Recording industry puts stake in ground with Jammie Thomas case
Copyrights and wrongs
On 1 October, 2007, Jammie Thomas - a single mother living in Brainerd, Minnesota - was sued in civil court for copyright infringement by the Recording Industry Association of America. Three days later, the jury returned the verdict; Ms Thomas was liable for willfully infringing the copyrights on 24 songs. The fine: $222,000.
Once the case got whittled down, the jury had to consider whether Ms Thomas was using a peer-to-peer network to download those 24 songs. The jury found that she had used Kazaa and had both downloaded the songs and in the process "made available" the songs for downloading by others.
Thus, for each song, there were several acts of infringement: downloading, storing, copying, posting ("making available"), and potentially aiding and abetting of the copying by others. Many of these terms overlap each other - for example, you can't download a song without copying it - even streaming a song copies it.
It could have been worse, much worse. Had she been prosecuted to the fullest extent of the law, Ms Thomas could have been fined $3.6m plus been forced to pay Capitol records' attorney's fees and costs. And that is just the civil fine. She could also be forced to pay a criminal fine of $6m and make restitution to the record companies, as well as serve 120 years in jail. In fact, had she previously been convicted of infringement - a matter of timing of the prosecution - she could have been sentenced to 240 years in jail. And that is just for 24 songs.
Just highlighting the possible sentencing demonstrates that there are several problems with the Thomas case. First and foremost, it really does not recognize - as current copyright law fails to recognize - the way normal, and presumedly law abiding, people use the internet. Indeed, the odds are very good that you committed a copyright infringement this morning, and, if not, you will by the end of the day.
As University of Utah law professor John Tehranian points out (pdf), mundane activities like downloading, copying, automatically replay to, or forwarding emails could be read to constitute copyright infringement. That's right - almost all emails are copyrighted.
Tehranian points out that just copying and replying to 20 emails could lead to $3m dollars in statutory damages. So too are such things as forwarding family photographs or pictures of the company holiday party that you didn't take, singing "I Wish You a Merry Christmas" at the party and videotaping the singing of the song, or posting the latest "Dilbert" comic on your cubicle wall. All create potential civil and criminal infringement liability.
Indeed, Tehranian notes that his hypothetical infringer, doing nothing more than the average person does, and not including any peer-to-peer file sharing, could have potential annual statutory civil liability of more than $4.5bn. And, of course, that is just in the United States. The internet, being a transnational medium, raises the specter of infringement liability in many countries at the same time.
So in a way, Thomas got off light with a judgment of only $220,000.
I keep getting the feeling that, in and amidst the furor of protectionism and punishment, the purpose of copyright and patent has been lost.
Intellectual property rights are not about the protection of profit making and information ownership.
Rather, intellectual property rights are an elaborate bit of bribery offered by society, through the mechanisms of law and government, as an incentive for creators and inventors to share their creations and inventions with the rest of us.
We, as a society, offer to the creators of these works, or their duly authorized designees, the promise of exclusive control over these works, for a period of time, enforced by the promise of legal remedy should that control be illegally infringed upon during that period of time.
In return for this protection, at the end of that period, all rights of usage pass to the public.
It's as simple as that.
To @P. Lee: A digital play-back device only buffers a relatively small portion of the work being played and not the entire piece. This is acceptable under current US Fair Use guidelines as you are not creating a "copy" but only "sampling" the work. Also, I believe manufacturers of CD and DVD players must pay a license for each such device. This allows us, as consumers, the "right" to play the media we purchased.
To Darling Dearest Jammie in a Jam: Were your "copies" in a lossless format, such as FLAC or Monkey Audio? No? You mean to say your files were in MP3 format? Then they weren't true *copies;* they were lossy "representations" of the original work. This is no different than recording over-the-air broadcasts to cassette tape for personal use. Ask the judge for a summary dismissal and to vacate all penalties. And while your at it, also ask that the judge recommend the RIAA nolle prosequi any current and future cases involving MP3s.
To the RIAA: Do you really think alienating consumers is ultimately good for your business?
In the 1760s the thing to do if you were hip was to go to Rome during Holy Week to hear Allegri's Miserere in the Sistine Chapel. This was the only place you could hear the work performed and only 3 authorised copies of the manuscript existed. Copying it whole or in part was punishable by excommunication. Mozart, aged 14, heard the work and wrote it out from memory, but being a good Catholic, kept it private. However, an non-Catholic Englishman called Burney published a version in 1771 and after that copies appeared all over Europe.
So a) this is not a new problem, people have been trying and failing to control the distribution of music for centuries b) far from destroying music and musician's livelihoods, copying and embellishment of existing works has resulted in a far richer heritage in the classical music tradition than anything produced by the RIAA c) the RIAA will be pleased to know that they are acting like mediaeval popes - not that they would have the faintest clue what that means.