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Recording industry puts stake in ground with Jammie Thomas case

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But it's also setting a legal precedent that has significant problems. The United States Department of Justice recently filed a brief (pdf) supporting the position of the movie and recording industries, urging that both the judgment and the fine against for copyright infringement against Jammie Thomas be affirmed.

Now, I am no fan of copyright infringement. Movie studios spend millions creating and marketing copyrighted works, as do record companies, publishers and others, and they are entitled to protect their works from harmful and infringing activities. Copyright infringement, of songs, music, software, books, articles, and even user generated content costs the bottom line, injures reputations, and in the long run may - and I emphasize may - discourage the creation of new copyrighted works. At least it may discourage their digital distribution.

I am also willing to accept the jury's finding that Ms Thomas acted willfully, and that the songs she downloaded were posted on Kazaa for others to download. Perhaps millions of people downloaded the songs she posted, perhaps nobody did.

Yet, the law has still not caught up with the technology.

Digital devices by their nature make copies. Digital cameras take pictures, including pictures of pictures and pictures of copyrighted works. Take a snapshot in Times Square, and you have infringed about 200 copyrights, more if you use a wide angle lens. Now, I am not suggesting that you will be successfully sued, or that you might not be able to take refuge in the "fair use" doctrine, but there is the potential for billions of dollars of infringement liability for genuinely innocent conduct.

Often times, your liability may not depend on what you do, but what technology you use to do it. Thus, if you buy or rent a digital video recorder from your cable TV or satellite provider, and record television shows for later viewing, you are OK. But if that DVR is located at the cable TV company and not in your living room, you have infringed. Watch a DVD and turn down the sound at the naughty bits, you are OK. Take out the naughty bits, you are creating an unauthorized derivative work and have liability. Stream a song to your cell phone, OK; download it, a felony - even if you immediately delete it.

Our ability to track everything you read, view, look at, download, not only enhances your potential copyright liability, but the ability to enforce such liability. ISP's, employers, colleges and universities, phone companies, search engines, online merchants, credit card companies, online photo companies, peer to peer file sharing providers, user generated content sharing entities, social networking sites and others maintain records of our viewing, copying, forwarding, and other potentially "infringing" activities.

This information may be subpoenaed, demanded, requested, or voluntarily turned over with our without our consent. Thus, every day we may commit millions of dollars worth of potential infringement, and we are keeping detailed records of exactly what we did.

And heaven help the poor person to whom the digital trail erroneously points. If the ISP's records show that your IP address committed an infringement, it can be forced to shut you down, disable your access, offload your content, and turn you in to the intellectual property police.

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