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.
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.