan "Here We Are," "Coming Out of the Heart" "Rhythm is Gonna Get You"
Goo Goo Dolls "Iris"
Journey "Faithfully" and "Don"t Stop Believing"
Sara McLachlan "Possession" "Building a Mystery"
Aerosmith "Cryin""
Linkin Park "One Step Closer"
Def Leppard "Pour Some Sugar on Me"
Reba McEntire "One Honest Heart"
Bryan Adams "Somebody"
No Doubt "Bathwater," "Hella Good" "Different People"
Sheryl Crow "Run Baby Run"
Richard Marx "Now and Forever"
Destiny"s Child "Bills, Bills, Bills"
Green Day "Basket Case"

The above list was obtained from http://www.nutsie.com/blog/articles/2007/10/05/the-jammie-thomas-riaa-lawsuit-playlist

After deducting legal expenses from $9,250 for each song, the copyright owners will hardly know the difference. If any of the musicians get any of the money after all the middle men get their cut, the money might pay for one month of utility bills in their mansions.

Who needs the money more, Aerosmith, Reba McEntire, Sheryl Crow or Jamie Thomas the single mother of two kids?

[BlackJAC]

Considering the music could've all been legally obtained for $25 from iTunes, why did she choose to do this thing in the first place?

[Leper]

If a convenience store puts beer and wine in their refridgerators but doesn't sell them (because no one buys them) then why should they have a liquor license?

[muonkan]

Internet is shifting the control on media contents from the big corporations to the web users. No matter if you download legally or not you have a tremendous amount of media out there ready to be consumed. I'm talking about news, articles, photos, books, movies, TV shows and whatever else you can render digitally. I use internet as my main entertainment device and furthermore with all those mobile gadgets you can bring the digital contents with you. With the world wide web you have a much broad choice of musician to choose as well as TV shows and the like.
The Record Industry is a shameful monopoly that until now has decided what music to promote and has set a very high price for it. This is going to change in favour of a much more competitive and consumer friendly business model. Adapt or die (the key of evolution).

[realitytrumpsbull]

I put RIAA in the same category as K-tel, trying
to milk another 20 bucks out of old Who songs etc...delete it all off your hard drive, and
learn to play music yourself...

[mediamarv]

Great business model the music companies have going: sue your customers.
On the day the judgment was handed down agains this woman, I received a free download card for Keith Urban at Starbucks... let's see, a free download.. quite a practice to encourage, huh!
The RIAA people are stuck in an old retail business model. They want people to puchase an overpriced CD (Congress Office of Budget Oversight opinion several years ago) with music you don't so they can keep their profit margins. It's a fact that artists do not get the bulk of the money made on CD sales.. touring is where they really make their money.
This also the organization that pays radio stations to play their records and get caught for it every couple years. Real integrity there.
My response is to not buy new cds retail, but instead buy used ones, add them to my itunes library and then resell them. The only time I buy new cds is at a concert where I can buy directly from the artist.
These RIAA nazis are on a losing course, despite the number of apologists suddenly posting here on this site.
They could have invented the itunes model but are too greedy (Jobs' words) and stuck in the past.
No pity from me and copy them cds all you want!!!

[sureofit]

No one seems to remember the great CD scam of the 80's and 90's. The record companies came out with these digital wonders that would last forever. Everyone seemed to get hooked and replaced vinyl and tape with the more expensive - but cheaper to make - CD. Turns out they were cranking out these discs before they mastered the technology. Geoff Emerick, the great recording engineer behind The Beatles and George Martin said the Beatles CD's sound like crap, for example. Now the evil industry wants us to pay for them to clean up their act by purchasing the "digitally remastered" versions.
This follows scams like milking fans into buying Greatest Hits collection, even though they own every album and single an artist made, just because they put a few new songs on the Greatest Hits collection - which of course, were also never "hits."
TruEngineHearing is right on the mark about copyright protection, it is another corporate scam that has really taken the public out of public domain.

[Hallucinocynic]

Sureofit, I'm in total agreement that current copyright laws must be rewritten to reflect an evolving marketplace. But as someone who works in and around the audio industry (I'm at an audio tradeshow as I write this) I will politely disagree with the idea that CDs (both pulse code modulation and digital stream formats) are inherently inferior to vinyl - or that they are the products of a scam. While you're right that reproduction technology lagged for more than a decade, we're finding that discs recorded as far back as the late 80s sound exceptional on contemporary CD players. There are many well-known recording engineers that champion digital recordings with the same enthusiasm they hold for analog (LP) projects. In addition, there are many more titles available digitally that are not to be found on vinyl. Digital recording and reproduction has a different - not superior or inferior - quality than analog; it is now simply a matter of taste. Technology tends to compound itself and it's only a matter of time before digitally recorded and reproduced music eclipses analog just as digitally recorded video will eclipse film production (see Red.com).

OTOH, the case against Jamie Thomas should be viewed as a harassment suit, intending to control a market with regulations that obviously extend beyond reasonable punitive measures. We can only hope that Ms. Thomas' case will be supported with resources that might ultimately force the RIAA, and pertinent regulatory agencies, to revisit the language of the law.

[sureofit]

Hallucinocynic, Thanks for all that info. I didn't say, however vinyl was better. I was bemoaning the fact that so many popular releases were done so poorly that the companies have released remastered copies - without any rebate for the old copies. A scam? Well, not exactly, but I think it's a shame I have to buy the Beatles catalog again when they clean it up. I agree, the great thing about CDs is that the vaults did get cleaned out and a lot of stuff long out of print surfaced again. Take care.

[DMSmith]

What this case boils down to is:

There has been a change in the way music is distributed and exchanged. The music industry refused to adapt. Now it wants to make someone else responsible for its failure to adapt. Business has always been about adapting to the marketplace. To find the marketplace at fault for their failure to adapt is sick and dangerous.

Apple's Music Store is an example of someone finding a way to adapt. The failure of these companies to respond to the market should not bankrupt and ruin their potential customers.

Compete effectively in the market and you won't need to sue your customers into oblivion - a bad strategy if ever there was one.

[BlackJAC]

At the same time, there have been complaints about iTunes from the hardcore fanboys. Case in point: when the Napsterites complained about how iTunes songs will only work on iPods (much like how you Nokia cellphones don't have a standardized headset jack), iTunes made the concession of offering the songs without the proprietary formatting and with improved sound quality for an extra thirty cents apiece...and the Napsterites complained anew about how the quality was barely noticeable. This just continues to prove that's the Napsterites are doing this because they despise the industry in general, probably out of jealousy over not being part of it.

[BlackJAC]

Ignorance of the law is no excuse, Mr. Palmer. The pirates do this because they erroneously believe they have a right to do so, regardless of whatever price or copy-protection concessions the industry makes to them. They even use the same logic as the terrorist ("I'll stop committing crimes against you if you give me exactly what I want") and the abortion clinic bomber ("It does not matter if my actions accomplish the same end result as the actions I am crusading against") to rationalize their abject refusal to obtain the material through perfectly legal channels at a price far lower than the jury-awarded judgment. Ultimately, they are talentless wannabes who resent those who were able to make it, even as one-trick ponies.

[TruEngineHearing]

Copyright protecion is now beyond all reason.

Our history and our culture is at stake when - as it is now, copyright ownership is the root of tremendous amounts of money pouring into the private sphere. No longer a reasonable period of time, copyright protection now stretches nearly to infinity.

Copyright protection will be extended every time it comes up for adjustment because the powers that be have a gigantic tool to make it so - Mickey Mouse. Whenever an average citizen is told that Disney could well lose ownership protection for the Mickey Mouse image, that citizen will side with Disney. Every time. And the elected official will cave; the vote will be taken, and we will lose another chunk of freedom.

I own copyrights, get royalties, enjoy spending them, and don't want to lose them.

See how scary it is?

[Democrab]

Someone just has to come up with encoded music that destroys hard drives when illegally opened (they could do it with dongles) then the stealing would stop.

C'mon geniuses, where's the grey matter?

[jhNY]

On the other hand, getting a free firewall from AOL is free. The woman in the suit knew damn well she was sharing her files with a legion of faceless others in her file-sharing network. She just figured she was part of such a vast crowd of fellow music takers that she'd never get singled out for liability. She was. Too bad.

Here's a valuable lesson: Want dsomething that's for sale? Pay for it, just like at Walmart.

If I'm a cattle rancher, and I keep my stock behind a barbed wire fence, rustling doesn't become legal with the advent of wire cutters. Even free wire cutters.

I used to have a good job in the music industry. I was in charge of a huge library of old recordings, which, once cd's were the standard medium, generated a decent profit for the company that owned them. I dug out unreleased songs and performances by many music immortals, such as Coltrane, Mingus, Ray Charles, etc. This music was then made available to the public, in some cases for the first time ever. Then the bottom dropped out. Nobody in the business wanted to keep a staff employed to care for and research old property after music started having no value among its former customers. Free is a hard price point to beat. I was let go, and nobody pays much for folks to do what I used to. Why should they? What's in it for them?

I'm sure a lot of people thought they were striking a blow for the artists against the record companies when they downloaded music illegally. And perhaps they did. But certainly, they hurt me too. Which to me at least, disqualifies illegal downloading as a victimless crime.

[TheQuestion]

It's not a victimless crime, it is a crime but these guys are going crazy with this. They are going to hurt everybody, the artists, the producers, the customers & themselfs.

There may be no way to put the toothpaste back in the tube. They limit creativity of the artists and historically they have taken advantage of artists. Now they are taking advantage of customers too. Some of the artists are striking out on thier own.

I still say make good music & people will buy it. But they've got to cut it out with this crap. This fine is insane. There have always been people that copy music at least as long as it has been posible. They were selling music then - they could sell music now. They are cutting thier own throats.

This sounds like sour grapes to me.