October 17, 2007 4:00 AM PDT
Perspective: Recording industry shows how to lose by winning
See all Perspectives
- Related Stories
-
Rights and wrongs in the antipiracy struggle
October 16, 2007 -
For RIAA, a black eye comes with the job
October 9, 2007 -
RIAA verdict playback
October 8, 2007 - Related Blogs
-
Democratic congressman: RIAA's $222,000 win is 'excessive'
October 5, 2007 -
RIAA wins key victory; accused file sharer must pay $220,000
October 4, 2007
The collective focus of the organization has been to hold people who upload music to peer-to-peer networks responsible for stealing from its members' organizations. The primary method for enforcing their rights against illegal file sharers has been the threat of litigation.
Now, an important milestone has occurred to add muscle to its campaign against illegal file sharing. A jury found Jammie Thomas, the first defendant to go to trial in an RIAA case, liable for illegally making available 24 songs on the Kazaa network, and awarded the plaintiffs $220,000 in damages.
While victories in the court of law are necessary to preserve the RIAA members' interests in the music they promote and distribute, it is not clear that such victories translate to the court of public opinion. Though she does not make an ideal martyr, anticopyright organizations and activists have held Thomas up as a victim of the tyrannical RIAA, and the greedy music labels.
According to Cary Sherman, president of the RIAA, the outcome of the Thomas case will further deter people from illegally sharing music on the Internet. Yet, there are many people who do not know why file sharing is illegal, or even if it should be.
Many attorneys and copy-left activists are looking at the Thomas case as an opportunity for higher courts to consider whether seeding peer-to-peer networks with songs is copyright infringement. In the United States, owners of copyrights have the exclusive right to distribute their works. Entities from BitTorrent to Harvard Business School define peer-to-peer networks as distribution platforms. Therefore, it is not a huge reach that making music available on a peer-to-peer network violates the right of copyright owners to distribution.
The campaign against downloading really should be a campaign against uploading. Technically, the infringing act occurs when a person uploads content without permission from the copyright owner. Thomas' decision to make the songs available on Kazaa was not hers to make.
The jury agreed that Thomas did not have the right to upload the songs, and awarded the plaintiffs $220,000 in damages. The troops have rallied around Thomas claiming that the damages award was excessive.
However, the jurors were aware of the range in which they could issue damages. They chose a value that they thought would not only compensate the plaintiffs, but also perhaps to discourage the defendant from participating in illegal activities.
Regardless of the outcome of this particular case, statutory damages are an important tool for copyright owners as it may be impossible to establish actual damages for copyright infringement. That is, in a decentralized distribution model like peer-to-peer file sharing--Napster 1.0 and Grokster--determining how many people obtained copies of a particular work may be impossible.
Fundamentally, the outcome in the Thomas case will likely cause future defendants in file-sharing cases great pause before they decide to fight the RIAA in court. However, the RIAA may have lost in the most important court of all, the court of public opinion. It may have missed the opportunity to use the case as a means to educate the public about the importance of copyright. Instead, Thomas, and her supporters, will continue to argue that she has been the victim of the abusive tactics of a greedy industry.
Biography
Nancy Prager, an intellectual property and corporate attorney, represents technology and entertainment clients on matters from privacy to music licensing. She maintains a blog at NancyPrager.wordpress.com and can be reached at nprager@pragerlaw.us.
See more CNET content tagged:
RIAA,
court,
plaintiff,
damage,
defendant
Some of the problems happen when a person wants to see what all the fuss is about but they know little about their computer or how software works. So they download a copy of a P2P client and install it using the default settings.
The P2P software will, by design, besides loading a ton of malware on the user's pc, will also peruse the consumer's drive and find files that it will make available on its network.
The software assumes that the user wants to share and not be selfish, and thus acts accordingly by locating available media and making that media available as an upload.
This process may be totally unknown to the user who has walked away from their PC during the software install to watch television, go to the kitchen for a snack, or engage their pet.
But the end solution is going to be obvious; a nanny state. We will need to find a way to block software from making items available, and at the same time, educate users to what the software that they are installing are capable of.
Most PC users are clueless as evident by the number of chain emails, false theories, and other things that the average consumer falls for.
So perhaps we need to either change our laws, which is the best solution, to address the concept of fair use and copying or we need to change the law of software installation and dumb it down so that all users understand.
These things will never change the hardcore fileswapper who has copies of everything already and gets the latest releases before they are available. They already know what is being shared and they know how to manipulate the software. That is maybe 30% of filesharers.
But this will affect the recreational user and those right now are the primary targets of the RIAA who for some unknown reason, maybe ease, would prefer to target consumers rather than real pirates who sell tens of thousands of CD's and DVD's daily.
Technically speaking, Thomas did not upload anything. She "made available", i.e. she selected a particular folder for sharing. (Whether this was intentional, or inadvertent by mistake or ignorance is another debate I'm not engaging in for this point, but should be an aspect of assigning guilt.)
The P2P program allowed others to access files on her PC and transfer them, which involved an upload on the part of her PC, but not her. She may have been completely unaware the upload was even taking place.
Yes, it's a small distinction, but when you're debating nuances in this issue, it ought to be stated properly. It's important to both the case and the public understanding/opinion.
There should be simple rules about sharing music, regardless whether it is uploading or downloading.
If someone wants to apply IP law in the way it was done to Jammie Thomas, it is not gonna work as a fair legal tool. People are accustomed to buying physical goods. If RIAA is insisting that it is selling rights for the music, it has to manage people's expectations about what they can do with the records they bought. Well, in case you didn't noticed, they had to do it long time ago, before artists started to figure out that they don't really need someone like RIAA between them and their auditorium.
Anyway, this story doesn't make sense. The writer first says they're suing "uploaders" -- or, rather, those who offer stolen music for download -- then says the RIAA should take its focus off downloading and go after "uploaders."
RIAA member labels (the RIAA doesn't sue anyone itself) have never sued anyone for downloading alone. Everyone who's been sued has been accused of "sharing" at least several hundred songs.
And if anyone doesn't know "sharing" copyrighted material is illegal by now, they're too stupid to be allowed to go online. As for not thinking it should be illegal that's neither here nor there: The fact is, it's illegal now.
And Jammie Thomas would make a better martyr if she weren't, you know, guilty.
Yes...if the range had been $15 to $1000, 2 would demand the full one thousand, one would have insisted on $15...and they would have reached a compromise of $300, because they needed to 'send a message'.
The fact is they were playing with outrageous sums and so they were settling on what they thought was a middle ground...not realizing these sums were meant for racketeers...not a individuals who messed up.
You don't get a $100,000 fine for speeding, the amount was absurd, and the jury...like most juries does mostly what they are instructed, they simply cannot think at the reasoned level, that you would hope a professional lawmaker could think at (unfortunately they don't always think either).
I can imagine that people download because they're just displeased with the crap that most albums consist of. A&R is largely nonexistent. Artists careers aren't nurtured. Instead, artists are dropped if they don't post big numbers within the first few albums. Such a way of thinking results in stuff that while commercially successful isn't exactly the best. Why do you think that people aren't willing to invest $15 dollars for a CD? The record industry needs to look at music purchases as investment by consumers. What are they getting for their money?
I view downloading as an extension of the listening booths that used to exist. People could check out records before buying them. You don't always have that option. Also, what recourse do you have if you don't like the CD? 9 times out of 10 you get an in-store credit. There are no guarantees that music is good.
I feel that the record industry needs to come to table and discourse with consumers. While I'm sure that there are citizens that are on the record industry's side, I suspect that there are more that view the record industry as villains. They might have intended to punish Jammie Thomas but they've unknowingly made her into a martyr, whether through her own choice or by creation. Litigation isn't the answer but discourse.
(oddly promulgated by media outlets such as Cnet that thrive on
copyright), the reality is that public opinion is broadly on the side
of RIAA-- more than just those 12 jurors. It is clear that this young
woman knew exactly what she was doing when she put the files out
there. Perhaps I will creat Dnet which will be a website that copies
Cnet's content lock, stock, and barel, but with advertising that
profits me instead. Then I will go out and promote the site and
defend myself by saying it is fair use.
But does that mean that the answer is to download pirated copies of music? No, of course not. What's needed is a whole new sphere of music. And that can only be realized once people stop listening to the RIAA music and start dancing to their own beat.
With the advent of the Internet there's plenty of opportunity to do just that. Unfortunately, the RIAA successfully shut down the best avenue for non-RIAA music when mp3.com took a misstep in the copyright world (making music you own available to you without having to seek out the CD from the shelf--purely as a convenience to you, but only after mp3.com actually copied the music to their own servers).
But there are now plenty of non-RIAA music artists out there. Seek them out. Tell your friends about them. Put their music on your mp3 players (because they have real mp3 files!) and listen to them while you're on the go. And send a big, giant, monstrous message to the RIAA that we don't need them, their music, and their artists.
BOYCOTT THE RIAA (which means no piracy, too!)
--mark d.
Like the farmer who gets a few pennies for the wheat in a loaf of bread, the musicians get a very small share of the price of a CD. Most of it goes for the multimillion dollar studio full of hi-tech sound gear, the packaging and distribution, and the marketing campaign. What Joni Mitchell called "the starmaking machinery behind the popular song." "Free Man in Paris." There is too much "industry" in the music industry and not enough music.
The same pathological giantism afflicts live performance as well. Staging and promotion (including ridiculous Ticketmaster fees) constitute most of the concert ticket price.
The Grateful Dead outflanked the industry from the start. Their albums were just tools for promoting the live performance, and they encouraged, rather than prohibiting, the fans' recording of the shows. They made a lot of money without suppressing their creativity.
Where is this heading? Across the Atlantic, the UK equivalent of RIAA, the Performing Rights Society, is suing a chain of auto repair shops for copyright infringement because the employees listen to the radio at work. Really!
http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/7029892.stm
So, if you want background music in your business, you would have to pay for a licenced service? The ASCAP/BMI fees were the direct cause of the explosion of talk radio. As a performing musician, I'm hoping this leads to a lot of opportunity for gigs.
The $200k fine should be shared amongst all who have uploaded files, the liability should not rest on the shoulders of one person who was just one of many who has uploaded and downloaded the same content. The costs to defend the recording industries losses due to their own failures in developing, supporting and promoting talent at a rational price will never be recouped through litigation. The RIAA and its members are organizations with too much fat to support the existing market. They deny the supply/demand curve and expect double digit profits in a commodity industry. They are achieving this fee through abuse of their artists and now of their customers.
What needs to happen is a standard way of embedding copyright info, such that it can be electronically detected and managed, for proper copyright owner and artist compensation, but not as a means to prevent or control distribution. Artists want their music out there, and the recording labels should not be allowed to deny this method of distribution, with a larger percent of compensation going to the artist for electronic distribution, because in that method they are providing a greater percentage of the obtained product, the actual content that is desired, without all of the packaging, media, promotion and distribution costs of retail sales.
To alter a copyrighted work to not contain the copyright information is already covered in law. With a proper DRM solution in place, the RIAA or individual Labels should be required to offer such P2P networks a reasonable mechanism for proper tracking and compensation of materials before they are allowed to file suit for illegal distribution, because after all these P2P networks are performing a function basically for free, that they pay lots of money to physical media distributors for. For the RIAA or individual labels to deny this distribution channel would seem in conflict of interest, or even breach of contract with the artist.
Again this is a strong argument to for copyrights and patent rights to always be assigned to the original individual creators and contributors, and not business or corperate entities to hoard over.
With that said, If I were to buy from them, the problem they pose I cannot accept. If I purchase a song from them, I pay them my hard earned money for it so that I may own it. It's mine, not theirs after they sell it.
If I buy an apple and decide to devide, or give, it to someone, the apple grower wont try telling me I can't do that.
If I purchase a cluster of grapes, the grower can't tell me I can't share it with others.
If I purchase an automobile and dismantle it and give the parts to someone else, the manufacturer can't tell me I can't do that.
I can go on but I think you get the idea. If the RIAA folks wanna keep selling music, write another song.
RIAA, what makes you think you are any different that other manufacturers? Pull you heads out and start writing music that is clean, wholesome, makes sense and you'll sell more.
The crap you call music now days is nothing but noise, makes me shutter to even hear the few words most of you utter and call it a song. I don't think most of you can write more than 6-8 words, and bay all means, you can't play music.
- Copyright
-
by The_Decider
February 6, 2008 7:11 PM PST
- There is a need for copyright, although companies have perverted the intent of copyright.
-
Reply to this comment
-
-
See all 39 Comments >>Too bad the RIAA is only interested in making money for itself, not helping the artists.
That is why no one cares about this dying organization.