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What the RIAA Judgment Means to Me

By Jonathan Bailey • Oct 5th, 2007 • Category: Articles, Punditry

Typically, on this site, I avoid talking about general copyright news and instead like to focus my words on news, tips and tricks that will help Webmasters protect their content. Instead, I try to relegate such news to the Copyright 2.0 Show where I can cover a week’s worth of news in under an hour. That sames time and energy.

However, yesterday’s news that the jury verdict had come back in the first RIAA jury trail, Capitol v. Thomas, seems a important enough of an occasion to warrant at least a few words, especially considering the $222,000 judgment against the defendant.

Even before I had finished reading the article though, the spin machine had already started. Lawyers opposing the RIAA said that the case would “almost definitely” be overturned on appeal. The EFF has said that “copyright laws need to be adjusted to reflect today’s reality”. Finally, the RIAA, has said that the case “does send a message… that downloading and distributing our recordings is not OK.”

With so much twisting and warping of the facts on both sides, the only thing that is clear right now is that this issue is far from resolved and that this case has done nothing to settle the underlying issues.

Sad as it is, the worst may be yet to come.

A Case Not About Me

As a supporter of copyright law, at least to a reasonable degree, I am hard pressed to consider this case a win for copyright holders. It is indeed a win for the RIAA, the record labels it represents and, I suppose, the artists that are signed with them. However, I completely fail to see how this is a win for me.

I’m the little guy. I have a lawyer and I know many attorneys, but I don’t have the resources to sue everybody who infringes my copyright. I can’t have my team of attack lawyers track plagiarists all over the country and start shotgunning out subpoenas and filing lawsuits for everyone that takes one of my works.

The best I can do, reliably, is secure takedown of infringing material and work to encourage reuse of my work that supports myself and my goals on the Web. This case, and this outcome, could not be any farther removed from my reality and my needs if it had taken place on another planet. I will never see any benefit from it.

The sad truth is that, even though I don’t share files, the odds of me being sued by the RIAA are higher than me ever filing a series of RIAA-like lawsuit. I am more likely to have my wifi connection hijacked by a bittorrent junkie than I am to magically find myself in a position where I can start tossing out subpoenas like rock candy.

Of course, even if I did find myself in such a position, I wouldn’t likely engage in that behavior anyway. I would target the worst, the plagiarists who have made a name for themselves using my work, but stick to my existing strategy for the rest, using a combination of Creative Commons Licensing for most and takedown notices for the plagiarists and other bad faith operators.

In short, I can envision a universe where I get sued by the RIAA or MPAA, but I can not see one where I behave like them. So as they are drinking champagne at their victory, I, and millions of others of rightsholders, are left to figure out where do we go from here?

Not About the Law Either

Of course, this case and the war over it has never been about the law either. It is pretty well understood that file sharing is illegal and few have risen to challenge that. Instead, most of the challenges to the RIAA have centered around whether the RIAA can identify a person via an IP address or what element of file sharing actually constitutes infringement (making available vs. downloading).

Those who have opposed the RIAA in the courtroom, including those who have won, have done so not by challenging the RIAA head on, but by either trying to deflect the blame to another party or finding a technicality in the law. Though the RIAA has been wrong and there have been cases where those tactics were justified and appropriate, much of the time it is just an attempt to find a way out for that one defendant with little thought about the others.

However, when I look at the two extremes in this case, the record labels and the pirates, I have no love for either. The RIAA uses some of the most abhorrent legal tactics in history and the pirates want to strip me of what few protections I have with my work and seem to degrade the time and expense I go through to create the things I do.

One side claims to be fighting for my right to control my work, the other claims to be fighting for my freedom. Neither could be farther from the truth. Both sides are mired in their own self interest and neither represents myself or the millions of other small copyright holders.

We are the writers, musicians and artists who want to allow some sharing but also need some level of control over our work to build our careers. We are centrists, people who want to modify copyright law, but not abolish it. We want to strengthen some protections, such as moral rights, but are willing to weaken others, such as the length of the copyright term. We don’t want to bankrupt single moms but we don’t want to be bankrupt ourselves.

We are left without a voice and this case only accents exactly how powerless we really are. We are passengers on an airplane being piloted by one group of extremists while another tries to hijack it. Me, I just want to get home but I have no idea where this plane is going to land.

The only thing that I do know is that we are in for some rough times ahead.

The Case at Hand

Getting back to the case at hand, the odds of it being overturned on appeal are not as great as some would hope. The controversial “making available” jury instruction is not an anomaly and is more than defensible. Even if we assume that and overturning is likely, we can’t just put our feet up and rest assured it will happen. We have to accept the reality of today while we hope for the best.

But the reality of today is very bitter. Because, despite all of the talk of freedom and justice, what we really have is a 30-year-old single mother of two, Jammie Thomas, who has been saddled with a nearly quarter million dollar judgment. There is a human being at the center of this case and, more than anything, she should be in our thoughts.

Part of me has to agree with Chris Castle, a copyright attorney and former music executive when he said, “This woman found lawyers who tried to make her the Joan of Arc of illegal downloading. And are they going to write the check?”

When one looks at the evidence, this was clearly one of the RIAA’s strongest cases. The IP address information was fairly clear, she had used her Kazaa name elsewhere and she had allegedly attempted to destroy her hard drive after learning of the lawsuit. It seems clear that fighting back, in her case, was not in her best interest and her doing so will also negatively impact other cases that may have stronger arguments.

I am not a lawyer, but even I can see that this case should never have made it to trial. If anyone had been thinking about her best interest or the best interest of the issue at large, they would have encouraged her to settle and make room for other cases with less compelling evidence. Instead, they’ve done as much to ruin her life, and the life of her kids, as the RIAA.

My only hope today is that Ms. Thomas and her family will not be too harmed by this verdict and that the end result does not have consequences that do not fit the crime.

Conclusions

To quote Metallica (and inject some irony) “There ain’t no heroes here.” Right now, there are only villains and victims. Even then the line gets blurry fast.

Not only are people being hurt, possibly for the rest of their lives, but the vast majority of rightsholders are not being represented and the entire drama works only to serve two extremes in a very broad and complicated discussion.

Two sides, directly opposed to one another, set the dominoes in place and knocked them over. Sadly, the most recent one fell on a single mother with limited means. Where will the next one fall? Will it land on a small artist trying to make a meager living? Will it land on a Webmaster trying to protect his content from scraping? What about a poor college student already saddled with student loans? Who gets hurt next?

It could be you, it could be me, it could be all of us.

In 2005, Professor Lawrence Lessig gave a presentation entitled “Who Owns Culture?” where he called for a “war against war” and for people to “sue for peace”. Now, two years later, we see not just the technological and the cultural implications of such a war, but also the human cost.

If there ever were a low point for copyright law in the time that I have been alive, today would be that day. It’s not because the RIAA has won, but because we have crossed a milestone from which there is no going back. We are now ruining lives and, sadly, Ms. Thomas will likely just be the first.

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Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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Trackbacks

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    My Thoughts On The RIAA’s Win — October 5, 2007 @ 1:02 pm

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  • [...] food for thought… What the RIAA Judgment Means to Me: With so much twisting and warping of the facts on both sides, the only thing that is clear right [...]

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  • [...] PlagiarismToday » What the RIAA Judgment Means to Me PlagiarismToday’s take on the Capito vs. Thomas verdict. Particularly interesting as it is very much a non-partisan view of the case. (tags: capitol thomas riaa copyright court case p2p lawsuit) [...]

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Viewing 7 Comments

    • ^
    • v
    Ms. Thomas ruined her own life. This episode and others like it give me cause to warn teens, parents, anyone who will listen: they could get you. You could be sued or even put in jail. But my advice almost always falls on deaf ears. The seeming anonymity of the Internet mixed with narcissism and a sense of invinicibility, catalyzed by the lure of free entertainment, is too easy for most people to...what? Let me do what I want to do with my own art. Stop stealing from me!
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    It is going to be rough for all individuals, agreed. This also sends a message to bandits, quite how loudly and clearly is yet to be seen. One thing is becoming crystal clear. The profession to be is the legal one. They are the only ones who always come out of it with money in their pockets. When morality and ethics become words of no consequence, what else can one expect. I share your angst.
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    Michael:

    On one foot, I agree with you. There is no doubt in my mind that Ms. Thomas deserves to be punished. I am merely asking for the punishment to fit the crime. She is a single mom who makes a little over $30,000 per year and has two kids. Does a quarter of a million dollar fine really fit? It is the law, I don't argue that, but there is a human element here too.

    If anyone had had her best interests in mind, they would have told her to settle. Settle, pay a small fine (relatively) and move on. With others being settled by the truckload, there was no reason to make this the test case.

    RS: You laugh. But I've got my application to law school right here on my desk...

    Don't tempt me.
    • ^
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    To put this in perspective, she is billed $222,000 for making songs available breaking copyright (and if I read the judgment correctly it was "for making them available" not actually distributing anything---that's like arresting me for possibly providing beer to children because I have a 6 pack in the fridge and people under 21 walk through my house) BUT a school bus driver gets busted for drinking on the job and is fined $482 http://www.twincities.com/ci_7094916?nclick_che...

    Glenn Reynolds (http://instapundit.com/archives2/010264.php) sums it up "One offends a powerful interest group. The other just puts kids at risk." while summarizing James Lileks: http://buzz.mn/?q=node/2693
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    Doug: The issue here is not whether or not copying took place. When you obtain copyright in a work you receive a set of exlusive rights to the work, reproduction is just one of those rights. Another, the one that is relevant here, is the right to publicly display or perform the work. The argument isn't that her "making available" equals copying, that it equals public display and violates that exclusive right.

    So the beer analogy, though entertaining, is a bit flawed in this case.

    There is still a valid legal question about whether or not making available constitutes public performance, but if this issue reaches the supreme court, I have a pretty strong feeling they will rule that it is given their track record in this area.
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    As the victim of copyright infringement on a regular basis, I have to agree with Michael. People who knowingly violate copyright law should be punished. They are STEALING the hard work of others. And not only are they stealing for their own personal use, but they're illegally sharing the property in such a way that the property's revenue potential for its owner is diminished.

    It's clear (and unfortunate) that the recording industry had decided to make an example of Ms. Thomas. A single mother of two is now facing $220K of debt because of her own stupidity. If they'd made their case against someone less likely to gain public sympathy, there wouldn't be copyright champions like you, Jonathan, sitting on the fence about the case. It would be more clear-cut to the general public.

    But to me, it IS clear cut. She's made her bed and has to lie in it. A lesser penalty would not have made the recording industry's point so well. The way I see it, she's fortunate: they could probably have gotten a lot more in the judgment if they'd tried.

    And the lesson being taught is so much stronger: it doesn't matter who you are or how a penalty will cause a hardship for you. If you get caught, tried, and convicted, you'll pay. Period. Creative professionals can only hope that this case will act as a deterrent to stop others from stealing their hard work.
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    Maria,

    I want to be clear that I am certainly not coming out in favor of copyright infringement or in letting those guilty of it go. That would be suicide both to me as a creative professional and as the Webmaster here.

    But I have to believe that this woman was given some terrible advice. She clearly did it. She should have taken the deal, spent 3000 dollars and moved on with her life. Instead, largely at the behest of the anti-RIAA movement, she pressed on and now is saddled with nearly a quarter million dollar judgment.

    I believe that she deserves to be punished and severely, but that amount is unreasonable for someone in her position, especially when she has two kids.

    I agree that Ms. Thomas did something wrong and needs to be punished. I just think the verdict might be out of balance and that she was set up as a sacrificial lamb.

    She made poor decisions, but I think her lawyers made the dumbest ones of all...

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