The recording industry's music piracy fight was dealt a setback Tuesday when a federal judge rejected the RIAA's "making available" argument in a lawsuit against a husband and wife accused of copyright infringement.
In Atlantic v. Howell, Judge Neil V. Wake denied the labels' motion for summary judgment in a 17-page decision (PDF), allowing the suit to proceed to trial. The argument--that merely the act of making music files available for download constituted copyright infringement--has been the basis for the Recording Industry Association of America's legal battle against online music piracy.
The RIAA sued husband and wife Pamela and Jeffrey Howell for copyright infringement in 2006, claiming the couple had used Kazaa to make copyrighted files available for download. In a deposition, Jeffrey Howell admitted loading the file-sharing software onto his computer and that the songs listed in the complaint were for personal use but that he had not placed the files in the program's shared folder. He said that the recordings were copies made from CDs he owned placed on the computer for personal use and not copies downloaded from Kazaa.
He also argued that that he was not the one sharing the files, but that it was the computer that was sharing the files.
While the couple lacks legal representation, the Electronic Frontier Foundation said it filed an amicus brief on behalf of the couple (PDF). The EFF argued against the RIAA's "making available" position, saying in a statement that it "amounts to suing someone for attempted distribution, something the Copyright Act has never recognized."
Judge Wake apparently agreed with that position.
"The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public," wrote the judge in his order. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution."
EFF staff attorney Fred von Lohmann called the order the "most decisive rejection yet of the recording industry's 'making available' theory of infringement."
The order is a bit of an oddity in that it's a reversal of an order Wake issued in August, in which he granted the RIAA's summary judgment and fined the Howells $40,850 in penalties and court costs. However, the Howells appealed and the judgment was later vacated.
Guest post: Editor's note: Music attorney Chris Castle is all for finding a way to boost the music industry out of its current nosedive. But bundling music charges into ISP bills is not the way to go, he says.
Jim Griffin's idea sounds very much like the Lawrence Lessig-William Fisher "alternative compensation scheme" that has been around for a long time. Griffin's proposal is voluntary, like the version proposed by the Electronic Frontier Foundation, (which advocates for Internet rights).
There are many problems with the system, but here are three:
First, Griffin's plan produces a disaggregated chunk of money that is collected based on headcount, not based on music usage. One way to divide up that money that advocates often raise is based on some kind of sampling of usage (I think I've heard the Electronic Frontier Foundation talk about the sampling method used by the American Society of Composers, Authors and Publishers as a proxy. If you are going to sample peer-to-peer or BitTorrent files, you need to identify tracks. That can be done with fingerprint technology, and there are several companies out there that do that.
However, if you can identify the tracks on P2P systems enough to sample, you can identify the tracks enough to block and filter. So why not give copyright owners that right? The Portfolio.com story seems to say that Warner Music Group intends the system to cover all the world's music, but that must be a typo, for Warner Music obviously can only speak for its masters and the compositions they administer (even that is subject to artist and writer consent in many instances).
If you are going to divide up the disaggregated sum collected the Griffin's system on a method not based on sampling, then what exactly would that be? I call this the "Carl Sagan Scheme" because it promises "billions and billions" of dollars to the creative community. It also ignores what I think will be billions in the transaction costs of implementing the scheme--ISPs won't do this for free, and will want protection from copyright infringement claims of any stripe.
It's also important, for obvious reasons, that the company holding the data be "Swiss." I doubt that the labels would allow one of their number to control it, and a joint ownership scheme would face an inevitable antitrust challenge if the others were involved.
In order to be effective, Griffin's plan would require amending the Copyright Act. A voluntary plan is unlikely to attract a sufficient number of copyright owners. But without all copyright owners, ISPs and their users would still be exposed to claims of copyright infringement. If you think that gaining relief from prosecution is an incentive for ISPs to adopt this complicated plan, then you would, I think, assume that ISPs would want to protect their users from all claims for copyright infringement.
Which leads to the second problem. In order to get that global protection for users requires amending the Copyright Act. Without amending the Copyright Act, you will always have the "lone gunman" problem, or the copyright owner you missed getting permission from. It's tough enough to amend the Copyright Act on things that people agree on, and you'll never get anyone to agree to amend the Copyright Act on things that people are bitterly opposed to, such as Griffin's system.
In addition to these problems, if you go down the route of amending the Copyright Act, which seems to be the only realistic way to accomplish what Griffin desires, there are people who say such an amendment would violate the U.S. government's treaty obligations, such as the Berne Convention, the TRIPS Agreement, and NAFTA.
Also, it's likely the rest of the world may have a problem with Griffin's system, even if it's a voluntary system. A similar system was resoundingly defeated in the French Parliament, and President Nicholas Sarkozy has clearly come out against any such ideas. One reason is that it is hard to put a border on the plan, but this is really a worldwide solution that Griffin seems to be proposing.
We have only been focused on issues affecting artists and songwriters, but ISPs and P2P operators will likely have many other negative reactions to the plan. I can't imagine the Pirate Bay signing up for this.
It's a head scratcher, that's for sure. I'm sure there's a lot more to it than has come out in the exclusive interview.
There must be.
There are a lot of smart people at Warner Music, and I'm sympathetic to their desire to keep an open mind about possible new business models. But this one is old news and has not been well received in the past, so seems unlikely to bear fruit.
Hotels tack extra charges onto your bill when you raid the minibar--or if they're really mean, when you steal towels. If a new Warner Music Group executive gets his way, your Internet service provider will be billing you each month for music downloads.
Jim Griffin, Warner's latest top-shelf hire and the former head of Geffen Music, told Portfolio.com the details of a radical new strategy to deal with the record industry's 21st-century crisis. According to Griffin's plan, to which he said Warner Music is "totally committed," a monthly fee added to an Internet service bill--say, five bucks--could give consumers unlimited access to music that they could download, copy, and share.
He estimated that this could provide as much $20 billion per year to reimburse artists and copyright holders.
Griffin did not make it clear whether this would be an opt-in service, or whether customers of an Internet service provider would ideally all be charged even if they don't plan to download music. But, he said, he hopes that it would be much bigger than Warner, with the project eventually spun into its own company.
Recent weeks have seen a number of media and technology companies toying with the idea of unlimited-access plans as they grapple with the reality that iTunes and its ilk haven't stopped rampant music piracy. And legal efforts to curtail pirated downloads often proceed at a snail's pace--it took nearly two years and immense legal pressure before BitTorrent finally shut down the TorrentSpy search engine earlier this week.
Even on a run-of-the-mill day, a debate over the perceived rights and wrongs surrounding digital file swapping gets readers worked up. And I mean really worked up.
But ever since the Recording Industry Association of America prevailed late Thursday in its copyright lawsuit against a 30-year-old single mom with a couple of kids, all hell has broken loose.
I'll leave it to you to debate the relative merits of the case, but there's no denying that the recording industry sometimes can be its own worst enemy. It's almost as if the industry's hired guns were on a mission to justify everything critics say is wrong about the copyright system.
Check out the comments responding to the blog authored by my News.com colleague Declan McCullagh, reporting why the jury decided Jammie Thomas of Minnesota must pay $220,000 to six of the top music labels. Here's a sampling:
"These big record companies are pure evil, with a history of doing everything they can to screw the consumer and squeeze every penny out of them, just to buy Edgar Bronfman Jr. and his pals more yachts and limos."
Or:
"I don't think P2P networks, and uploading or downloading, is stealing but (rather) more of an alternative method to acquire art for your own listening pleasure. If someone is "profiting" from downloading/uploading art, then that is stealing. How is today's digital format different from recording a vinyl record onto a cassette? For yourself or for a friend? However, back in the '70s, the RIAA didn't sue people for doing this, and EVERYBODY did it!"
That was predictable. The recording industry argues that the law is on its side. But then it's goes out and backs up its claim by suing individual music listeners. Hello? Did anyone at the RIAA consider that this may not be the best strategy to win hearts and minds? Slash and burn, yes--but this isn't the Mekong Delta, folks. I found myself closest to this poster, who argued:
Back in the '70s, everybody did it--it was no less stealing, but it was also much more difficult, and the quality typically wasn't nearly as good...If I wanted to make 50 copies for my friends, it would take hours and hours.
If I want to give 50 copies to my friends now, the e-mail group takes seconds...It's a different environment, and RIAA had to evolve in strength and ability to meet that environment...Sharing only goes so far--and it's much easier to share the property of others...Were someone to move into my garage or living room, and start taking my leftover pizza from my fridge, "share and share alike" ain't gonna be the first thing on my mind.
The last time I looked, these folks were still debating the finer points of this dispute. I don't want to get stuck in the legal weeds, but my immediate problem with the verdict is that the punishment is disproportionate to the crime. If my math is correct, we're talking up to $150,000 per willful act of infringement when the purchase price of a music download is 99 cents.
The bigger question is the absence of any consensus in this country about the proper rules of behavior governing digital downloads. When it comes to digital music, what constitutes fair use, and what constitutes theft? I know what the law says, but most people don't bother consulting the U.S. Code.
The recording industry won a controversial copyright conviction, but this is a brief chapter in a endless saga. The only safe bet to make for now is that the divide about what we ought to do will only widen.
- prev
- 1
- next
