The recording industry's victory Thursday in a trial involving a Minnesota woman accused of illegal file-sharing is already turning at least a few heads on Capitol Hill.
We caught up by phone on Friday afternoon with Rep. Rick Boucher, a Virginia Democrat well known for his strongly held views on fair use and the need to defang stringent anti-copying laws like the Digital Millennium Copyright Act. (He's one of the Recording Industry Association of America's most ardent foes on copyright legislation.)
We wanted to know Boucher's answer to the obvious question: Will Congress lessen penalties for copyright infringement after Thursday's whopping verdict? We also contacted a dozen congressional offices--from both parties and chambers--whose members frequently work on intellectual property issues. Some never responded, and others said their bosses were traveling or otherwise unavailable for comment.
Here are a few excerpts from my conversation with him a few minutes ago:
On pirating copyright files and the Minnesota case: I have no sympathy for people who engage in illegal peer-to-peer file sharing. These damages are obviously excessive and are way out of line as compared to the kinds of settlements that have been entered into in similar kinds of cases in the us and in other countries.
Even though they have now a very large damage award entered against a person who the jury found was engaged in file sharing, that's not really going to diminish the amount of file sharing that occurs. As a matter of fact, I'm not sure that there's anything the industry could do at this point that is going to eliminate it.
On whether he thinks Congress should do something to rein in damage awards: No, I really don't. I think that's trying to pick around the edges of a problem that frankly doesn't need the Congress' attention.
On what Congress could do instead: What I think we ought to do is reform the Section 115 license [under U.S. copyright law]. That would help a lot in making available more music for lawful downloads.
There are significant problems today for a Webcaster or for an entity that is selling music online to clear the copyright interests of all of the copyright holders associated with a particular musical work, and among those difficulties to clear are those under the Section 115 license, and those happen to be the music publisher and songwriter interests. We have been talking with the music publishers and representatives of songwriters about a way that we can more effectively clear those interests by having, for example, an escrow arrangement at the copyright office for those musical works with regard to whom the songwriter and publisher interest is unknown, where you don't know who wrote the song or who holds the publishing right.
For a lot of the material, that happens to be the situation, and that material today just does not get used and cannot be put up for lawful download because the risk for copyright infringement and lawful damages is too great to do that.
The labels actually tried to be cute several years ago when we were on the verge of passing a compromise on this subject...by attaching some of their pet issues to that legislation. They essentially brought it down because they didn't have the votes to win on their issues but they did have votes to block the bill going forward. It would've been fundamentally in the interest of labels, (and would have) meant more of their music would be available for lawful sale across the Internet.
That would be a step in the right direction, but it doesn't take us far enough. I ultimately think the industry is going to need to come to a realization that it needs a blanket license.
On what the recording industry should do instead of suing people: I really think the time has come for the recording industry to consider some form of blanket license arrangement that would apply fairly broadly across our society.
There are early examples that are very successful for voluntary blanket license arrangements, and what I had in mind are the contracts that the record labels have entered into with a number of universities in this country. Through those contracts, universities pay a lump sum on an annual basis to the record label, and in return for that lump sum payment, the students at that university are able to download and file share among themselves as much music as they want.
Given that success and that some amount of illegal file sharing is destined to continue, i think the time has come for the industry to explore some broader applications of that blanket license arrangement. I'm not going to suggest how that can be expanded.
Contracts could be entered into with the major ISPs. A blanket arrangement could be entered into with Verizon for example with its DSL and FIOS services, or with AT&T for its broadband services. It could be entered into with even smaller ISPs, whereby for a blanket sum, a lump sum payment, the users of those Internet services would be able to download music from those labels, or from other sites that offer the music.
I'm not saying we're going to introduce a bill and force feed this to the industry. The industry needs to consider whether or not it's in its interest, I frankly think it might be. If the industry comes to Congress with suggestions for ways to help implement it, we'll do that.