June 22, 2009

Don't stop believing in the RIAA's capacity for evil

Another file-swapping lawsuit, another outrageous verdict. Something's deeply wrong with the laws controlling copyrights

Stop me if you've heard this one, but: Illegally downloading music files is probably not a good idea. And if you don't believe me, there's a 32-year-old Minnesota mom who might convince you otherwise.

Last week, a second jury convicted Jammie Thomas-Rasset of using her Kazaa account to illegally download 24 songs. The actual number of songs she allegedly snagged is roughly around 1,700, but she got sued for just these 24 little ditties.

[ Brush up on the Jammie Thomas/RIAA case -- through the eyes of Cringely -- in the earlier post "Lawyers, guns, and the RIAA" | Stay up to date on Robert X. Cringely's musings and observations with InfoWorld's Notes from the Underground newsletter. ]

The first jury found her guilty and assessed a fine of $222,000, or roughly $9K per tune. Jury No. 2 decided jury No. 1 simply didn't appreciate Vanessa Williams or Journey enough, and upped the ante to nearly $2 million, making those songs worth $80,000 a pop.

I admit, "Don't Stop Believing" does sound better if you haven't heard it for a while, but is it $71,000 better? That's kind of hard to swallow. Reactions from the blogosphere ranged from "insane" to "friggin' insane" to words I am not allowed to repeat here because there might be children present.

First, let us stipulate for the record that the defendant is not the sharpest knife in the drawer. She's more like a spoon, or maybe a plastic spork.

Judging by what I've read of her defense (Ars Technica has served up a lovely summary of the case), Thomas-Rasset's attorneys didn't deny music files were downloaded to her computer. They simply tried to claim the ex-boyfriend did it, or maybe the ex-husband, or maybe gremlins snuck into her house in the middle of the night and logged on to Kazaa using the same online handle she's used for 15 years.

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dmjames 22-Jun-09 8:40am
1 reply
Cases like this, where the punishement far exceeds the crime, should be prime candidates for jury nullification: http://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States http://fija.org/category/jury-nullification/
raargh 23-Jun-09 10:15am
Hear Hear! Fully Informed Juries are one of the pillars of freedom. In fact, with all the attacks on liberty, they may be our ONLY option. More info here: http://fija.org/ BTW, my hatred for the RIAA caused me (many years ago) to stop buying any new CDs, MP3s or other content. I just listen to my old stuff. Sad, but I won't contribute a thin dime to anything that might fill their despicable coffers. Raargh
BitHerder 22-Jun-09 9:03am
1 reply
Couple of points: 1) Ms. Thomas-Rasset didn't just download the files in question - she made them available for others to download. 2) Would I be as "evil" if I were to sue someone for stealing and making available to others the programs I write? 'Cause I'd sure hate to be evil, but I make my living writing these things and I can't just give them away for free.
Regaug 22-Jun-09 2:13pm
1 reply
Your points demonstrate two popular myths that the RIAA uses to "evil" ends: 1) Most defendants in these suits are not computer-savvy, and have no idea they are sharing the songs; they just think they are downloading. Of course, ignorance is never an excuse with the law, but shouldn't intent affect punishment? 2) Sure you should get paid for your creativity, but this isn't about the authors of the music, it's about the RIAA and the record companies getting *their* cut. In the age of the Internet, who needs 'em? That's what this is all about.
BitHerder 22-Jun-09 2:22pm
I'll give you #1 - it is easy to not notice that you begin seeding after you finish a download. But on #2, I'm going to stick to my guns on this one. The RIAA and the record companies are the holders of the rights to the material, just like I'm the holder of the rights to my software. The law doesn't provide for the "they're a big evil company who we hate, not like the little good guy programmers" difference. Rights-holders are rights-holders, and the law applies equally to all (or none, if we erode it).
Accounting IT Guy 22-Jun-09 9:25am
1 reply
I understand a punishment is due, but honestly.. 80k per song? Thats unrealistic. I bet the woman hasnt even made 80k in a single year, let alone a group of years combined. She should either be jailed for a reasonanable term.. 1-2 years? Or perhaps common sense should be used to evaulate her actual income, after taxes, and then determine a realistic amount to garnish from her wages that will actually teach her a leasson and allow restitution for her crime. They better not hold their breath waiting for her to pay the bill! (or maybe they should)
bwomble 22-Jun-09 5:31pm
A reasonable term for stealing 24 songs is 1-2 years? Get a grip on reality, you are as bad as the jury in the case.
torresongs 22-Jun-09 10:03am
The same people that determined that this was a justifiable sentence must be the same ones that extended junk loans to people that couldn't afford to pay them! What has happened to people's perception of the value of dollar in this country? This is a joke! They might as well have fined her a "BAZILLION-GILLION" dollars! I believe that artists should always be paid for their work. I also believe in karma. The recording industry shafted an innumerable number of artists over the years. When I think of all the stars that died penniless due to bad management and shady contracts, I have to think that the industry is getting it's comeuppance. Many labels had the opportunity to get on the cyber-sales wagon years before file-sharing and iTunes became popular. Some of them told Napster's inventor Shawn Fanning to take a flying leap at the moon when he first approached them with the idea (and we all know how that ended!).
Trencher93 22-Jun-09 10:11am
1 reply
"using her Kazaa account to illegally download 24 songs" This is NOT TRUE. Thomas was convicted of disseminating copyrighted works, not of downloading files. Can't journalists get the facts straight? Not that I'm picking on RXC, because many, many people GET THIS WRONG. No one has ever been convicted of illegal downloading. The only cases so far and the only convictions so far have been for illegally disseminating copyrighted works.
Robert X. Cringely 22-Jun-09 11:59am
2 replies
you are totally right, trencher93. I should have said 'using her Kazaa account to illegally share 24 songs.' though downloading is also verboten, the RIAA has focused on uploaders (aka, sharers) in its suits. though it's not clear that anyone besides Media Sentry, the digital gumshoes hired by the record companies, actually downloaded any of the songs Thomas-Rasset shared (if I understand it correctly). all better now? -- rxc
philmarcus 22-Jun-09 12:42pm

Although many reports, including RXC's say it was a fine, it was not, but a civil judgment, albeit for _wilfull_ infringement. That means knowing the material belonged to someone else and not just downloading but copying it, i.e., handing a copy to someone else.

It was, however, not a jury finding of guilt beyond a reasonable doubt, but that more likely than not defendant wronged the plaintiff. her screwy story probably did as someone said PO the jury.

The judge may well decide the evidence does not support willfulness and thus lower the damages to $30K per song as the statute says, or enter an order that says to plaintiff "Take this lower amount X or we will have a retrial" (a "remittitur").

So it is not over. I don't think plaintiff cares about the money or will make more than a token effort to collect it (jail, BTW, is not available to do the collecting). They wanted to frighten downloaders. They did.

VideoFan 23-Jun-09 7:01pm
“Trencher93” said that “no one has ever been convicted of downloading”, and you made a reply that he was correct, the person in question used her Kazaa account to share (upload) files and that is why she was sued. A question that I would really like to see an answer to is: I can go to my library and check out CD’s DVD’s (and of course books) for free. My buddy can have a CD or DVD and loan it to me. However, if I download a song or video and listen to / watch it I am a criminal. If I get it from the library or a buddy I am not. One difference is that I give the CD, DVD back to the library or buddy when I am done. What if I were to upload the file to whoever I got it from when I was done. Is it legal then? Could this be a way to stop the RIAA? Just swap files back and forth from legal owners to "borowerers". Or, what if the downloaders just agreed to erase the file after they listened to / watched it? Is the crime in keeping the copy?
cking2 22-Jun-09 10:21am
I am going to go out on a limb and say that I think NO punishment is due. Really! I see the 'sure, she should get some punishment' posts all over the internet...but let's face reality. I probably have a few songs in my collection that are illegal. (not technically but really) I did not download them off the internet but either someone did or they are part of someone's ripped collection. (Yes, borrowing is stealing folks just like 'rolling' through a stop sign is NOT STOPPING--the law does not have shades of gray.) I would bet that millions and millions of people in the USA have illegal media or their kids do. Who among us would be happy about or accept getting 'caught'. This is simply BS! We cannot go on with the they got caught and have to pay the piper (but sure glad it aint' me!)...tune. -c
infoman 22-Jun-09 1:15pm
There's a great song about this whole issue by Weird Al Yankovic. I'd paste the words here, but I don't want to get sued. ;) But you can read the lyrics here: http://www.com-www.com/weirdal/dontdownloadthissong.html
fishersystems 22-Jun-09 1:40pm
1 reply
I think RXC asked the wrong question. Most reasonable people would agree that the artists deserve compensation for their talent. The article subhead said something's deeply wrong with the laws controlling copyrights. This should be the focus of our anger and our action. The Electronic Frontier Foundation has been working for years to get the especially obnoxious DMCA repealed or declared unconstitutional. In recompense, they have proposed a system similar to the one currently used by radio stations. A log would be kept of free downloads, as one is currently kept of songs and other materials played by broadcast radio stations, and artists would be paid royalties out of a tax or fee based on ISP revenues. This is similar to the model currently used for blank videocassette sales as a result of the Betamax decision. We would all pay a little more for Internet service, artists would be automatically compensated, and the lawsuits would go away. But wait! There's a huge problem! Artists would be directly compensated for their material! RIAA and the major media companies would be put out of business! Can't have that.
rcprimak 23-Jun-09 1:54pm

Keeping a log of what files users download may seem like a practical idea, but how do you ID individual computer users? Computer IDs and IP Addresses do not identify individuals.

And even if downloads themselves could be traced and logged, how about uploads? What kind of fingerprinting would be possible, that the exact origin of each fileshare could be identified and logged? This is a very different game from compiling aggregate userdata, as Google now does.

rdhalste 22-Jun-09 2:00pm
First, all of the music I have I paid for, but since the RIAA resorted to their heavy handed and what would normally be considered illegal tactics I have not purchased, nor downloaded any music. (Now days if you want it, legal music downloads are a buck or less) The RIAA has been sticking it to the small artist for years so I seriously doubt any of the artists on the tunes involved will see a cent unless they are very well known. Remember this was a civil suit not criminal. No intent or crime was proven although I'd not doubt she really did share a lot of songs. That being the case then fair market value (they sell for bout a buck each) of those songs *proven* to have been uploaded would be fair and equitable. It is my hope that that Tenenbaum wins his lawsuit and squeezes the RIAA to the point where the members of the board have to sell off their holdings including their shorts to pay. I'd also like to see their criminal activities addressed by a grand jury. Having said all this I don't believe in stealing songs or software (I'm a retired programmer), but with the tactics the RIAA has been using I have absolutely no sympathy for them. Also any settlement they do get should be divided in total between the wronged artists. The RIAA proper shouldn't get a cent.
tcapun 22-Jun-09 6:50pm
Copyright infringement is agreed upon theft.

The real issue at play here, overlooking just how incredibly gullible, stupid and greedy, lawyers can make a random group of twelve well meaning citizens, is punishment commensurate with the crime, regardless of the religion or gender of the criminal, albeit age is an exemption for legal minors.

The question of this jury and this punishment probably trips everyone's obscenity switch, except the RIAA which gets a standard deduction for corporate greed in excess of usury especially in this down economy struggling with only grotesque bailouts to show for profit.

But, let us consider for a moment, our alternatives, the Lebonese Handshake... "you stole, give me your hand, chop... you stole again, give me your other hand..." or the Wise Guy on your door step... "Bang!" or the United States Federal Government... "hey, you were smart and worked hard and made lots of money... give us a larger chunk so that we can buy votes and bomb children, if you don't mind"



Theft is theft. The reasons are moot, except for starving to death, which only guys like Stalin don't understand."
vwal 22-Jun-09 10:22pm
$2 million fine is completely out of proportion with the crime committed. If she had stolen physical goods worth $24, or even $240 (considering possibly more than one person downloaded the songs she had allegedly made available for others to download), what would be her sentence? First time offender, perhaps few thousand dollar fine. Perhaps community service. Perhaps probation, though unlikely. I find it outright scary that the life-destroying $2 million fine actually gets support from anyone besides RIAA. Considering how common the 'crime' of downloading the songs from the Internet is, and how many musicians themselves support the idea of people being able to download songs from the net, I would say that if downloading songs from the net continues to be classified as a crime, then it would be fair to set a fine for it akin to a speeding ticket. A fine from a few hundred to a few thousand dollars would hurt most but it would not destroy lives as a $2 million fine does. Serious crimes need serious punishments, but downloading a song from the Internet is not one of them.
JoeBtfsplk 23-Jun-09 5:30pm

Since the "crime" was making "Iris" by the Goo Goo Dolls available for download, wouldn't it be a suitable punishment to be made to her listen to it as many times as it can be proven that it was downloaded from her account?

ollies-gma 7-Jul-09 7:07am
Wasn't the RIAA formed from the musicians as an entity so they didn't make their fan base mad? It is made to look like an agency representing the music industry but it is the musicians that are tired of performing, paying high studio costs, marketing costs and then people are stealing their end product. Of course, the fees and penalties aren't as great if you walk into your local Walmart and steal the same amount of music - the problem comes from making it available for the millions of Internet users for free. I believe in paying for what you want to own - in the mean time - I have my own playlist on nutsie.com. I have heard new artists and have bought their music as a result of the online radio station.

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