With all due respect to Charles Nesson and Joel Tenenbaum their legal strategy has been flawed from day one. There are cases that are good candidates to set good precedents. This unfortunately wasn’t one of them. Nesson and Tenenbaum may end up doing more harm than good to hopes for positive reform of the copyright system.
This is but one more blatant example of corporatism run amuck, aided and abetted by the political/legal system. Banks, telecoms, cable and satellite providers and, last but not least, the banksters with their unabated robo-signing, are all nonchalantly committing widespread frauds with impunity, shielded by legal barriers that effectively defy redress by consumers. But let a consumer “illegally” download a single audio file, and here comes a lawsuit imposing damages for 20,000 times the market value of the allegedly purloined song.
The industry likes to call this “theft”. It is not. If you have one pair of shoes, and I take those shoes, then you no longer have any shoes. That is theft.
If you have AGreatSong.mp3, and I make a digital copy of AGreatSong.mp3, then we now both have AGreatSong.mp3. That is not theft. It is civil infringement of a copyright — duplication of an infinite good. Instead of one of us having a string of 1’s and 0’s on a computer, now two of us have the same string of 1’s and 0’s.
So let’s look deeper. What was lost when I made a copy of the file? The industry would argue that they suffered a “lost sale” — they say I would have bought that song if the infringement hadn’t taken place. But is that true? Say Little Johnnie downloads 50,000 songs from newsgroups — 5,000 full albums of music. Do you think Little Johnnie would have gone out and spent $94,950 to buy 5,000 CDs? And what was Johnnie’s intent– did he intend to sell bootleg physical copies of the music at a flea market (a valid application of copyright law) or did he just want to listen to some music he hadn’t heard before?
The industry has a stronger argument with the “making available” claim, but again their math is full of unfair assumptions. Let’s say Johnny copies one of Bobby’s MP3s. Johnny then adds this file to his “shared music” folder where other people can make a subsequent copy of the file. Data shows that a total of only one person made a copy of the file. The industry has argued in cases such as this that maximum statutory damages should apply because that one single act of “making available” could possibly lead to thousands of other people subsequently making additional copies, and of course all under the assumption that every case of infringement is also an actual lost sale. (Funny story if you do the math on that based on estimated rates of piracy then the industry has “lost” an amount of money greater than the combined GDPs of every country in the world!)
And there is increasing empirical evidence suggesting that personal, private and non-commercial infringement actually boosts sales. The book “Go the F*** to Sleep” debuted at #1 on the NYTimes best seller list. The book was widely leaked on torrent sites between the pre-sale and the release date. Even though many people had already read it (and for free) they still went out and bought the book.
The thing that really gets me is that almost none of the people that downloaded/uploaded songs did so to make a profit. They just wanted to share the music.
I’m surprised that the RIAA hasn’t gone after public libraries that offer cd/dvd borrowing…
With all due respect to Charles Nesson and Joel Tenenbaum their legal strategy has been flawed from day one. There are cases that are good candidates to set good precedents. This unfortunately wasn’t one of them. Nesson and Tenenbaum may end up doing more harm than good to hopes for positive reform of the copyright system.
This is but one more blatant example of corporatism run amuck, aided and abetted by the political/legal system. Banks, telecoms, cable and satellite providers and, last but not least, the banksters with their unabated robo-signing, are all nonchalantly committing widespread frauds with impunity, shielded by legal barriers that effectively defy redress by consumers. But let a consumer “illegally” download a single audio file, and here comes a lawsuit imposing damages for 20,000 times the market value of the allegedly purloined song.
It’s just a shame that turnabout isn’t fair.
Suing the RIAA for inflicting Lada Gaga on the world deserves some kind of punitive judgement…
The industry likes to call this “theft”. It is not. If you have one pair of shoes, and I take those shoes, then you no longer have any shoes. That is theft.
If you have AGreatSong.mp3, and I make a digital copy of AGreatSong.mp3, then we now both have AGreatSong.mp3. That is not theft. It is civil infringement of a copyright — duplication of an infinite good. Instead of one of us having a string of 1’s and 0’s on a computer, now two of us have the same string of 1’s and 0’s.
So let’s look deeper. What was lost when I made a copy of the file? The industry would argue that they suffered a “lost sale” — they say I would have bought that song if the infringement hadn’t taken place. But is that true? Say Little Johnnie downloads 50,000 songs from newsgroups — 5,000 full albums of music. Do you think Little Johnnie would have gone out and spent $94,950 to buy 5,000 CDs? And what was Johnnie’s intent– did he intend to sell bootleg physical copies of the music at a flea market (a valid application of copyright law) or did he just want to listen to some music he hadn’t heard before?
The industry has a stronger argument with the “making available” claim, but again their math is full of unfair assumptions. Let’s say Johnny copies one of Bobby’s MP3s. Johnny then adds this file to his “shared music” folder where other people can make a subsequent copy of the file. Data shows that a total of only one person made a copy of the file. The industry has argued in cases such as this that maximum statutory damages should apply because that one single act of “making available” could possibly lead to thousands of other people subsequently making additional copies, and of course all under the assumption that every case of infringement is also an actual lost sale. (Funny story if you do the math on that based on estimated rates of piracy then the industry has “lost” an amount of money greater than the combined GDPs of every country in the world!)
And there is increasing empirical evidence suggesting that personal, private and non-commercial infringement actually boosts sales. The book “Go the F*** to Sleep” debuted at #1 on the NYTimes best seller list. The book was widely leaked on torrent sites between the pre-sale and the release date. Even though many people had already read it (and for free) they still went out and bought the book.
The article mentions that all but two people settled these charges without going to trial. Does anyone know the approx cost per song they paid?
I think in my state civil restitution for shop lifters is 10x the value of the item taken. 22,000x is quite excessive.
Somebody just let me know when I can start downloading Metallica again.
The thing that really gets me is that almost none of the people that downloaded/uploaded songs did so to make a profit. They just wanted to share the music.
I’m surprised that the RIAA hasn’t gone after public libraries that offer cd/dvd borrowing…
system is outdated, I agree…time to move into the future.