Music Download Case Goes to Jury

[lordsmurf]

I don't approve of cruel and unusual punishment, nor terrorism by a corporation.

As I said many posts ago, a standard fine, community service and probation would have been just as feasible. If suits must follow, it need be in small claims, over the actual loss (a $15 CD or a 99 cent song), and then that judge or jury can decide if punitive is deserved (up to the $5,000 max allowed in small claims).

Don't try to turn an conversation sideways because you were caught saying something stupid. You approved terrorism. I never approved the Kazaa downloading. Personally, I use iTunes if I want music, or used CDs off Half.com or Amazon.com.

[TheFamilyMan]

Now it's terrorism to take someone to court for breaking a law? Give me a break! I personally find downloading or facilitating warez, whatever its source, is basically stealing. Hell, bust everyone who is guilty!!! I'm sick of the "stick it to the man" attitude. Grow up!

[ntscuser]

Now it's terrorism to take someone to court for breaking a law?

Or indeed even for asking a question as to why it is a "bad" thing?

[lordsmurf]

Now it's terrorism to take someone to court for breaking a law? Give me a break! I personally find downloading or facilitating warez, whatever its source, is basically stealing. Hell, bust everyone who is guilty!!! I'm sick of the "stick it to the man" attitude. Grow up!

You're missing the point, it seems.

Terrorism is what the RIAA is doing. They want to instill fear into anybody who seeks to download content illegally, by getting courts to allow what amounts to cruel and unusual punishment. It's not about the law, it's about fear.

The punishment should fit the crime. When you ask somebody to pay $9,000 apiece for songs that are worth 99 cents off iTunes, as punishment, you've left the land of sanity.

If you want to prosecute, fine. But let's not use caveman justice while doing so.

This is worse than eye-for-and-eye even!

[videopoo]

It amazes me how many people in the world actually think downloading a song, DVD or tool ,you haven't paid for, is OK! I believe the her fine was a little steep for the crime but the girl deserves whats coming to her - if she's actually guilty that is.

The law should instill fear - thats what laws are for - retribution. It's wasn't the RIAA who imposed the fine, it was the law who upheld it.

[Midzuki]

As long as too many people do not keep in mind that the whole
copyright thing has been getting more and more unreasonable and
insane since the 19th century, discussions like this will keep
leading us to nowhere, sadly.

++++++++++++++++++++

[adam]

Some of you are very confused about how copyright suits work. There is no guilty. There is no fine or community service. There is no crime. No one is being prosecuted. This is a civil lawsuit. The lady was found liable and was forced to pay statutory damages for each infringement at an amount that was set by the jury. Copyright infringement is not valued at the amount of the "good" downloaded or uploaded or whatever. The value is set according to the violation of the right and the jury could attribute any amount within the statutory range. I always find it somewhat hypocritical how people say that the RIAA could never accurately estimate how much money is lost due to piracy, yet expect them to "charge" exactly $1.00 for each song downloaded unlawfully since that's all its worth. The whole point of statutory damages is that it is in fact impossible to estimate the cost of an infringement. That's why the law literally ignores that avenue. For instance, if I upload one song to one person maybe that person never would have bought it. It could be argued no money was lost, though I still find that a stretch in the long run. But maybe that guy then uploads the song 10 more times. Maybe some of those people uploaded it again, and so on and so on. Maybe if that song reaches 100,000 people, none of them would have ever bought the song either. But its very conceivable that some amount would, and there's no way to estimate the damage that my initial ~$1.00 upload just caused. That's why statutory damages are used, and you're damn right its as much about scaring people from engaging in the activity as it is about punishing them. You'll note that there are no punitive damages in copyright law. The point of copyright law is to protect your work and your investment in it and that means suing to enforce it. It is very important to realize that failure to sue to protect an intellectual property enough times literally results in a waiver of rights in that piece of property.

Out of the thousands of borderline bogus RIAA suits this one was actually pretty darn clear cut. The username the woman was using was the same one that she used on numerous websites which she was shown to have personally registered on. They analyzed her computer and found numerous music files, and the ones found in her personal directories were within the same genres/types/bands and the ones that were in her shared directory. There was also evidence that she deleted music files after the suit was filed and that she swapped out hard drives to cover things up. Her story that she never used Kazaa didn't make sense, since the name registered on it was the same one she used all the time. If you look at her attorney's closing arguments, he is forced to concede all of this. His only argument was that it was still possible that all this happened on her computer but that someone else was involved. One of his argument was that is was possible that someone hacked her computer, but there was no evidence of this. Civil suits just use a preponderance standard. All the RIAA had to do was show that it was more likely than not (51%) that she did this. The RIAA had a strong case.

The RIAA's method of settling cases is what is so tainted and suspect. But these suits do seem to clearly reach people who did in fact knowingly infringe a copyright.

[jagabo]

if I upload one song to one person maybe that person never would have bought it. It could be argued no money was lost, though I still find that a stretch in the long run. But maybe that guy then uploads the song 10 more times. Maybe some of those people uploaded it again, and so on and so on. Maybe if that song reaches 100,000 people, none of them would have ever bought the song either. But its very conceivable that some amount would, and there's no way to estimate the damage that my initial ~$1.00 upload just caused.

Sure there is. Your initial upload caused $1 damage. You are not responsible for the actions of others.

[adam]

Yes you are, its called contributory liability. The reason it exists is because if all you could be sued for was the $1.00 than there'd be nothing stopping you from doing it and there'd be no way for the copyright holder to enforce anything. They can't file 100,000 suits seeking $1.00 each. If your single upload has the potential to do real damage, by facilitating further distribution of that file, than you are held responsible and then there is actually some value to that right that the author holds, because now there is incentive not to violate it. Its not that you actually caused X amount of damages, its that you knowingly uploaded that file knowing that it could cause an uncertain amount of damages. For that, the jury gets to pick a number to assess against you.

[jagabo]

if all you could be sued for was the $1.00 than there'd be nothing stopping you from doing it and there'd be no way for the copyright holder to enforce anything.

That's the way it should be and that's the way it will be. Copyright in the future will only be useful for corporations to bash other corporations for large scale violations.

The future of the music industry is this:

All music will be available via unlimited subscription services (either as a low cost service you sign up for or as part of your ISP, cable subscription, etc). Every song ever recorded will be available via one subscription at any of the services. You will be able to listen to any song ever recorded, streamed or downloade to you on demand. Companies will compete for customers by providing better services (cross referencing, indexing, searching, etc.). Royalties will be split based on how much each track is downlaoded or listened to. For most people there will be no need or desire to horde music. The subscription will be cheap enough and the service valuable enough that they won't want to drop their subscription. Of course they may download songs and save them on their mobile players with no restrictions (eventuallly the services will be able to stream directly to the mobile players so even this won't be necessary). There will always be an underground where people are trading files for "free" but this will be small enough for RIAA to ignore.

Video will eventually go the same way.

[RLT69]

It's apparent that most people have not the articles about this case. Adam is correct. Read the articles. And yes she was responsible for the actions of other people.

Again from one of the articles:

http://www.news.com/8301-13578_3-9791764-38.html?tag=nefd.blgs

"JURY INSTRUCTION NO. 15: 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.

3. "Making available." Jury Instruction 15 is more important. It says that the RIAA doesn't need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas' computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference. "

Those were the instructions in the case. Plain and simple.

This was a civil case and the punitive damages were part of the jury instructions:

" JURY INSTRUCTION NO. 22: In this case, each plaintiff has elected to recover "statutory damages" instead of its actual damages and profits. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just. If, however, you find that the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just. "

So if you don't like the damages awarded then have the Copyright Act changed. It's pretty simple, change the laws. Then you won't have such outrages fines. This was an open and shut case. There's nothing to complain about here.

[lordsmurf]

I'm not the least bit confused. I question why civil suits are allowed to sidestep what constitutes "cruel and unusual punishment" while criminal law is far more sensible (and is indeed what RIAA refers too all the time, as a "theft" of physical property).

The argument also lies with "real damages". When dealing with non-corporeal "cyber data", what exactly is the damage? And by what means can it be accurately measured? Many of the figures out there are bogus and invented (look at the recent admission by the Canadian government).

Incentive to not violate copyright is not to screw customers in courts, but to provide reasonable alternatives that are legal. This is the primary contention of people who cannot stand RIAA and MPAA. They need to either release the material in a format folks want, or just learn to eat crow and live with rampant piracy of products they fail to capitalize on by their own choice.

Most people sued Napster then Kazaa, some years and years ago. Now most folks use iTunes.

The preponderance standard is also a bit ridiculous in recent years. I'm still appalled that OJ can be found innocent in criminal court, yet be held liable in civil court, under what amounts to double jeopardy and a fairly cruel/unusual punishment, thanks to 12 more dumbass jurors.

The civil courts are basically becoming a tool to sidestep the 8th Amendment.

Whether or not "it is written" is not as important as "should it be written that way" and is how I always approach opinions on these situations. This country would not even exist if we'd simply done things as written. Unfair taxes? Boston Tea Party? Bueller? Anyone, anyone?

[Nilfennasion]

Copyright in the future will only be useful for corporations to bash other corporations for large scale violations.

Not quite.

Copyright was originally written with the intention of protecting folks like myself. You know, those people who make original pieces of work with the intention of distributing them to others in the vague hope of financial reward? It sounds pretty absurd with the state of copyright law being what it is now, but to give a more concrete example of what I mean, copyright as a legal concept was designed to protect people like Paul McCartney or Tim Burton et al. This is because without the attendant expectation of financial reward, nobody will want to create things. I cannot stress that last point enough.

Suppose for example you sit down at your computer night after night for a month or two, typing what eventually becomes a 100,000 word document. This document reads well. So well, in fact, that professional editors who read it take it to their boss and say that this could sell a few million copies. Copyright is the law that keeps them from stealing that document away from you and printing it with all royalties from sales going to the estate of some guy who has been dead for five hundred years. It also stops other publishing houses from printing exact replicas, flooding the market, and devaluing your work, without your permission. It also gives you some measure of say in what creative talents in other industries such as film can make using that document as a basis.

I used writing as part of my example for two specific reasons. One, I am an author and have some experience in the process of getting written material into print. Two, it is the one major creative industry where the issue of who owns the work is completely cut and dried. This is an important point. You see, unlike in music or film, every publisher and author knows the score right off the bat. When a publisher agrees to print a novel, they know that the author owns the copyright to the manuscript. The standard procedure is to enter into an agreement with the author. In exchange for giving the publisher the exclusive right to print and distribute the writing for a certain period, the publisher compensates the author with an upfront fee plus a certain percentage of every book sold.

What a lot of people are angry with the music industry about at the moment is that musicians are getting screwed so badly that authors look at musicians and think "suckers". In the music industry, the law as applied states that the record label owns the artist's work until the copyright expires. Which, given the constant manner in which the labels ask for extensions, might be never. The artist's grandsons will die before the day the record label is finally forced to cough up the copyright to the artist's work. Not to mention that the record labels constantly shaft the artist out of their rightful share of record sales during the copyright period, anyway. And the ridiculous part of it is that in this whole deal, the record label assumes exactly none of the risk involved in taking the work to market. The artist sat down and wrote music, played it, took it on the road, and performed it with the risk of failure plus all that entails. The label simply sits there and waits for the artist to come be exploited.

So why it only seems to surprise people who work in legal circles why people feel the record labels deserve to be stolen from is a question I would like to see answered.

[Midzuki]

So the big question is:

For whom have the legislators been working for?

Not for the actual creators of the so-called intellectual property,
granted.

%%%%%%%%%

[Midzuki]

http://strategis.ic.gc.ca/epic/site/crp-prda.nsf/en/rp00523e.html

====================

[MOVIEGEEK]

Although I think the fines are rediculous for such a offense I still think she is guilty of copyright infringement.This judgement is not unusual and the RIAA will continue to file suit in the future,if you want to be safe don't download music and especially don't upload music.

[videobread]

I agree, to be safe don't download and especially don't upload music.
I just hope these suits don't become a cottage industry. It will really screw up a lot of peoples lives.

[Teutatis]

I agree, to be safe don't download and especially don't upload music.
I just hope these suits don't become a cottage industry. It will really screw up a lot of peoples lives.

And don't buy any RIAA crap.

[serega]

The problem I see that they also can go after person bought CD and ripped songs to listen on his/her IPOD or MP3 Player. Where will this stop?

[nwo]

and if the MPAA & RIAA keep winning, how long before downloading anything from the internet is seen as a crime as any file on any server could be violating copyright.

[MOVIEGEEK]

And don't buy any RIAA crap.

I guess that means no store bought CD's or legally downloaded music.

[adam]

The problem I see that they also can go after person bought CD and ripped songs to listen on his/her IPOD or MP3 Player. Where will this stop?

That is entirely legal. (17 USC section 1008.) Uploading those mp3s on the internet to someone else is what is an infringement.

[jagabo]

The problem I see that they also can go after person bought CD and ripped songs to listen on his/her IPOD or MP3 Player. Where will this stop?

That is entirely legal. (17 USC section 1008.) Uploading those mp3s on the internet to someone else is what is an infringement.

I thought ripping CDs was only legal when using Audio CD-R media where the media is taxed to cover "royalties". So portables that don't use CD-R media would not be legal?

[Nilfennasion]

The US government has so far provided citizens the right to make a copy of the media that they own for backup or for use in situations where the original media might easily be destroyed. In-car playback being an example that comes to mind. And the major labels fought tooth and nail to try to take that away at one point, too.

[satviewer2000]

Whew, good thing I live in Canada, where downloading is still legal (but apparently not uploading).

Anyways, I doubt that she'll actually pay this judgement, because either she will declare bankrupcy, or the RIAA will probably come to some kind of deal with her, making her appear in propoganda ads which will say that "Piracy is illegal and bad for your health and your wallet, bla bla bla".

[Nilfennasion]

In 1999, Stanley M. Glazier, a Congressional staff attorney, inserted, without public notice or comment, substantive language into the final markup of a "technical corrections" section of copyright legislation, classifying many music recordings as "works made for hire," thereby stripping artists of their copyright interests and transferring those interests to their record labels.

I think right there is all the evidence I need to support a theory that runs along the lines of "when in doubt, the RIAA is evil".

But to get back to topic, downloading without the express consent of the copyright owner is not and never has been legal.

Also, with legal chicanery like what I described in the quote above, I suspect there will be a long and involved appeals process. Not to mention the old question of how much the RIAA spent on legal fees in order to get this judgement in the first place.

[MOVIEGEEK]

Also, with legal chicanery like what I described in the quote above, I suspect there will be a long and involved appeals process. Not to mention the old question of how much the RIAA spent on legal fees in order to get this judgement in the first place.

True I doubt the judgement would even pay for four years of their salary but I imagine the defendant's legal fees were high also,unless her attorneys were working pro bono.

[Teutatis]

And don't buy any RIAA crap.

I guess that means no store bought CD's or legally downloaded music.

For the most part, yes. Not many alternatives out there. And that's the way the want to keep it.

[Nilfennasion]

http://www.riaaradar.com/

So far, I have entered six band names from my collection in there. Only one of them was reported to have the RIAA taint, and that was because of how common the name was. The actual artist I was searching for only came up once in all the matches I looked at, and it was RIAA-free. The RIAA wants you to believe no alternatives exist. That is why they are so zealously trying to stamp out MP3-trading. If I were to divulge the contents of my sound files directory to everyone here, a lot of people would be walking away with a few non-RIAA artists in mind for a future shopping trip.

[jagabo]

Arse Technica has a nice post mortem:

http://arstechnica.com/articles/culture/riaa-first-judgement.ars