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Recording industry puts stake in ground with Jammie Thomas case

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Even when the RIAA, Business Software Alliance (BSA) and Motion Picture Association of America (MPAA) are trying to do the right thing and go after genuine infringing activity, the fact that computers may be a shared resource (with kids and adults using the same computer) or the fact that servers can be hijacked, or people's general ignorance about security makes for potentially serious civil and criminal consequences for people who are doing nothing wrong.

Then there is the problem of derivative liability. Sure, if I download copyrighted songs I should have some liability. But if I do it at work, should my employer have liability? If I do it at school, should the university be forced to pay too? What about the company that makes the software that furthers the infringement? Should they all be forced to pay? Should they also be forced to pony up records relating to my activity? The answer to the latter is probably yes.

One of the biggest problems with copyright infringement is the general sense among those infringing that they are not doing anything particularly "wrong". First, as I noted, there is an awful lot of infringing activity that quite frankly is done deliberately and willfully but not wrongfully.

Part of the problem deals with what I would call the iPod phenomenon. If I went into a Tower Records (OK, there are no more Tower Records, but stay with me here), and slip a CD into my pocket without paying, it's pretty clear I am committing a crime. It's also pretty clear that, at best what I stole was worth whatever was on the sticker, say 20 bucks. That's because I have some physical manifestation of the intellectual property.

On the other hand, let's say my buddy loans me the same CD, and I listen to it without paying. No problem. Now I make a copy of one of the 20 tracks to listen to later. An infringement? Sure. What's the damages? Let's assume that the only way you can get the song is to buy the entire CD. Are the damages $20? One buck? $150,000? Clearly I acted "willfully" when I copied the song, so there is the potential for statutory damages.

Finally, when what I own is just zeros and ones on a digital device (a track on my iPod) and not what is perceived to me as a digital manifestation of that intellectual property, I may feel as if I haven't stolen anything. I don't steal a song when I listen to it on the radio, and I don't feel like I have stolen it when I record it from the radio, even though the copyright law might consider the latter an infringement.

Ultimately, the recording industry is using the copyright law against Ms Thomas to place a stake in the ground. In an effort to prevent piracy generally, they are seeking draconian penalties against this individual. Let's just hope that Scott Adams doesn't try to do the same thing about all the "Dilbert" cartoons on the walls of my office.

This article originally appeared in Security Focus.

Copyright © 2007, SecurityFocus

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