File Sharing, Damages And The Constitution...
from the getting-into-the-legal-weeds dept
Doug Lichtman is a well known intellectual property law professor who is a fairly big supporter of the copyright system. He's reached out to us, because of a podcast he recently recorded discussing the Joel Tenenbaum lawsuit. To be honest, I'd pretty much stopped covering anything to do with that lawsuit, because over the last couple of months, it's turned into something of a circus side-show, with both sides running around and making decisions as if they've never actually been in a court of law before. Even the judge has been making mistakes.However, Lichtman specifically was hoping for the perspective of folks around here on the podcast, because (as he noted in his email), most of his listeners tend to be strongly pro-copyright, and he was hoping to at least find out what those of us less sure of the benefits of copyright think. To be honest, after listening to the podcast twice, it may be a bit too down in the legal weeds for many readers here -- though, if you really are interested in the legal specifics, have a listen. The first part involves Lichtman talking to Charles Nesson himself about the case, followed by three "legal experts" and then a guy from the RIAA who seems to honestly believe that the RIAA's lawsuit strategy was a success because it taught more people that file sharing was illegal. This is wrong on many different levels, since it clearly didn't impact user behavior, and has created other problems, such as the false belief in some that all file sharing is illegal (even of authorized content) and has framed the RIAA as being anti-consumer, making it that much harder for the major record labels to eventually make the shift in business models that are necessary to succeed these days.
The overall "conclusion" that Lichtman comes to is that Nesson and Tenenbaum are likely to lose the case, as precedent suggests that courts will likely find the statutory damages in the copyright act to be within the range of being constitutional. I actually agree that this is the likely outcome, though I find it, and the reasoning behind it, quite troubling. I also hope that, when (if) the case really goes to trial, Nesson has worked up a better argument than he gave on the podcast. While he does raise some good points, a lot of it feels like he only has a superficial understanding of both what's happening and the law itself. When really pressed on legal issues by Lichtman, he resorted to an emotional argument ("it's just a kid clicking on links!") which hardly is legally compelling.
However, in listening to the "experts," it sounds like it would be possible to make a more compelling case against the statutory rates by pointing out some rather simple facts: file sharing, in and of itself, creates no damage for artists -- and thus, the statutory rates have nothing to do with being a "remedy," but have everything to do with being punitive, which would make it a criminal issue, rather than a civil one.
Now, I can hear the copyright supporters (including Lichtman) shouting that it's ridiculous to claim that file sharing creates no damages for the artists -- but that's not what I said. I said, file sharing in and of itself creates no damage. And that's easily proven: just point to the increasingly large number of artists who have embraced file sharing on purpose and who have found that it's helped them earn more money. Then, what you realize is that file sharing combined with a bad business model may create damages, but those damages may be alleviated by putting in place a better business model (again, pointing to evidence of artists who have done exactly that). At that point, the "damages" have gone away. The fault is almost entirely on the part of the artist who picked a bad business model, and then did nothing to alleviate the problem when it became clear that the market was going in a different direction.
In that case, there's no actual evidence of damages, and it's difficult to see the constitutionality of charging someone $750, let alone $150,000, when there's no actual evidence of damages -- and the only actual "damage" may have been caused by the artist themselves by picking a bad business model.
Part of my problem with all of these discussions is that copyright supporters seem to automatically assume that file sharing must be bad -- but there's plenty of evidence to counter that, with artists' wide embrace of it (successfully in many cases) being exhibit A. If file sharing was really so damaging, there would be no such examples. But we see more and more every day. So it's not file sharing that's the problem. The real problem is a bad business model combined with file sharing. And it's rather ridiculous to fine Joel Tenenbaum (or anyone) because some record labels and musicians chose a bad business model.
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Filed Under: charles nesson, constitutionality, doug lichtman, lawsuit, tenenbaum
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In a show purporting to be about the constitutionality of statutory damages in copyright Lichtman didn't even bother to interview the one lawyer who has successfully brought up the question in court against the RIAA.
Ray Beckerman thoroughly savaged this so called Colloquium, and even took down his the link to the show because Beckerman thought the show was so egregiously deficient in it's coverage of the issues involved.
I noted this at Beckerman's blog:
Lichtman is clearly more than just playing at devil's advocate but, instead, actually thinks that statutory damages of $150,000 per song on Joel are reasonable even though they have *nothing* to do with any damage actually and directly related to damage alleged to have been caused by Joel. The host has no problem with the RIAA wielding the power of a government criminal prosecutor with none of the obligations or higher standards of evidence, and with none of the criminal procedural protections for defendants.
From the IP "colloquium's" about page (which is seemingly copy protected by using an all flash interface which makes cutting and pasting text difficult...):
"The Intellectual Property Colloquium is an online audio program devoted to intellectual property topics. We aspire to be something like an NPR talk show, but focused on copyrights, patents, and aimed primarily at a legal audience. Our programs are neither lectures or debates. They are instead conversations, with guests drawn from academia, the entertainment community, the judiciary and various technology industries."
So, if their programs are neither lectures nor debates where do they get off calling them "colloquia"?? And the interviewer a "moderator??" I call foul. Colloquium has a specific meaning and the name "IP 'Colloquium' " seems deliberately chosen to give a false impression of what the the IP audio program realy is.
Just the about page seems to hint at a pro-IP position. And Doug Lichtman? While he isn't a hardline copyright maximalist, he's one of the Lawyers who joined the Viacom legal team in their bid to sue Google over You Tube. But he didn't just join there team, he even wrote an Op/Ed for the LA Times where he explains his position:
"The problem is that users upload excerpts of copyrighted movies and television programs without authorization, and then YouTube happily distributes that contraband to the public. And Google, knowing all this and benefiting from the attention the unauthorized videos bring, has refused to take even simple steps that would reduce the infringement without meaningfully interfering with the service's legitimate use. That is what led me to join Viacom Inc.'s legal team."
....where he conveniently forgets to mention that You Tube complies with with the DMCA takedown notices as required by the DMCA lobbied for by the copyright industry, including his client Viacom. By "simple steps" Doug means "do whatever Viacom demands without question."
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That's a bit harsh. Whatever it's called, does that really matter compared to the content?
In a show purporting to be about the constitutionality of statutory damages in copyright Lichtman didn't even bother to interview the one lawyer who has successfully brought up the question in court against the RIAA.
Again, I don't think that's fair either. The folks he interviewed, including Nesson, all seem to make their own cases quite clearly. It's not biased or one-sided. In fact, most of the participants come off as quite even handed.
Ray Beckerman thoroughly savaged this so called Colloquium, and even took down his the link to the show because Beckerman thought the show was so egregiously deficient in it's coverage of the issues involved.
That's Ray's decision. I disagree. I think there's a decent discussion on some of the case law directly relevant to the case.
Lichtman is clearly more than just playing at devil's advocate but, instead, actually thinks that statutory damages of $150,000 per song on Joel are reasonable even though they have *nothing* to do with any damage actually and directly related to damage alleged to have been caused by Joel. The host has no problem with the RIAA wielding the power of a government criminal prosecutor with none of the obligations or higher standards of evidence, and with none of the criminal procedural protections for defendants.
Lichtman makes his position clear. I don't think he's fooling anyone. I noted in my intro Lichtman's position as well.
So, if their programs are neither lectures nor debates where do they get off calling them "colloquia"?? And the interviewer a "moderator??" I call foul. Colloquium has a specific meaning and the name "IP 'Colloquium' " seems deliberately chosen to give a false impression of what the the IP audio program realy is.
You're way too focused on the name. Focus on the substance.
Just the about page seems to hint at a pro-IP position. And Doug Lichtman? While he isn't a hardline copyright maximalist, he's one of the Lawyers who joined the Viacom legal team in their bid to sue Google over You Tube. But he didn't just join there team, he even wrote an Op/Ed for the LA Times where he explains his position:
Again, I tend to disagree with Lichtman on almost everything having to do with copyright law (his work on the NY Times/Gatehouse case seemed particularly ridiculous), but let's focus on this particular program before just slamming Lichtman.
It's not like he hides his positions. I think it's perfectly reasonable to discuss them.
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But the question is at what point do they become unconstitutional. The point of a civil suit is to remedy a wrong, not necessarily to punish. There may be punitive damages, but it should be as part of righting that wrong (i.e., preventing the same party from doing the same action again). When it goes beyond that, it crosses a line into criminal cases. That's the point, which is made quite clear in the discussion.
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The Constitution...
I wonder what America (heck even the world) would be like if we valued Article 1 Section 10. Specifically the part about nothing but gold and silver Coin a Tender in Payment of Debts.
But I guess we have put our trust in Man to produce bills of credit as forced tender...
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Oh geez, Mike, please. We all know they would have been much better off if they just stopped trying to sell music and just gave it away. They would have way more time to get back to their McJobs.
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let's use Mike's own logic here. The digital file wasn't limited, infinite. Therefore, the violation was equally infinite, because there is no way for this guy to stop it. He shared it with X number of people,who shared it with X number of people, etc.
The true damages are the potential sales to every man woman and child on the planet where that CD might have been sold.
Sort of sucks when that infinite crap comes back to bite.
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Hyperbole on 'infinite' is just childish. Let's do some math, even if the audience for a shared file was 'infinite' (which it certainly isn't) that would reach only as far as the 1,581,571,589 estimated internet users on the planet. The last numbers reported about 18% of internet users had ever downloaded any illegal content. The actual audience for any given file shared is a tiny tiny fraction of those.
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28468 violations.
thanks. You might want to forward your logic to the court.
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And since we're doing math...
Do the words "ridiculous demands" mean anything to you?
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As for the Tenenbaum case, it is refreshing to note that Mr. Tenenbaum's counsel, Mr. Nesson, has finally realized that he is representing a real litigant and not engaged in an educational exercise for the benefit of his students. As a consequence, within the past few days he has retained the services of a trial counsel to assist in his client's defense. It is a shame he did not realize this sooner. It would have avoided the recent criticism leveled at him by the judge presiding over the case.
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A simple question
People hearing artists music for free or at least the value of the time sapped away by advertising. Payola happened because people hearing music sells music. There are lots of things I heard on the radio that I bought. There are things I got as a free iTune that got me to buy whole albums worth.
I guarantee you that If I never heard a song by an artist I would never have bought them. That said if some songs circulate freely and some people listen to them without paying they are the equivalent of radio, heck it is probably cheaper than payola. Some people love a song on the radio and never buy it.
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Re: A simple question
Radio is also not a perfect digital copy. Anyone with an ear will hear the hiss, the compression, the loss of fidelity, and so on. Even the best FM radio today sucks compared to an MP3. In the 60s, with only AM(!) it wasn't even an item of discussion. Early FM radio wasn't much better, low fidelity and compressed to heck.
Finally, the point is "sample" versus full product. Most radio stations don't play the full album end to end, most of them don't even play the full intro or extro without talkover or blending into a station ID.
Free downloads are little like radio, they are more like mailing a copy of the CD to every house in the city and then waiting to see who will buy one too.
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Re: A simple question
Every time I hear someone comparing file sharing to radio I cringe. Using inappropriate analogies like these won't help further the cause, and adds fuel to the fire of those who think the copyleft is just making excuses in order to get free stuff. If you can't make a reasonable argument, stop arguing on others' behalf publicly.
Paid services like iTunes offer single tracks because it is easier for the public to bite on the small charges, and the people paying to download want to pay as little as possible, so they only get the songs they like. If, on the other hand, you have already taken the time to search out a .torrent for an artist, you are far more likely to find whole albums. As transfer speeds increase and storage costs decrease, it is getting almost impossible to find a single song to download. In fact, recently I have seen as many discography torrents as albums.
We need to address the reasons why people are sharing and prod the old guard to adapt or go away.
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True, the name struck me because I noticed that Beckerman was treating the recorded interviews as if they were a colloquium, which have specific meanings in legal circles. It would be like calling tech dirt "open source" when it is not. The phrase has a specific meaning, and open source advocates would bristle at its misuse.
Anyway, As to substance, Beckerman noted, IIRC, that the show missed the whole issue of decisions that have found that *punitive* damages must bare a relationship to actual damages. One case found that they must not exceed 10:1. Surely statutory damages--which are supposed to be financial compensation for actual damages--must be further restricted than punitive damages, yet in current law a single copyright infringement, even copying this web page, can be subject That is the rather important issue that the show avoided.
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Actually, the second segment of the show does discuss that somewhat (it discusses a variety of rulings on that issue, and I believe mentions the 10:1 issue briefly).
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If modification of the statutory damages provisions is appropriate, it is Congress, and not the courts, that has the responsibility.
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A joke..
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Another line of attack
In Bittorrent, by default clients usually upload 1.5 times the size of a given file (what is downloaded) and then stop. So, in total a person only distributes 1 copy and a half. No big damages there. No mass distribution. It's like making 1.5 copies of a CD to your friends. Of course the RIAA can say that this is actually sent in small bits to tens or hundreds of people, which is true. eMule and BT split files in "chunks" and can send each to different people. But in my view this only further complicates their case, as it means no complete copy was likely supplied to ANYONE.
Gnutella and the other older protocols send complete files. But transfers are frequently broken and then resumed from another source. So again, its quite possible that no complete copies where sent to anyone, and there is no evidence of distribution at all. Even these being civil cases, I would expect it would run counter the US Constitution to award punitive damages when there's so much "reasonable doubt".
Without distribution, defendants would only be "guilty" of getting music without paying for it, which as far as I know is not illegal (it's just like getting a copied CD from a friend).
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Re: Another line of attack
The true resolution is this: P2P that doesn't ever broadcast. Call it P2ME. You have software that only receives, never sends. At that point, you are good to go, because apparently you could be guilty of nothing more than receiving the files, never sharing.
Wait, that won't work, because then nobody would share the files. Looks like the "I only received it" defense is sort of a non-starter, because P2P automatically implies sharing. In fact, it is actually not easy to set up common P2P software to do receive only, because it automatically shares back out the pieces as you get them.
Showing only that functionality alone is enough to show that sharing occurred. As digital is infinite, that sharing caused an infinite number of copies to occur with unnamed co-conspirators.
See? My angels sit on the head of a different pin.
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But the fact that the functionality is there, does not mean it was used. If I had a gun, I could have used it to kill somebody - that's what they are made for, after all! But you still have to prove it!
One judge in the US has already thrown out a massive guilty verdict when he realized that proving the files where "made available" was not the same as showing they were actually distributed to others.
And the fact that only pieces of a file, and not the complete file, are sent is also relevant to this issue. At best, as you alluded to, it is a conspiracy to infringe copyright. A conspiracy between complete strangers that never met, never talked to each other, didn't plan or intend to commit copyright infringement, didn't profit from it and possibly didn't even knew the uploading was going on. I don't know about conspiracy law, but that's hard to swallow...
By that reasoning I could argue the people who took sub-prime mortgages and the bankers conspired to bring down the financial system.
Plus, a download does not necessarily equal a lost sale. Many wouldn't buy anyway. Some use it to try before they buy, and some go to concerts they wouldn't otherwise go to. Several studies have indicated there is virtually no impact on sales at all!
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Make Sense of the Law
The legal argument presented here is fairly balanced and common sense, and is not anti-customer, anti-electorate, and pro-greed, pro-theft and pro big business.
The reason this RIAA thing has gone on for so long is that there has been no public outcry like there was with AIG, the we are going to have a revolution and "hang the greedy bastards" threat, that's the only position that seems to get their attention.
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As for damages being infinite because a digital good is infinite: It's total bollocks. Damages must be quantified and you cannot quantify infinite so there can be no actual damages. And aside from that the popular P2P methods of sharing download from multiple sources so no single person has shared the whole of whatever they are sharing with anyone. Let's say I have bittorren setup to seed to .5 and then stop seeding. I have never shared a complete file, I have likely never even shared anything that is usable in the form in which I have shared it. Lets say I sent 512k of a 200 meg file to 400 different people and the record company claims that file is worth 100 dollars and all this can be proved then what damages am I responsible for? I cannot be responsible for any damages for other people sharing only my own.
It's ridiculous to claim that the damage from sharing an infinite good is infinite as there is a still a finite number of people who accessed the infinite good. The point in saying that the goods are infinite is simply to show that file sharing, while possibly violating copyright, is not theft as the original rights holder still has the original.
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Yes but here's the rub: If the file digitized is an infinite good, than putting any part of it out there creates an infinite shared violation.
If the goods are infinite, then by definition the violation (putting it out there) creates an infinite violation. If you share single file (or part of) with 2 people, and they do it to 2 people, your total share doubles on every level. Without your initial share, the rest didn't happen. This is how your share, no matter how small, becomes part of a larger infinite violation. There is no stopping it. In a weird way, by sharing any part of the file, you became a co-conspirator in a scheme to distribute the file / music / movie.
Infinite bends both ways.
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Oh for frak's sake
Meanwhile a bunch of masseuses show up, but are vehemently opposed by the Scratcher's Guild and their friends in government as an obviously upsetting development in the scratching industry...
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Screw You
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Digital content is much more convenient than physical copies of the same thing. A person can fill an MP3 player with more music than a duffle bag full of CDs, and still have it fit in their pocket. Using standard 700MB AVI files for movies, a person can easily put a couple dozen movies on a laptop for watching while traveling. It's also more convenient because there is such a wide range of devices they can be played on. You can play music and movie files on virtually any modern computer, regardless of what brand it is, or what OS it uses. The files can be backed up an infinite number of times, ensuring that you can easily keep your content virtually forever. Finally, since distribution of digital content is cheap and easy, huge libraries of content can easily be put online for next to nothing, as evidenced by the huge volume of content available on the file sharing networks.
Unfortunately, the music and movie industries still haven't realized all of this. They insist that physical copies are still the core of their business. They've taken a few small steps, but have mostly crippled their offerings, making them unattractive to potential customers.
They add DRM that restricts where and when people can play the files, often locking them to specific hardware. They place restrictions on backing up the files, preferring instead to offer re-downloads, often only for a limited time. They charge prices that are out of line with the actual costs of distributing digital. Finally, they only allow access to a portion of their catalogs, while keeping all the older, more obscure content (which is exactly the kind of stuff that should benefit from the digital age) locked up where nobody can access it.
Of course, some of this is due to the ridiculous licensing schemes that they've forced into law. Why must WKRP in Cincinatti be butchered for the video release? Licensing. Why did it take 15 years for the movie Heavy Metal to be released to home video? Licensing. Why won't networks open up their vaults and make on-demand copies of old TV shows that will probably never be released on DVD? Licensing.
If iTunes can become a success "selling" DRM-crippled music and video files that make people jump through hoops to use them, don't you think DRM-free files in standard formats would be even more successful? Sure, they'd get pirated, but that happens now anyway, only the source is different. Piracy wouldn't get worse, but people would have a legal alternative that offers them the same "product" without any of the legal risk.
When buying an MP3 of a song or an AVI of a movie is as easy and hassle-free as buying a physical copy, piracy will diminish (but not vanish). Until then, people will continue to seek out what the companies refuse to give them.
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They insist that physical copies are still the core of their business.
Not really true. They insist that licensed copies are the core fo the business. As nobody has shown a good online model for proving a license, the physical copy is still the best alternative. In the end, it isn't about virtual or physical, but about having the license to own, which most people here don't seem inclined to pay for.
As for WKRP and Heavy Metal, they are two different cases with the same problem: They failed to secure all the rights they would need up front, and as a result, would have to purchase those rights again later at rates they were not clearly aware of. In the case of WKRP, the publishers decided it was better to chop and slice rather than pay, which brought an inferior product. It's not the music industry's fault, it's not like they were asked insane amounts of money more than anyone else would pay in the same situation. Heavy Metal, well, that was a screwed up project from the word go, so why would the negotiations for rights be any different?
When buying an MP3 of a song or an AVI of a movie is as easy and hassle-free as buying a physical copy, piracy will diminish (but not vanish). Until then, people will continue to seek out what the companies refuse to give them.
Wow. Piracy will never diminish, not anymore. Mike and his type have spent the last 10 years jamming the idea of "FREE!" down our throats. Places like Pirate Bay have given the finger to the man and told everyone that copyright is someone else's bitch. A whole generation of 12 to 25 year olds right now believe that all music is free. That cat ain't going back in the bag. The value of music has been set in the public's mind, and that value is zero.
Perhaps your statement should be something more like "until the music companies decide to throw in the towel and give the music away for free, people will keep obtaining it without license from p2p download sites"
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If it had no value, no one would downloaded it. Many people are beginning to realize that the *cost* of music should be zero, but that it has value.
Allow me to put it in different terms: Record Labels do not sell music, they sell plastic discs. They needed a way to make plastic discs worth buying-- so they put music on it. The era of the plastic disc is over, and thus, they need to find something new to sell, or they'll go out of business. It's that simple. They did it from 8 track to cassette tape, and then from tape to cd.
Musicians do not sell music. They are Entertainers and sell entertainment. Today anyone can copy a song. After overhead from storage (computer) and securing a distribution method (I pay comcast a good deal of money a month) I can replicate music at a cost of $0. Now, if I'm willing to do it for free why on Earth would anyone buy it from someone else for something >$0? Better yet, instead of the Musicians paying for that overhead for themselves, they can let me do it at zero cost to them. Yup, I'll store it and distribute it for free-- but it has to be music I like. Sounds like a good deal to me.
"But, Joe, how will they get paid?" Well, they should get paid for doing something that takes skill-- like playing music in front of a group of people. I dunno about you, but I have the music skills of a dying shrew. If you look at it that way, then recorded music would be a commercial to convince me to go watch them perform their craft. Now in that light, I have agreed to store their music, and promote them-- again all for free. All they have to do is sit back and wait for the fans to come to them, and then entertain them.
"But Joe, recording the music you're giving away costs money!" Yes, Howard, it does. It's called an investment. They don't always work out.
This is the basic groundwork-- with a little creativity, there are losts of ways to make money with this.
Have a wicked decent day.
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All Music and Film should be free
Entertainers should have no right to gain financially from the Arts.
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What the "colloquium" omitted
Fortunately, the Free Software foundation filed an amicus brief today, bringing the omitted authorities to the attention of Judge Gertner, so at least she'll have something to read which actually discusses the last 6 years of jurisprudence on the subject.
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People will always share what they can get for free
People, and not all people, will find a way to share their music. Whether it be online via p2p or online with an online storage company or transported with a cd they will find a way.
These suits are only about keeping the honest people honest. The thing I don't agree with is blaming the low cd sales on file sharing.
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