Why the RIAA should have won (though the fine was too high)
The Recording Industry Association of America probably should have won its lawsuit against a Minnesota woman accused of sharing songs through the Kazaa file-sharing network.
There was enough evidence linking Jammie Thomas' computer to an IP address that was offering a slew of copyrighted songs to other Kazaa users. A jury in Minnesota, hardly the record labels' home turf, unanimously thought so too.
The problem isn't the verdict. It's the penalty.
After decades of special-interest lobbying by large holders of intellectual property rights, U.S. copyright law has spiraled out of control. It's been transformed from limited protections of authors' rights for 14 years to a juggernaut with criminal enforcement, sky-high penalties, and up to 120 years of legal protection.
Copyright no longer abides by the fundamental principle of law, which is that the damages awarded should be related to any harm committed. No wonder Jammie Thomas got slapped with a $222,000 bill. (And I wouldn't be surprised to see attorney's fees add another $100,000 on top of it.)
"It doesn't strike a regular person that by passing a CD around the neighborhood, they should have their house taken away," says Lew Rockwell, president of the free-market Mises Institute in Auburn, Alabama. "And by electronic means it shouldn't be any different."
Copyright law is, as Berkeley law professor Pam Samuelson points out, way too verbose; it's now swollen to an unbelievable 200 pages long. It's complex, incomprehensible, designed to favor large copyright holders over defendants, and thoroughly out of touch with reality.
This should be no surprise. The technical term for this is "rent-seeking," meaning special-interest coalitions who pressure the government to transfer wealth to them. The general public (reasonably) can't keep track of the minutiae of proposals to expand copyright law, but RIAA lobbyists can devote 100 percent of their time to the job. What happens is that copyright law continues to clamp down on Americans, inexorably, like a ratchet.
Consider what aggressive rent-seeking has achieved for the music and movie industries--and some certain large software companies--in the last decade alone: The Sonny Bono Copyright Term Extension Act. The Digital Millennium Copyright Act. The Family Entertainment and Copyright Act (more P2P penalties). The No Electronic Theft Act (file-swapping criminalized).
So what should Jammie Thomas have been required to pay? She's accused of sharing 24 songs, or two CDs worth. We don't know how many people downloaded those songs, but if 10 people did, that's perhaps $250 in value. If 100 people did, that's $2,500, and so on.
Walter Block, an economics professor at Loyola University, is no fan of copyright law at all. (He'd abolish it.) But his suggested penalties for physical larceny are worth taking into account. "My view is two teeth for a tooth, plus expenses, plus cost of capturing, plus a scaring penalty" that would provide additional deterrence and avoid allowing the wealthy to flout the law, he said on Friday. In other words, let the punishment fit the crime.
Under the judge's interpretation of copyright law, unfortunately, the RIAA wasn't required to prove how many songs were downloaded. Maybe nobody did; maybe thousands of people did. All the RIAA needed to do is prove Thomas made them "available" through Kazaa.
Although we can't make any reasonable estimate, we can nevertheless say it's unlikely that Thomas would be required to pay $222,000 plus attorneys fees if copyright law were reasonable, fair, and just. But it is now none of those, so she is.
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan.
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Did they win the war?
Up to this point, it wasn't clear if the RIAA would ever be able to prove it's case to a jury. This outcome changes everything!
This will put a "dent" in file sharing. Maybe not a huge dent, but at this very moment thousands of people are "cleaning" their hard drives, and thousands of parents are warning their children, "You better not do it!"
expansion of Copyright to the degree it is, is the nature of the
law itself. The RIAA did not have to prove anyone ever
downloaded a song only that it was available. So, could that be
expanded to mean someone who has books in a public room
with a copier could be charged because it was possible
someone COULD copy the book. I know this only applies to
Digital content for now but one never knows what a judge will
do to expand the law if given an opportunity. The law as
defined in ridiculous and its application by the RIAA is next to
criminal in itself.
And this is really the reason we can not idly watch as RIAA rips our world apart. If they have their way, it will be illegal for us to rip a cd for storage on our own MP3 player.
We've all been sold on this new technology, but it's turning out that if we use the equipment to do what the salesmen have told us the stuff will do, we have broken a law!
Then consider this. If it is illegal to copy and distribute copyrighted works, is it also illegal to be in possession of these new age bootlegs? Are we going to need to save records of how we acquired each and every mp3 on out iPods?
OMG, this really sucks!
someone could have a rip of CDs they own, and the file sharing program will scan your harddrive and make these available for sharing, and these programs auto start when the computer starts, most computer users do not have that much technical knowledge to even know that this had happened.
what if you have an open share on your harddrive and no file sharing programs installed? Are you still going to be fined because of lack of computer knowledge?
The professor who thinks copyright law should be abolished should quit his job and write a book about it --- once copyright is the only thing putting food on his table see what happens.
If you want to listen to music, watch movies, use software --- don't steal it. Nobody *has* to make it for you to steal.
By your own example, she should have only paid $2,400. Are you by chance in corporate accounting?
As author:
* Defending the Undefendable (1976; translated into Chinese, French, Italian, Portuguese, and Romanian languages) ISBN 0-930073-05-3
* A Response to the Framework Document for Amending the Combines Investigation Act (1982)
* Focus on Economics and the Canadian Bishops (1983)
* Focus on Employment Equity: A Critique of the Abella Royal Commission on Equality in Employment (with Michael A. Walker; 1985)
* The U.S. Bishops and Their Critics: An Economic and Ethical Perspective (1986)
* Lexicon of Economic Thought (with Michael A. Walker; 1988)
* Economic Freedom of the World, 1975-1995 (with James Gwartney, Robert Lawson; 1996)
* The Privatization of Roads and Highways: Human and Economic Factors (2006)
As editor:
* Zoning: Its Costs and Relevance for the 1980s (Ed.; 1980)
* Rent Control: Myths & Realities (Ed. with Edgar Olsen; 1981)
* Discrimination, Affirmative Action and Equal Opportunity (Ed. with Michael A. Walker; 1982)
* Taxation: An International Perspective (Ed. with Michael A. Walker; 1984)
* Economics and the Environment: A Reconciliation (Ed.; 1985; translated into Portuguese 1992) ISBN 0-88975-067-X
* Morality of the Market: Religious and Economic Perspectives (Ed. with Geoffrey Brennan, Kenneth Elzinga; 1985)
* Theology, Third World Development and Economic Justice (Ed. with Donald Shaw; 1985)
* Reaction: The New Combines Investigation Act (Ed.; 1986)
* Religion, Economics & Social Thought (Ed. with Irving Hexham; 1986)
* Man, Economy and Liberty: Essays in Honor of Murray N. Rothbard (Ed. with Lew Rockwell; 1988)
* Breaking the Shackles; the Economics of Deregulation: A Comparison of U.S. and Canadian Experience (Ed. with George Lermer; 1991)
* Economic Freedom: Toward a Theory of Measurement (Ed.; 1991)
* Libertarian Autobiographies (Ed.; forthcoming)
1. Another poster already listed the books the good professor has written, so I don't need to.
2. You're right that the defendant might have shared 1700 songs. But that figure wasn't proven in a court of law (was the evidence sound?) so I'm going with the 24-song figure.
3. You're right that the song can continue to be distributed indefinitely, but so can a ripped CD. Each CD is a digital master copy. Same with unprotected iTunes purchases, Emusic, etc. So that's an interesting but not necessarily telling point.
If you had a copy of my book on your desk, and someone came along and borrowed it from you, then went and made 10,000 copies of it, should I be able to hold you liable for each illegitimate copy that was made without your direct involvement?
And just because there was already an existing, less convenient, way to appropriate intellectual property doesn't make an easier way right.
If I borrow your book, walk into a print shop, hand it to the guy behind the counter, and say "do what you want" there's no doubt that you're going to be held liable for anything he does, and that's exactly what you're doing by setting up your machine to share copyrighted content.
Yes the downloaders are in the wrong too, but so is the person making it possible. Just like a "fence" for stolen goods.
I'm not a fan of record labels, it's my assumption that they will be disintermediated soon. But keep in mind that it's not just the headlining artist and label whose income you are stealing. The labels are generally paying for the rest of the little guys, the studio musicians, the recording studio, all the guys listed in fine print and more.
When I read all the postings in these threads, they pretty much all just smell of people who don't want to pay their fair share, trying all kind of weasel-y rationalizations for why they shouldn't have to.
Someday maybe you'll get a job, and your pay will depend on people paying for your hard work. And if they steal it, you won't be paid. Then we'll see.
1 song at $1.00 per download = $1.00
1700 songs at $1.00 per download = $1700.00
Now aint that there a little sumpin, sumpin special....
I hope I have helped you and the AAIR..I know its crooked and basacwards but so is the RIAA.
I would like to ask everyone to stop buying music.
Tell everyone you know to know longer buy any music.
I would like to thank Radio Head for their great move.Everyone Please, Go buy the new Radio Head CD.
Outa here like a rocket!!!!!
zooooom>>>>>>>>>>>>>>>>>>>>>>>
1 song at $1.00 per download = $1.00
1700 songs at $1.00 per download = $1700.00
Now aint that there a little sumpin, sumpin special....
I hope I have helped you and the AAIR..I know its crooked and basacwards but so is the RIAA.
I would like to ask everyone to stop buying music.
Tell everyone you know to know longer buy any music.
I would like to thank Radio Head for their great move.Everyone Please, Go buy the new Radio Head CD.
Outa here like a rocket!!!!!
zooooom>>>>>>>>>>>>>>>>>>>>>>>
As you can see, any way you slice it the artist is going to get screwed. Of course, I should mention also that the only way the artist would receive any of this legal income at all is if it is specifically covered in their contract--NOT a standard provision by any means.
I'm almost proud of the jerks, actually. They've been screwing the people who make the music for decades. Now their screwing the people who buy it, too. If you've got stock in the big labels, I urge you to SELL. Like, now.
And what does that mean: "...if it is specifically covered in their contract--NOT a standard provision by any means"? You're telling me most contracts don't allow for royalties? I find that pretty hard to believe, does anybody have any backup on that claim?
i couldn't have said it better. i've been making the same argument since the start of all this. it's simply a demonstration that what goes around comes around. the jerks that run the entertainment industry have gotten rich off of too many less than business savvy artists over the years. they've legally absconded with the works and dollar value of these people then shoved them aside when they had no use for them anymore.
i hope internet music distribution eventually puts the thieving record companies out of business completely. then they won't be able to foist musical turds like ashley simpson and britney spears on us.
I was particularly dismayed by the defense saying that there were many exploit techniques that could have made it look like she was doing the downloading, but then just rattling off some buzz words like bot, rootkit, etc. to a non-technical jury.
I work in the security industry and it is trivial to infect a computer so that I remotely can intercept what the user sees and types, making it easy to get her username for various web sites and such.
It's also easy then to remotely install a P2P file sharing program so that the user never sees it. I could then populate the hidden music folders by downloading from other p2p sites, and share the downloaded files back to the network. I could also remotely copy the music files from the hijacked computer to my system without exposing my IP address or running P2P software.
In other words, I can make it look just like Jammie had downloaded and was sharing the music, with her being completely unaware of my use of her computer.
Additionally, since remote exploits by hackers are often unstable and can overwrite critical parts of the hard drive, it would explain why she had to have the hard drive replaced.
Why, oh why, don't defense lawyers ever want to shed a little ego and consult with security experts when a little googling would show that a security breach could easily have been at fault. Just rattling off name like BOT, Hijack, Rootkit, etc. without trying to find out what they are and what they could do to aid your defense position, seems to be neglect of duty by the attorney.
I don't think he even set it up so that an appeal based on these techniques could be made, mostly because he didn't get the "finding of facts" to cover such exploits.
Sorry Jammie -- I don't think anyone was expecting your defense to be so poorly done.
Jerry
She also used an id that was known and easily traced back to her.
Third, the fact that she used the service and placed the music to be available, the intent was there. Hence the judge's rule to the jury.
She's no poster boy to be used to attack the RIAA and their thug like actions.
Her lawyer had his hands tied and the "hacker-x" excuse isn't plausible.
I agree the defense could have done a better job, but you also have to remember the financial constraints she was under. Experts have to be paid and where was she going to find the money for that?
Hindsight is always 20/20 and there are many things that could now possibly have helped her defense, but it wasn't until after this case started that this information was becoming public, not before. Maybe if she wins an appeal, all this information will find a way into the case that was not available to her before, and given by people who are willing to show how these theories are possible without it costing her a small fortune.
No one can secure an undocumented, closed source operating system. Period. You don't have a clue what is really in it. I have seen Windows boxes configured to the most paranoid settings possible (see http://www.nsa.gov/snac/index.cfm?MenuID=scg10.3.1) hijacked in under a day in so-thought 'safe' networks. You can't secure what you can't see, what you don't even know is there.
Her lawyer really, really sucked.
You'd think the EFF would have at least offered to have some credible computer experts on hand to testify on the defendant's behalf. They could have set up a quick demo, shown the techno-rubes of the jury just how easy is is for me to become you, without your SSAN, just your IP address.
Hell, all they needed to show was that she had a crappy (or blank) Windows user password and an XP box with remote desktop sharing (aka WTS) enabled.
Perhaps the best way to defend against this kind of crap is to turn off our firewalls, rip out the A/V software, blank the passwords, fart off the security patches, then make the a-holes at the RIAA prove Windows is trustworthy enough to record accurate forensic data. (Not even close)
This will make anyone think twice about cooperating in any more EFF legal misadventures.
Never mind that the main point of the article was //attacking// big business rent-seeking in Washington DC.
Never mind that I interviewed and quoted Lew Rockwell, who has devoted his life to //criticizing// big government.
Never mind that I interviewed and quoted Walter Block, who is an anarcho-capitalist who would actually abolish almost all of the federal government (maybe all of it, I haven't had that exact conversation with him).
Yep, you found me out.
Note to everyone else: This is sarcasm. And it shows what happens when someone doesn't read beyond the headline.
Why is it, that with all the resources available to people these days, it's still impossible for modern people to get any kind of fact in their heads and form a coherent thought?
That's not what happened and Nazi Germany.
At that point it doesn't matter if anybody read the copies or just tossed them in the trash or ignored them. The violation is in offering them up. In the eyes of the law, she was publishing somebody else's content.
You folks remember the terminology from Apple's old propietary network file sharing over Appletalk?
Publish and subscribe?
Well, she was publishing music over Kazaa.
The law doesn't require subscribers; only the publishing.
Don't like the law?
Call your congressman and/or senator and tell them to change it.
But as long as the law stands, publishing somebody else's property, even for free, is illegal.
*That's* what the jury (properly) said.
BTW, the jury *could* have fined her a whole lot less than $200K. ($750 per song instead of $9000 per song). They chose not to. Think about that, children.
They just saw no reason to cut her a break.
These zombie programs usually come tied to some software, usually something that seems nice and useful but becomes a pain once downloaded.
More than likely if you're accused of using p2p for sharing music it's because:
A) You were or someone with access to the computer was.
B) Your wireless network is not secure.
Reason A is pretty self explanitory. B is something most people need to learn, you don't leave your home network open unless you plan to be responsible for what happens on it. A little common sense goes a long way, and is much better than becoming insecure and basically limiting yourself.
This jury, judge and this country are a joke just like the RIAA - they aren't protecting anything other then money in there own pocket.
Welcome to the new communinst USA - and the start of a new cold war oppsite the last - Russia is free and we are confined. Personally i wish this girl would have consulted an IT professional - To spoof and IP is not hard and that would have left enough doubt to at least get the idiot people of the jury thinking - A personal note who was her lawyer because they should be sued for malpractice - what a law firm of **********!
Come on, she connected to Kazaa so she herself could download illegally. That they happened to nail her for supplying downloads just goes to illustrate that the law DOES make it hard to convict on this point.
But you know she did it on purpose, she certainly knows that, and any fake "well it could have been anybody" defense is just a con, plain and simple. Maybe she could have made the claim more convincingly, who knows, but I for one am glad she didn't convince a jury to ignore common sense.
My infant occasionally damages (i.e. - scratches) DVDs without realizing it. I don't always catch it before it happens. With what goes on nowadays, I can't even legally make backup copies of the DVDs I purchased because of the copy protection on them. Yet I legally purchased them. I don't see anybody in Hollywood offering to replace them for the cost of the media. After all, I DID purchase the RIGHT to use the copyrighted material on the damaged media, right?
There's another thing I've noticed with patent protection versus copyright protection, and some have disagreed with me on it - no problem there...
Somebody should do a story on length of copyright protection time for a song versus length of patent protection time for a lifesaving pharmaceutical.
Looks to me like the pharmaceutical ends up loosing patent protection WAY before copyrighted audio works. Billions of dollars usually go into producing a single lifesaving pharmaceutical and those patents are usually good for a bit over 20 years, depending on a number of factors, if I understand correctly.
I don't necessarily consider that unreasonable.
However, after 1977 the copyright protection for a song is good for the life of the author plus 70 years, 95 - 120 years depending on other factors and there are other rules for works prior to 1977.
Now with people's feelings against pharmaceutical companies aside, you're telling me that a pharmaceutical company can spend billions of dollars producing a life saving drug, loose patent protection in 20+ years, but the RIAA can continue filing legal actions for 70+ years for copyrighted songs (depending on a number of factors)?
I'm sorry, but it seems to me there's a problem here, and it's not the length of time it takes for a pharmaceutical patent to expire.
I feel that there's no way a song should get longer protection than a lifesaving drug. Again, this is putting any feelings against pharmaceutical companies aside.
Charles R. Whealton
Charles Whealton @ pleasedontspam.com
copy for backup. In case anything happens to
the original. I know that "Big Business" was
trying to change that Law. I was wondering
if they had succeeded in doing so. If your
product gets damage they should replace it.
Like Computer companies, You go out and buy
a brand new computer from places like Best Buy,
Office depot and other places like that. 9 times
out of 10. You will not get the software that is
loaded in that machine on disks or CD's. And a lot
of people that don't know that their restore software might be on a partition called D:\ and if
they had a DL DVD recorder where they can record that for backup software. If they have a melt down
they will not have software to install back on the machine. So, where do you get the software other than buy everything that came on it. Or pay the tech support of the store to put things back on. Sorry, just another beef about, how big business screws the consumer.
Downloading someone's music without paying for it IS stealing. Rationalizing it, crying about it, screaming about it or name calling does not change that.
If you don't like being called a thief, don't steal. If you you steal, get used to being called a thief, and the consequences that go along with it. If you download music that you should be paying for, you are a thief just like the guy who robs a bank or breaks into a house. Thieves suck. Got it?
express themselves through their art then they should do so for
the pure satisfaction of it. Who says that the creators of intellectual
property deserve to be compensated indefinitely? If you want to
make a living try some other line of work. If you feel the need to
express yourself then publish directly, let the consumers who truly
appreciate your creativity reward you directly and let the the
untalented corporate jerks who can't carry a tune to save
themselves go to hell.
adultery, people manage to see past the fact that adultery is
illegal and wrong just about everywhere, and protest loudly
about the fact that the punishment in no way fits the crime.
If this is the price of having an American Entertainment Industry,
then I'd much prefer to see full-time, professional art become a
thing of the past. Civilization can put talented people to better
uses.
What civilization cannot have, is the risk of a family shattering
event caused by a petty crime that every kid will eventually
commit - sharing what should not be shared. Even record
industry executives have kids commiting this crime, and they
aren't having their lives confiscated. The great irony is that
sharing is one of the most important values that kids are taught,
which is not problematic when dealing with physical objects.
No amount of advertising is going to fix this. The entertainment
industry is the enemy now. The lesson in this penalty is that you
should stay far, far away from commercial entertainment; the
lesson about stealing is almost secondary.
Let the stone throwing begin. If the music industry really
believes in the rule of law, most of the artists that create their
content should be doing their prison sentences for drug
charges.
- Play with Fire, Get Burned!
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by aunjar
October 6, 2007 4:21 AM PDT
- Let?s face it, we all new that it would only be a matter of time before the record and movie industries started really cracking down on the common everyday sap.
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Reply to this comment
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- Yep, the writing was on the wall years ago!
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by mike.gw
October 6, 2007 9:01 AM PDT
- Back when the original Napster was hot, I loved it. In fact, I think Napster may have helped jumpstart the move to broadband for many. I know I switched from dialup to cable so that I could enjoy my Napster searches with minimal delay. Admittedly, I was not a good Napster participant. Because I didn't want my computer slowed down by other Napster queries, I always turned off the option that allowed my computer to share my music files. I only used it to find a particular song I liked and downloaded it on occassion.
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Showing 1 of 5 pages (163 Comments)This poor woman is just paying the price for being stupid. In fact, according to studies many of us, especially teens are being stupid every time we make our music available on a peer to peer site.
This is just the Recording Industry Association of America - RIAA, the big boys finally being able to make good on their threats to bring the full weight of the law down on scofflaws.
Don't get me wrong, I for one firmly believe that if I buy something, whether it is a CD or DVD it should be mine and I should be able to do whatever I want with it. Unfortunately, the law says otherwise.
My suggestion for anyone who does not like the law is simply this? Make them change it, don't buy the music, don?t buy the movie.
We spend billions, maybe more on CD's and DVD's and the best way to tell them no is to show them. But, herein lies the problem... How do you organize such a movement? How do get the masses to work together?
It's difficult enough to organize the people in you neighborhood to have a successful block party. Imagine what it would take to achieve something of this proportion.
Until someone finds a way to make it happen remember... Play With Fire, Get Burned!
Once I saw the RIAA getting involved in lawsuits against Napster and their users, I uninstalled the software, and never resorted to the alternatives that cropped up like Kazaa or BitTorrent. Then again, I never had to, because iTunes and the iTunes Music Store seemed to come along just in time. I thought that 99 cents was very reasonable for individual downloaded tracks, and searching, paying, downloading and loading my iPod were made very simple by this iTunes software.
I never wanted to steal music. I just wanted to find it easily, buy just want I wanted, and obtain it at a reasonable price. iTunes allowed that where traditional CD sales did not. In fact, I purchase all my music via iTunes, and plan to do the same with movies as well. I'd rather have mu AV library on central digital storage, than individual disks any day. Organizing is just so must easier.
Like aunjar said, Play with fire, Get Burned. iTunes/iPod/Apple TV, for me, is the way to go. Simple, affordable and legal.