A move's afoot to get a new trial for Jammie Thomas. She's the Minnesota woman a court ordered to pay the recording industry $222,000 for copyright violations related to sharing songs.
Jammie Thomas
You may recall that the jury never found that Thomas had downloaded any music but had infringed by making the music available for others to download. So Friday the Electronic Frontier Foundation, along with a coalition of consumer and industry groups, said the court's judgment should be overturned because of erroneous instructions to the jury.
The headline here should be: EFF to court: Jammie Thomas judge was a dolt. At the time, the instructions the jury heard posited the following:
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.But that was a mistake, according to the EFF (and a lot of copyright specialists who have since weighed in on the verdict.) Again, from the EFF submission:
The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work--a completed act of transfer. To permit a finding of distribution liability based on anything less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner.
This is potentially a big deal. If the so-called "making available" theory holds up, you're likely going to see some odd copyright decisions come down the pike.
Already, the EFF notes, Google's been the target of some copyright owners who have pressed their case using the theory. Ditto for the DMCA notices sent to colleges and universities "based solely on evidence that students have made songs available for possible download by others."
Even the judge in the case now acknowledges that he may have goofed up. In October, when the Thomas verdict came in, my colleague Declan McCullagh observed that the Recording Industry Association of America's victory was vulnerable.
(It) rests in large part on...the judge's decision that the record labels need only prove that Thomas made copyrighted music "available" on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point...It's true that ditching the "making available" idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn't solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.
That's an important distinction. Based on what we know now, the courts agree. Bottom line: Thomas should get another day in court. And she likely will.
Editor's note: We're opening up our pages today to a guest post from James V. DeLong from the Convergence Law Institute. He is also special counsel at Kamlet Shepherd and Reichert.
Both houses of Congress are now considering legislation to ease access to "orphan works"--material under copyright for which an owner either cannot be identified or cannot be found (HR5889 & S2913).
The bills are good, but they solve only part of the problem: they help users who already knows what material they lust after. They do not help users search through the vast existing archives to find material worthy of such lust, and more legal tinkering is going to be needed.
Both bills are based on the Copyright Office proceeding of a couple of years ago, and their basic structures embody the CO-recommended solution. If someone wants to use a work, he/she must conduct a diligent search for an owner. If no owner can be found, then the work can be used. If an owner turns up later, a reasonable fee will be paid, based on a "willing buyer, willing seller" standard. The CO gets to define standards for reasonable searches, relying on best practices developed by the relevant communities.
In addition, there are special and vexing problems surrounding visual works, such as photos, and the CO is charged with establishing an electronic database to help here, a responsibility that it does not want.
These are good proposals. Not problem-free, but good, and long overdue, so one should wish them bon voyage. One can argue that they are unnecessary because any use that follows a vain search for a copyright owner should be automatically protected as "fair," but commercial organizations, looking down the barrel of heavy statutory damages, do not want to test this proposition.
But what if a user does not know what he or she wants to use, and needs to search to find out? This is the need addressed by Google and other companies that want to shovel whole libraries through the maws of the scanners, making them available for search and retrieval.
These efforts raise some legal problems. Publishers object on the grounds that making a digital copy is itself an infringement, especially if the copy is then shared with a library that may have expansive ideas of its rights to disseminate it further. They suggest that digitizers must get the copyright owner's permission first, and they may well be right to claim this is legally necessary. Google is temporizing by continuing the scanning program while being careful to limit public access to anything under copyright, but lawsuits against even this are pending.
As a practical matter, requiring advance permission is a deal killer as far as orphan works go. Publishers can go out of business, so even the title page may not tell someone where to go for permission. Then there are tons of "gray literature" materials that may be under copyright, since everything is under copyright, but that were not produced for direct commercial purposes and are sometimes of uncertain provenance. (For example, a collection of old theater programs, or auction house catalogs, or corporation annual reports.) There are also zillions of works with no serious commercial value for which an owner might be delighted simply to see them returned to the light of day, or for which the value is too paltry to be worth the transaction costs of negotiating a fee.
These possibly-orphan, sort-of-orphan, and gray literature works simply cannot be made available if the digitizers are required to make one-by-one judgments and seek permission before copying. If they are to be retrieved in useful form, then sooner or later Google, Amazon, Microsoft, and some others must be permitted to digitize on a massive scale.
On the other hand (and one needs a lot of hands to really discuss this issue), it is important that digitization not deprive intellectual property owners of legitimate rights, and how one writes a law that allows digitization by the reputable without also enabling Piracy, Inc., or Carelessness Corp. is a tough question.
At some point, some kind of grand grandfathering proceeding will probably be required, a window in which holders of existing rights must reaffirm them or lose them. Otherwise, we will get the worst of all worlds; much material will lie fallow and neglected, while other works will simply be digitized regardless. The 'Napsterization' of the music industry that resulted from the slowness of the rights holders to get ahead of the curve of digital distribution should be a cautionary tale.
Finding a solution will not be easy, of course. There are problems with definitions, graphic works, audio works, visual works, the need to provide incentives for people to find gold in the dross of past materials, and more.
There is also a need to allow digital access as well as search. As an Amazon Kindle user-tending-toward-addict, I find Google Book Search a bit irritating. I do not want to know where to buy a hard copy of the book; I want it now. Or, even better for research purposes, I want to buy a copy of a few selected pages online, not the whole work.
This is where the technology is going, and the law will have to adapt. It is a truism of history that protecting property rights is crucial, but the exact forms they take are malleable, according to the technological and economic realities of the time. Today is no different.
So the orphan works bills are a good start, Congress, but we should already be working on the next round.
Add Japan to the ranks of countries cracking down on illegal file sharing over the Internet. The Yomiuri Shimbun is reporting that the country's four Internet providers agreed to disconnect Internet connections "of users found to repeatedly use Winny and other file-sharing programs to illegally copy gaming software and music."
The four organizations include the Telecom Service Association and the Telecommunications Carriers Association. About 1,000 major and smaller domestic providers belong to the four associations, which means the measure would become the first countermeasure against Winny-using rights-violators used by the whole provider industry.
They organizations plan to launch a consultative panel, possibly in April, together with copyright organizations including the Japanese Society for Rights of Authors, Composers and Publishers and the Association of Copyright for Computer Software. They will then begin making guidelines for disconnecting users from the Internet who leak illegally copied material onto the Net.
The number of users of file-sharing software such as Winny in the country is estimated to be about 1.75 million, with most of the files exchanged using the software believed to be illegal copies.
A brief six-hour survey by a copyright organization monitoring the Internet found about 3.55 million examples of illegally copied gaming software, worth about 9.5 billion yen at regular software prices, and 610,000 examples of illegally copied music files, worth 440 million yen, that could be freely downloaded into personal computers using such software, the sources said. In other words, this survey alone, uncovered damages amounting to 10 billion yen.
Two years ago, a major Internet provider tried to introduce a measure to disconnect users from the Internet whenever the company detected the use of Winny or other file-sharing software.
Can't say that this comes as a shock. The reaction against illegal file sharing, which began in the United States, has spread to Europe, and now, Asia. Chalk it up to a super-effective lobbying effort by well-organized copyright interests representing software companies, music labels, and the film industry.
Will this hold up in court? I don't know much about Japanese civil law so if anyone out there has more information, I'd love to hear more. On the surface--and admittedly, I don't have more facts other than the initial wire report--this sounds like a classic overreaction. But that's been the main theme in the conflict between the establishment and new technology threatening to undermine its business model.
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