October 12, 2007 10:13 AM PDT

Week in review: Download dilemma

The landmark music copyright verdict refocused attention on file sharing, including the record industry's efforts to quell it.

Jammie Thomas, the Minnesota woman who last week was ordered to pay the recording industry $222,000 for copyright violations related to sharing songs, has decided to appeal the verdict. Thomas announced her decision on cable news channel CNN and on her MySpace.com page, saying that the appeal would be based on the federal jury's finding that making songs available online violates copyright.

"This would stop the RIAA dead in their tracks," Thomas wrote on her blog. "Every single suit they have brought has been based on this making-available theory, and if we can win this appeal, they would actually have to prove a file was shared."

But can she actually win against the Recording Industry Association of America? CNET News.com's Declan McCullagh says there's probably a 50-50 chance. On one hand, the RIAA has won some minor victories in the last few years with its "making available" arguments to expand copyright law beyond what it actually seems to say. Now that there's finally going to be some serious public and judicial scrutiny, however, the odds are closer to even.

Some are suggesting that someone may have steered her into taking on the recording industry. Why would a 30-year-old mother of two, who makes $36,000 a year, want to go toe-to-toe with the recording industry, asks Chris Castle, an attorney, former music executive and owner of a small record label. Last week, Castle accused the Electronic Frontier Foundation, a group that advocates for the rights of Internet users, of trying to turn Thomas into the "Joan of Arc of illegal downloading."

Thomas responded by saying "my comment to him is that this was all my decision," she said. "From the get go, my attorney has pointed out to me what could happen. We knew (losing the copyright trial) was a possibility. I am no puppet."

She also got some criticism from one of the jurors in her trial who said the jury did not believe her story that someone spoofed her IP address. In an article on Wired.com, the juror said he had never been on the Internet.

"She should have settled out of court for a few thousand dollars," the juror told Wired.com. "Spoofing? We're thinking, 'Oh my God, you got to be kidding.' She's a liar."

That didn't sit well with Thomas.

"I don't need to say too much, obviously," Thomas told CNET News.com. "They admit that they are computer illiterate. This person has never been on the Internet, so how can he say whether my story is possible?"

Meanwhile, the image of a rich and gargantuan corporate entity steamrolling a woman with limited resources is etched into the minds of many onlookers, say public relations experts. So why, then, if the RIAA is taking a PR beating, is the group continuing to pursue Thomas? Why not target people who tug a little less on the public's heartstrings?

But, according to industry insiders and the RIAA itself, the group has little choice but to continue to file civil complaints against file sharers--bad PR or not.

However, many CNET News.com readers rejected that argument.

"The industry association is not charged with protecting artists. Its goal is to protect the industry and its members," wrote one reader to the News.com TalkBack forum. "For decades the industry has run roughshod over the artists and now it wants to play the 'we're protecting' card?"

Oracle bids for BEA
Oracle grabbed headlines late in the week with its offer to acquire Silicon Valley rival BEA Systems for $17 per share, a total of about $6.67 billion in cash. If consummated, the acquisition could eliminate issues about what BEA will do for future growth while furthering Oracle's years-long effort to consolidate as much of the software industry under its own roof.

Oracle's offer, made in a Tuesday letter to BEA's board of directors, is a 25 percent premium over BEA's closing price Thursday of $13.62. BEA's shares surged 33 percent, or $4.49, to $18.10 in morning trading Friday.

BEA has been under pressure from rivals including IBM, Oracle and a variety of open-source software projects. Despite introducing new product lines, new license revenue has been tepid or declined over the past two years. And investor Carl Icahn, who earlier this month acquired a 13.2 percent stake in the San Jose, Calif.-based company, has been urging the company to put itself up for sale.

BEA rejected the offer Thursday. "It is apparent to our board...that BEA is worth substantially more to Oracle, to others and, importantly, to our shareholders than the price indicated in your letter," William Klein, BEA's vice president of business planning and development, said in a letter to Oracle that BEA made public on Friday.

Around the Hill
In addition to weighing in on the Jammie Thomas case, prominent champions of tougher copyright enforcement also took their fight this week to a stately Capitol Hill caucus room, staging an expo aimed at playing up the legal protections' importance to their livelihood. The event was put on by the Copyright Alliance, which formed earlier this year to promote the "vital role" of copyright in the U.S. economy and job market, encourage inclusion of copyright protection requirements in trade agreements, urge tougher civil and criminal penalties for piracy, and dissuade any weakening of copyright law.

Most of the major players had booths at Thursday's shindig, and some of their messages were hardly subtle. The RIAA hung wrinkled T-shirts that read in bold print: "feed a musician, download legally."

CONTINUED: Trouble for Sprint…
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Corporate piracy and RIAA's impotence
I am a staunch supporter of copyright protection. I have be
railing against corporate pirates such as YouTube and MySpace
in my blog for nearly a year. But this so called "victory" by RIAA
against an individual reflects a grand failure in our society to
hold major public corporations accountable for systematically
making available music files available to millions of users
smacks of the kind corruption we only see in tiny little third
world countries ruled by dictators. The message that the RIAA is
giving society and the very consumers who the record industry
they represent need to have in order to monetize their content
(in concerts, t-shirts, downloads, CD sales) is that stealing is ok,
but only if you are big enough to influence (read: control) the
media. Why does the RIAA not join Viacom in their suit against
YouTube or initiate a suit against MySpace on behalf of the
labels that have not yet come to some settlement with this giant
despot? Legal fees would be better spent and the rewards would
be much bigger for the record industry and society as a whole if
people were shown that even (or especially) big companies must
respect the law!

Shelley, alldigdown.com
read more about this: <a class="jive-link-external" href="http://www.alldigdown.com/blogs/" target="_newWindow">http://www.alldigdown.com/blogs/</a>
Posted by shelleytaylor (2 comments )
Reply Link Flag
Corporate Piracy
GREAT question, Shelley!!!

The answer, in my opinion, has to be "both". But I agree with you. If we set double standards in this country (Google is far and away the largest copyright infringer on the planet with News Corp/MySpace not that far behind), we might as well fold up our tents. What signal does this hypocrisy give to our children and both the booming and emerging economies around the world who really could care less about protecting Amercian citizens?

Good job. I was pleased to read this post on this beautiful Saturday morning here in Virginia.


Posted by George Riddick (33 comments )
Link Flag
Is the RIAA even a valid party to seek suit?
First off I find it rich that an organization that has been crooked from the start, now finds the light and seeks recourse through the courts for alledged illegal activity.
Second, The RIAA and ASCAP are non-profits(Yeah Sure) and thus they pay no taxes, meaning they are stealing from us Mr. &#38; Ms. Taxpayer.

Now I have a theoretical scenario I would like to ponder, since I have all these records, cassettes and reel to reels that I OWN or am license to listen to, and I can record them digitally to my computer to make it easier to search and find for my personal use(And there are NO shared directories that I allow on my Computer, too hackable) Let's say I have the complete Black Sabbath catalog, except for Paraniod which got lost or stolen. Since I can't prove I had the album, what law would prevent me from saving myself some time and downloading the full Black Sabbath catalog except for Paraniod which I don't currently own. would this not be a legitimate use of p2p. I've always wondered about that when these issues come up. I'm an old timer so for those that don't know the full history from what I have seen; In the seventy&#8217;s I used to buy 45rpm single records for forty-five cents they had two songs on them, the A side had the top 40 hit the B side some filler from the album., Vinyl albums sold for $3.99, Eight Tracks came out and raised the cost a dollar, and would get eaten buy the player after about 25 plays. Along comes the Cassette which was great, I could record simulcast live events, most radio stations would have Sunday night where they would play six albums in their entirety and you could record these. The downside; the little pressure pad that held the tape to the play head would fall off after a while, the cost of Cassette albums was $5.99, Vinyl stayed at $4.99. You could also buy what where called Cut-Outs for $1.99 which where full albums that had either a hole in the packaging or the tip cut of the corner, these were what you would call seconds. I have hundreds of vinyl, cassette and another hundred Reel to Reel albums that I bought during this period and have kept, I am glad I did. Later along comes the CD this product was greeted with consumer contempt, for one reason it jumped the price up to $9.99, another was the fact that it sounded tinny and flat, no real resonance to it. The marketing on them was that they would not scratch and skip like records and would last forever(no one bought this BS either), sales where terrible, CD&#8217;s had less market share then Cassettes. So the record companies announced that they are phasing out vinyl, due to the high cost of production, while at the same time justifying the cost of CD&#8217;s due to higher production cost. There was huge resistance to this along with petitions to the record companies to just raise the cost of the vinyl records to that of the CD&#8217;s. Makes sense so why didn&#8217;t they do it? Well, you have to remember this is the same industry that had the Payola Scandal (Google it), was constantly investigated for Price Fixing, stole the artist rights to their own music through fine print contracts.
Here's even more interesting history, the RIAA was a non-profit consumer group! I&#8217;m quoting this off of the album cover from the seventies The Band, Stage Fright; &#8220;This record has been engineered and manufactured in accordance with standards developed by the Recording Industry Association of America, a non-profit organization dedicated to the betterment of recorded music and literature&#8221; Follow me so far? ASCAP As found in the Wikipedia: &#8220;The American Society of Composers, Authors and Publishers (ASCAP) is a non-profit performing rights organization that protects its members' musical copyrights by monitoring public performances of their music, whether via a broadcast or live performance, and compensating them accordingly&#8221;.Wow I thought RIAA was "Protecting" the ARTIST but it seems that is the job of the ASCAP. This means they may not actually be a party that can sue, and isn't non-profit tax free, if you Google ASCAP you'll see they look shady too I&#8217;m a musician, I play guitar, back in the day I was damned good. I never had any interest of getting a band together and getting into the grind because I knew some bands that hit it big and got a contract, I made more money then they did with my day job. Even if you got huge you damned near had to kill yourself to make a decent buck. and you had to give up all rights to your music that you wrote. I have absolutely no respect for the recording industry that cannibalizes all of it&#8217;s artist. If you compare them to the Movie industry whom pays it&#8217;s employees well and invests in it&#8217;s artist instead of ripping them off, you see what a bunch of crooks these guys are and always have been. Personally I hope the recording industry dies quickly

The problem really boils down to there are legitimate uses for p2p as well as there are for nntp (which has more instances and a broader range of pirated material over the years) or WWW or ftp etc. This women may well have had p2p installed for legal uses of which the files were in her "My Documents". If she chose to share that folder which windows defaults to adding music that you make up playlist for from your own purchased CD's in Mediaplayer, she may well have unknowingly made available those files along with other files she had in the subdirectories of "My Documents". Shye may have also been the victim of a trojan install of a proxy, once someone gains control thruough a trojan any executable can be installed, with the files being sent to the client. Thus it is important that her intent to distribute the files be proved.

This example of the woman mistakenly allowing her My Music Directory being a subdirectory of My Documents be shared, though she may have p2p for legitimate use Sharing Public domain and GPL files, or her loss of control of her computer to a trojan would show no intent. However, I have read both that she would have to check a dialog for subdirectories to be included, that would involve intent. I'm not sure how the install goes, never used it, but another poster states as a technichian, he has seen people list C: as the share. I don't beleive ANYONE would intend to do THAT, not with the security problems on the internet today!
Posted by CLBradford (15 comments )
Reply Link Flag
I HATE notepad too!!
Posted by CLBradford (15 comments )
Link Flag
What a Strategic Blunder!
Think about it for awhile.

If I broke into your living room and stole your treasured family photo album, and then placed the photos on a card table in my yard sale, would you have a claim whether the photos were actually sold at the yard sale or not?

What if I made copies of all the individual pictures for my own use?

What if we decided to give all the photos away at the end of the day?

What if I shared the photo album with one of my neighbors who was planning a similar yard sale the following week. She made perfect digital copies with her new computer and scanner.

The jury found that the excuses used by Ms. Thomas were not credible. Apparently, they determined that the plea of "you can't prove we stole anything" from her lawyer was nonsense as well.

The judge passed along his instructions based of judicial precedent and his own common sense.

This is what judges and juries do.

Any claims by Ms. Thomas or her growing hoard of attorneys that their interests in this case are not self-motivated (wouldn't surprise me if Ms. Thomas and her lawyer already had a book deal in the works) are completely disingenuous in my opinion.

Here was my reaction when I first heard of this decision early last week:


What a Strategic Blunder!

You know, I have never agreed with the folks at the Electronic Freedom Foundation, or other groups who seem dedicated to changing the long standing laws of copyright protection in this country. But I have noted one thing.

Their allies seem to include some of the brightest young minds in this country. From the law professors and students at Stanford, Berkeley, Harvard, Duke, and others ... to the lawyers at some of the most prestigious IP firms in the land ... to the engineers and scientists at some of our leading technology companies in this country ... the intellectual brainpower in this self-described "new wave" group has been impressive.

How this group could allow a strategic blunder like what we've just seen come out of Duluth is beyond me. Why these organizations didn't get involved, study the case thoroughly, and encourage Ms. Thomas, and her obviously inexperienced attorney, to surrender is truly phenomenal.

This is not the individual, the attorney, the forum, or the time I would want a precedent such as this established. What a strategic blunder!

Maybe these people are not nearly as smart as I gave them credit for. Apparently, they all sat back and naively thought (make that "wished") that Ms. Thomas would somehow end the RIAA onslaught forever.

Don't get me wrong. I applaud the decisions made by both the judge and jury in this precedent setting case. The anti-copyright crowd will suffer the consequences of this loss big time. Our economy will be strengthened. And these decisions will do more to help curtail widespread Internet Piracy than all the politicians, copyright industry executives, and lobbyists in this entire country put together.

I thought good lawyers advised their clients of the downside of their attempts to "change the law of the land" and could be sanctioned if they chose to pursue only "the big payday" or their personal "15 minutes of fame" instead. Read the copyright laws. Displaying and downloading copyright-protected works owned by others without their permission is illegal. It has both civil and criminal consequences. And, as in the case of Ms. Thomas in Duluth, they can be severe. She will have to pay back nearly $500,000 by having her pay check garnished for the rest of her life.

But she doesn't get any sympathy from me. If she had taken this many copyrighted songs out of Best Buy or Wal-Mart, she'd be in jail right now. And owe back a like amount of money as well. None of us - right or left - want to live in a lawless society. It's interesting to debate legal principles and consequences, but fearing to go outside for a cup of coffee or a loaf of bread is not something we have had any experience with in this country at all. Thank goodness!

And if you don't think organized white collar crime families are behind much of this Internet piracy epidemic, you'd better think again.


Here is the one issue I have discussed with my 20-year-old son and I do have "conflicts" with. Google infringes more legitimate copyrights every single day than Ms. Thomas could do in a lifetime. Do we now have a country that has completely different standards for the billionaires than we do for the normal working folks? If so, I sure hope this is short-lived as well. I think I'd rather give up the coffee and the bread than have to worry about Google stealing from me every single day.

What's your opinion?

George P. Riddick, III
Imageline, Inc.

Posted by George Riddick (33 comments )
Reply Link Flag
Real Reason
"So why, then, if the RIAA is taking a PR beating, is the group continuing to pursue Thomas? Why not target people who tug a little less on the public's heartstrings?"

Better yet, why not do what was done years ago regarding home taping? Why not pick a case, throw out the dollars and try it all the way to the Supreme Court to get answers, instead of perscecuting people for listening to music??

That is what the entertainment industry did when the VCR was invented. Rather that sue dead grandmas, handicapped moms, and 12-year-old girls, select a case, drop all right to recover damages, and try the case all the way to the Supreme Court. The real question is WHY DOESN'T THE RIAA ANSWER COPYRIGHT ISSUES THIS WAY?????
Posted by CopyrightLawSucks (2 comments )
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