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 shelly@palmer.net
Follow Shelly Palmer on Twitter: www.twitter.com/@shelly_palmer
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?
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.
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
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?
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).
to milk another 20 bucks out of old Who songs etc...delete it all off your hard drive, and
learn to play music yourself...
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!!!
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.
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.
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.
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?
C'mon geniuses, where's the grey matter?
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.
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.