I Want My $2 (Million)!
Nearly $2 million dollars for downloading and sharing 24 songs is a ton of money. Even the RIAA was shocked by the amount. Perhaps the jury was just upset for having to listen while the plaintiff’s played Richard Marx’s “Now and Forever.” Twice.
Cue whirlwind of hatred directed toward the RIAA. A lot of it justified.
But for those of us with level heads, it’s important to keep a few things in mind.
This was a jury trial for copyright infringement. The RIAA wasn’t on trial, its tactics weren’t on trial.
The issue wasn’t whether their litigation strategy is wise or just. The only question was whether Jammie Thomas-Rasset infringed on the copyrights owned by the plaintiffs.
The jury, after hearing all the evidence, including testimony by Thomas-Rasset herself, concluded that she did. Remember, this is a civil trial. We’re not talking about “guilt beyond a reasonable doubt.” We’re talking about a preponderance of the evidence standard. Was it more likely than not that Thomas-Rasset infringed on the copyrights in question?
Her defense was basically “it wasn’t me.” Twelve people didn’t believe her. The same thing happened in her first trial (which was thrown out because of an error by the judge, hence this latest retrial). That’s two juries that didn’t believe Thomas-Rasset, and two sets of lawyers who couldn’t convince them otherwise.
You can argue about the RIAA’s tactics, the validity of the copyright laws (and the constitutionality of the statutory damages that led to such a huge verdict), but none of that changes the fact that under the current US copyright laws, Thomas-Rasset was liable for copyright infringement.
Some of those issues may soon be addressed. Kiwi Camara, one of the lawyers for Thomas-Rasset, has said they are considering an appeal of her verdict, and possibly a class action suit against the RIAA itself for its litigation strategy. Either one would address those issues more substantively.
Ironically, on this same day, a report was released by economists Felix Oberholzer-Gee and Koleman Strump which concluded that file sharing and unauthorized music downloading do not have a substantial effect on music sales. Other reports have come to similar conclusions.
That doesn’t change the fact that what Thomas-Rasset did was against the law. Even Creative Commons founder Lawrence Lessig, who has been called a leader of the attack against copyright , mentions time and again in his books how he feels that p2p piracy – that is, downloading a song that you intended to purchase because you didn’t feel like paying for it – is wrong and against the law. It may be an unwise strategy to sue your customers as the RIAA has done. It may be a flawed business practice to limit customers from being able to sample what is considered an experience good before they purchase it. And it may simply be impossible to stop due to technology. But it’s against the law and this trial was not going to be the place where that would change.
Fortunately, there is good news for those who are outraged at this verdict. The possible appeal and class-action suit mentioned above may, if pursued, be successful and reverse the $2 million verdict. A similar filesharing lawsuit is set for trial, and the defense team, including famed Harvard Law professor Charles Nesson, has promised to fight back against “the full might of [the RIAA's] lobbying and litigation power.” It’s rumored that Nesson will be joining Kiwi Camara in the possible class action suit.
As for independent musicians, perhaps this story is another chapter in the book “The Music Business and the Internet: What Not to Do.”
image courtesy of Earl – What I Saw 2.0
good read. Preponderance is merely a tipping of the scales, and you mention “twelve people didn’t believe her,” that’s even conclusive since in a civil case you only need 3/4ths of the jurors on your side to win.
Thanks Tony. In this case a unanimous verdict was required. (pg 24 of the jury instructions – http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/virgin_thomas_090618JuryInstructions.pdf )
Terry, I’m not quite sure what you are getting at with your comment about “independent musicians”. Independent musicians are simply not in this game because they can’t afford to sue infringers, and they can’t afford to monitor the Internet 24/7 to see who is infringing their work, and they can’t afford to send a number of takedown notices that vary directly with their success.
Chris, I suppose on one hand that depends on your definition of \independent musician.\ For example, Concord Records is a member of the American Association of Independent Music (and Concord CEO Glen Barros sits on the board of the group), but it is also a member label of the RIAA. There are many other labels which would be considered \independent\ by certain criteria that are also member labels of the RIAA.
But if \independent\ labels, and by extension the artists working under them, are defined as labels with no ties to the RIAA, then yes you are absolutely correct. They, and truly \independent\ musicians not tied to any label, do not have the resources to monitor or litigate unauthorized file-sharing.
My comment was meant primarily to indicate that independent musicians should stay away from the overall approach the RIAA has taken: namely, fighting to maintain the control afforded by the limitations of technology in the pre-internet world rather than focusing on how best to incorporate those changes into a successful business model.
I’m certainly not arguing that the RIAA is wrong in protecting their copyright. They certainly have a legal and moral right to do so. I just think they’ve taken the wrong approach for other reasons.
Even by the most conservative estimates (studies commissioned by the RIAA itself), unauthorized file-sharing has only played a small role in the general downturn in album sales. Some of the other factors are beyond the control of the music industry (the general economic downturn during the same timeframe), but others clearly are (most generally, the inability to embrace the changes of technology and consumer behavior over the last almost-decade).
You’re right, I wasn’t clear when I wrote that, but that’s what I meant. While independent musicians needn’t devalue the worth of their intellectual property, their time and energy is better spent connecting with their fans and giving them a reason to buy rather than worrying about the inevitable lack of control that technology has made possible.