No, A Jury In A Trial Is Not A Representative Sample Of Views On Copyright
from the nice-try-though! dept
After the Jammie Thomas trial, the RIAA tried to claim that the juries in both her trials represented a representative sample of the nation's views on copyright law. Now, following the Joel Tenenbaum trial, entertainment industry lawyer Ben Sheffner is making the same claim again:On the Internet, (almost) everyone hates copyright. In fact that's one of the reasons I started this blog. Every day, for years, I would read about how copyright is stupid, outmoded, destructive, and downright evil. But I knew that the "law" I would read about bore scant resemblance to the actual law, and the way that businesses that earn revenue from production and exploitation of copyrighted works actually function. And I knew that not everyone harbored such vitriol and venom for the copyright owners, who routinely win major victories in the courts and the political arena.While I'm sure that sounds good and is comforting to folks who make their living by profiting off of government granted monopolies, it's not even close to accurate. First of all, a jury is hardly a representative sample. The lawyers on both sides work hard to weed out those who actually are knowledgeable on these topics. In the Tenenbaum case, for example, any juror who admitted to using any file sharing apps was ruled out from serving on the jury. I have no problem with this from a legal standpoint, and totally understand why it happens, but it highlights that these juries are not a representative sample by any means.
The Jammie Thomas-Rasset and Joel Tenenbaum verdicts have highlighted this chasm between the "Internet" view of copyright, and what average citizens think of the topic. Now three juries, made up of 34 ordinary people from the Minneapolis and Boston areas, none of whom had any connection to the entertainment industry, have passed judgment upon use of p2p networks to obtain music without paying for it -- an activity that is excused, or even celebrated, in many quarters of the web. And all three of those juries demonstrated through the very large damages awards they imposed that they view illegal downloading and "sharing" as wrong, and deserving of harsh sanction.
Second, trials have very, very specific rules (many of which Tenenbaum's team tried to break), which limit what sort of information you can share about various issues. So at no point could there be a real conversation on copyright or business models. The jury was not an informed audience.
Third, Sheffner tries to use the fact that all three juries did not assign the statutory minimums as a sign that they felt that file sharing deserved harsh punishment, but again, that's not necessarily true (though, certainly it could be). There's a tremendous amount of evidence out there on jury decision making, and the award amounts that juries give can be heavily influenced by numerous factors, including something as simple as the numbers tossed out by those involved in the case. A few separate studies have shown that when numbers are discussed, it gives the jurors an anchor and they just see those numbers as acceptable, rather than comparing the numbers to the actual crime. Given that, the fact that the jury chose a number towards the lower end of the statutory range suggests that the jury actually didn't think the punishment should really be that harsh.
Fourth, in both of these cases it was clear that the defendants broke the law. The jury's job is made clear to them, and it is to make a determination on the law (and in the Tenenbaum case, even that was taken out of their hands by Tenenbaum's admission). Saying that this is somehow representative of the actual views on the activities is again, quite misleading.
Fifth, it's no surprise that those who don't follow these issues closely believe the idealistic story about copyright being an undeniable good thing. It's what most of us were taught, and if you don't know the details or haven't been directly impacted by draconian copyright laws, you probably believe that myth that many of us were taught from a very young age. So you put a bunch of those folks together on a jury, limit their ability to be educated, and of course they're going to default to thinking "copyright = good."
Over the years, I've found that most people who don't pay much attention to these things believe that story of copyrights and patents being the "root cause" of American creativity and innovation. It's a fable that sounds so good as youngsters, and why not? Yet, when you talk to such folks one on one or in small groups, and start going through the real details... and when you explain to them how copyright is used to stifle speech and innovation, and when you show them the new and unique business models that don't rely on copyright, they recognize the issue. When you finally show them the evidence -- the studies upon studies about the harm done by such things, it's not hard for them to realize that there's a real problem with copyright laws, and that problem isn't the fact that some kids aren't paying for downloads.
The only people I've found who resist such things are those whose own income in some way depends on exploiting copyright for their own advantage. There may be others, certainly, but in my experience it's incredibly rare. Not only that, but I've actually found that even within much of the entertainment industry, there's an understanding of this as well. I can't even begin to tell you the number of industry insiders who pull me aside at entertainment industry events to say (quietly) that they agree with a lot of what I say, but there are too many legacy issues to deal with to move forward strategically.
So, claiming that these juries are somehow representative samples of the views of people on file sharing is not even close to being accurate, no matter how much a small group of entertainment industry lawyers hope it's so.
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Filed Under: copyright, joel tenenbaum, juries, public perception
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And even among that group, such blanket acceptance of the current copyright scheme isn't the majority, at least in my experience (and yes, I make money producing and selling IP in the form of software).
Most producers that I know understand that copyright is not an embodiment of some kind of natural or philosophical right, but a legal fiction, a deal made between us as producers and society. This deal should benefit both parties, but as currently implemented it does not.
I have actually found relatively few copyright maximalists amongst those who actually understand copyright.
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In addition...
In the past 10 years, I've watched some very interesting websites show up, do what they intend to do, then vaporize overnight because they were sued out of existence by either patent or copyright violations.
To think RIAA wants me to buy music to line their pockets to push this propaganda shit further? Screw them.
Ben Sheffner is an idiot if he thinks I'm going to believe one word he wrote in his blog. That's arrogant thinking on his part.
And Ben, you just drove one more reason on why I don't buy music to support your paycheck. You're a damn liar.
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Re:
The thin edge of the wedge at both end of the discussion is repulsive to most people.
"And even among that group, such blanket acceptance of the current copyright scheme isn't the majority"
The problem is offered the choice between the current system and "no system at all", they will choose the system. Copyright haters forget that in order to move the masses, they have to offer the masses something that makes sense to everyone, not just satisfying their own narrow views on the subject.
In this case the RIAA is right - 3 juries in a row have come up with the same answer. Considering that Mike is all about spotting trends, you would think that he would spot this trend and start to wonder if it isn't true.
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False premise
Baloney!!! Juries don't make findings of law, period. They receive explicit instructions as to findings of law, and they then try the facts against those instructions.
The size of a settlement awarded has more to do with the ability of plaintiff's council to substantiate damages than a juries desire to punish the evil pirates.
The entire notion that the jury is somehow weighing in their opinion on what is right and what is wrong here is grossly fallacious.
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Also...
Also those with some sort of ill-placed loyalty. I can't convince my friend (who usually sees my point on copyright) that Salinger is wrong about the whole Catcher thing, just because she loves the book so much and is horrified by the idea of anyone tampering with the ideas therein. Essentially as soon as copyright issues related to her favourite author, her whole stance on the question changed...
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What a line of crock
And the only people that feel copyright should be abolished are those with little or no tallent to create for themselves. Those who feel "entitled" to everything for free...
Of course those that have nothing to loose by the abolishment of Copyright would be able to be convinced that it is a bad thing. They have nothing to loose and everything to gain for free.
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In the Tenenbaum case, under current law, it was very obvious that he was guilt as charged. For the jury to find differently would have been an incredible stretch. However, just because he and previous cases have been found guilty under those laws, does not mean that those laws are correct.
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As for the remainder of the comments regarding the jury system, I do wish you would consider some of them from a broader perspective. A basic tenet of both criminal and civil jury trials is that the jury is to be impartial. Your arguments are in many regards to the contrary.
Moreover, many of your arguments are directed to issues that are matters of policy, and not of law. It is axiomatic that considerations of policy and the promulgation of legislation reflecting policy are the province of state legislatures and Congress. There is good reason for the doctrine of separation of powers, and many of your arguments would, if adopted, serve to undermine the doctrine...a fundamental tenet of our system of republican government.
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Re: What a line of crock
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In which case the proper venue for change is Congress, and not exasperated posts on website blogs.
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Odd, that. The only people that I've ever heard setting the problem up in such an all-or-nothing way are the maximalistsand the "copyright haters" (who are at least as rare as the maximalists, even here in this forum.)
Most of the criticisms I have heard of copyright are not that it shouldn't exist, but that the current law goes way too far. So I do have an alternative that should make sense to the vast middle: restrict copyright law to what it was at the beginning, a limited term of limited monopoly followed by the copyrighted works entering the public domain.
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Yes, because in a democracy when we are faced with unjust laws, the proper way to react is to shut up and do nothing until Congress sees the light.
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Re: Re: What a line of crock
I have no obligation to society other than to abide by it's established rules or move to a society where the rules are more to my liking...
Society owes me nothing as long as I contribute nothing. If I contribute something that benefits I am owed compensation for that benefit.
VERY SIMPLE
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As for "shut up", of course not. I simply observe that posting on a blog does virtually nothing to advance the cause of those who would seek change.
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However, you're wrong about how posting on a blog does virtually nothing to advance the cause. It's not sufficient to attain the goal of change, but it is mandatory. It's called "rabble-rousing" and no justice has ever come about in our society without it.
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Unfortunately you're right, our government pays no attention to what the masses want, only to what special interest groups want.
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Re: Re: Re: What a line of crock
Sounds like an elitist attitude to me, as if you're somehow more talented than society.
"Society owes me nothing as long as I contribute nothing. If I contribute something that benefits I am owed compensation for that benefit."
Society does not owe you a monopoly and if you don't want to contribute as a result no one is forcing you to. Someone else can.
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Re: Re: Re: Re: What a line of crock
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Re: What a line of crock
That's just my take on this. I am also opposed to the concept of software patents, as imho nothing in software for over 20 years now has been unique or original enough to be deserving of a patent. I make my living as a software developer, and this is my stance on things.
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Also, you make no sense, even with the extra words. Speak to the point of the post not what you imagine the post is about.
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Re: Re: Re: Re: What a line of crock
As for someone else doing what I do, bring it on, I would welcome the competition. Competition tends to make everything better, and in my case there is little competition in my field.
But NEVER expect me to give my work away for free, and expect me to exhaust every legal option at my disposal to protect what is rightfully mine.
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Re: Re: Re: Re: Re: What a line of crock
Fine, but your 'legal options' are exactly the point of this conversation.
You don't want people repeating what you say? Shut the hell up, then.
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Re: Re: Re: Re: Re: What a line of crock
Then don't, but don't expect society to grant you a monopoly.
"and expect me to exhaust every legal option at my disposal to protect what is rightfully mine."
A monopoly is not rightfully yours, society owes you no such thing. You don't want to contribute as a result, then tough.
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Re: Re: Re: Re: Re: What a line of crock
"You could also turn that around and say society exploits the talented."
I responded to which you responded
"Only a fool would think he is better than everyone,"
But my response was to a comment that suggests that only a faction of the population is "talented" and the rest of society exploits them to which I disagree. Society in general is talented and and can exercise its own talent without exploiting the elite.
"but I am in the top few percentage points of my field."
more elitist attitude.
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Re: Re: Re: What a line of crock
Feel entitled much? Compensation is not "owed" to anyone for any action outside of contractual obligations. When was the last time you sent money to Newton's estate to thank him for advances in creating framework for calculus? Freaking free loader.
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The problem is that, in technical cases, voir dire tends to eliminate anybody who could make an informed judgement. It's like you were doing a case that hinged on maritime law, but only accepted midwesterners.
It's not exactly a 'jury of your peers' no matter how you slice that.
(And yeah, it's not limited to technical cases, I know.)
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Re: Re: Re: Re: Re: Re: What a line of crock
If society was so talented then there would not need to be the talk of getting rid of Copyright at all. In fact with so much talent it would seem that Copyright wouldn't even be needed because everyone could do for themselves.
BUT the reality is that each of us has our talent in our own area, and we NEED the talent of others to fill in those gaps.
This blog seems to proove though that most of you feel you are entitled to what everone else does, and don't want compensate them for their hard work, most seem to feel that they don't need to do anything actually.
Take the dribble that comes from Mike's Keyboard, rarely does it demonstrate talent, rarely does it contribute anything but pissing and moaning, and rarely does he do anything except rag on the music industry because *HE* thinks they need to change their business model.
In the end he and most of you have lost grasp of the fact that just because you think the business models are outdated and inappropriate, does not mean crap to anyone. The Music industry has the right to run their business how they want.
As long as Artists continue to sign with them and give them the rights to distribution it's their right to do as they please. If they choose outdated business models then they hurt themselves and the artists that sign, and eventually that side will take care of it's self.
As long as idiots keep downloading their music illegally they have every right to continue to sue, and to go to congress and ask for stronger punishments etc....
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wow, good description
^This guy hit right to the heart of the matter
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Re: Re: Re: Re: Re: Re: Re: What a line of crock
Except for where copyright interferes with our freedoms.
"If society was so talented then there would not need to be the talk of getting rid of Copyright at all. In fact with so much talent it would seem that Copyright wouldn't even be needed because everyone could do for themselves."
Your two statements are in contradiction.
Yes, such strict copyright laws are not needed, that's the point.
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Are you saying that because the system is *supposed* to be impartial, the evidence that has shown it is not is to be ignored?
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Re: Re: Re: Re: Re: Re: Re: What a line of crock
Um, that's exactly what we're discussing.
Yes, you have a right to run you car over a cliff. Good luck to you, and to the execs who realize that it's just easier to get their payoff right before the care goes airborne.
We're talking about how this is all going to work after the hollywood carsplosion happens.
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Re: Re:Few Copyright maximalists
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Re: What a line of crock
And the only people that feel copyright should be abolished are those with little or no tallent to create for themselves. Those who feel "entitled" to everything for free..."
In fact the most vehement supporters of copyright are those "whose own income in some way depends on exploiting copyright for their own advantage" but who also have "little or no tallent to create for themselves" but rather use copyright to exploit the talent of others. Copyright was created in the first place to protect just such a group - the London Company of Stationers.
Those with real talent will make a living under any copyright regime or none - and their priorities tend to be
1. That their work should be seen/heard/used.
2. That they should get the credit for it.
3. That they should earn money from it.
Mostly they are happy to sacrifice 3 and maybe even 2 to ensure that 1 happens.
Those whose priorities are different are usually either the exploiters of others - or second rate.
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Re: Re: Re: Re: Re: Re: Re: What a line of crock
Except when they start lobbying for laws that interfere with everyone elses rights.
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Re: Re: Re:Few Copyright maximalists
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http://en.wikipedia.org/wiki/Jury_nullification
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Since this is a civil suit, perhaps in other civil suits such as for "wrongful death" we should insist on at least one juror who has engaged in an act that resulted in someone's "wrongful death"? After all, who better to understand what could be inflicted on the defendant in the event of a judgement in favor of the plaitiff?
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Re: Re: Re: Re: Re: Re: Re: Re: What a line of crock
Please remind me which one of your sacred rights has been trampled on again.
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Re: What a line of crock
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Jury's perception of sanction
Given that JT's jury, logically, had to say infringement was willful, they probably felt obliged to award damages in the higher bracket. The only real precedent they had was $80,000 per song for JTR; $22,500 is way down on that. Suggests they did not think it was that serious.
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You've got to be joking. Between the RIAA and MPAA there are more than enough "copyright maximalists" to do considerable damage. We've had at least 2 copyright term increases as well as the passage of the DMCA as well as attempts at creating even harsher controls and laws. The RIAA even tried to completely hijack the rights of all of their artists en masse through statute.
People just don't realize how bad it's already gotten. A restaurant can be sued for singing you "Happy Birthday" while bringing you out a cake. The King estate jealously guards "I have a dream". Countless works older than your grandma deteriorate in copyright enforced obscurity.
Meanwhile the corporatists engage in nice misrepresentations like "anti-copyright".
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Re: Re: Re: Re: Re: Re: Re: Re: Re: What a line of crock
No. You're the one that needs a clue.
There is no "contract" involved in buying copies of
music recordings. There's no contract or implied
license. It's just a copy. No license is required
for "use" and any "rights" are limited by just the
normal usual 1890's copyright regime.
The idea that purchase of a CD implies some sort of
license is destructive mindless corporatist propaganda
that really needs to stop.
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Well I certainly don't think that copyright should be abolished, nor do I think that this is TechDirt's 'official' position.
But I do think that copyright is out of control today, specifically (in the US) because of the Sonny Bono Copyright Term Extension Act and the DMCA. In it's current form it seems far less beneficial to artists than it is to lawyers.
And I don't think this because I have 'little or no talent to create for' myself. To the contrary, I make my living selling my talent, both in the form of royalty free samples, and music licensing. I am very definitely what one would refer to as a 'content provider'. Nor am I one of 'those who feel "entitled" to everything for free...'
No, I think that copyright law is out of control because that is my rational conclusion based on what I have read. The only content providers that it really benefits in today's world are the ones that have a staff of attorneys on retainer. A great example of the stupidity that can occur is Robert Fripp's struggles with EMI (Yes this is in the UK, not the US, but Fripp's ability to express himself, along with his long career, draw attention to what is clearly an international problem).
This shit happens all of the time. It is why so many former signed artists are going off on their own despite the fact that it involves them in business matters that they would just as soon ignore. But the problem is that when they just let the businessmen take care of these things, they get screwed
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Re:
Here's the rub, it's sort of a two step: Mike has said in the past he wants the copyright "rolled back to something reasonable" and "rolled back to what it was original was" - which would be 10 years. The fallout for everyone in the range from 10 years to the current levels would suddenly be left without protection, an ugly situation.
Just as importantly, Mike and Techdirt have come down almost every time in favor of file sharers, torrent sites, and the like. Since the vast majority of what is traded on torrent sites is current music (within that 10 year window) it is effectively like saying "we don't support copyright at all".
Since so many of the business models discussed here require music to be freely available to work, it isn't a surprise to see where Mike lands on the subject.
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Re: Re:
Here's the rub, it's sort of a two step: Mike has said in the past he wants the copyright "rolled back to something reasonable" and "rolled back to what it was original was" - which would be 10 years.
I have never said I wanted copyright rolled back to what it originally was (and, um, btw, you might want to check what it originally was, because you got it wrong).
What I said is that I want to make sure that copyright lives up to its ONE purpose: to promote the progress of science and the useful arts. If it is not doing that, then it is unconstitutional. However, for anyone who can show that it is living up that, then there's no problem at all.
The fallout for everyone in the range from 10 years to the current levels would suddenly be left without protection, an ugly situation.
Actually, I've also, quite clearly said that I do not think any change should be retroactive. Any change should only be going forward. This is the same reason why I feel that copyright extension is bad. Because it changes the deal. In that same way I do not advocate taking copyright away from those who already have it.
Please, stop lying.
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Only One Side?
In other words, Mike, when you only provide one side of the issue, regardless of business models, you might convince some folks that your opinions are somehow fact. What these jury verdicts indicate is that average Americans most likely still believe that creators and inventors should have protection by which to profit, if they can, from their creations. At it's most basic level, most people think it's a fundamental issue of fairness.
Apparently, the Founding Fathers thought so, too, since they included copyright as part of our fundamental law in our foundational document, the constitution.
Also,
Fourth, in both of these cases it was clear that the defendants broke the law. The jury's job is made clear to them, and it is to make a determination on the law....Saying that this is somehow representative of the actual views on the activities is again, quite misleading.
As was pointed out above, juries do not make determinations of law, they make determinations of fact. It is also clear that anyone who engages in file-sharing of copyrighted material is breaking the law.
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Re: Re: Re: Re: Re: Re: Re: What a line of crock
It takes no talent to make a copy of a digital file. So I have no desire to pay someone to do it for me, as any 4 year old with a computer can do it.
Musicians can, and do, get paid to make music. Not copies of music.
In the end he and most of you have lost grasp of the fact that just because you think the business models are outdated and inappropriate, does not mean crap to anyone.
As a consumer, we all have an indirect influence on how a business is run, thus, any smart business owner would take heed.
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