Listen to the RIAA's Appeal In Jammie Thomas Case

NewYorkCountryLawyer writes "The RIAA doesn't really like free mp3 files floating around but here's one you can access legally — the audio file of the June 12, 2012 oral argument of the RIAA's appeal in Capitol Records v. Jammie Thomas-Rasset. At issue in this case are (a) the RIAA's 'making available' theory and (b) the constitutionality of large statutory damages awards for download of an mp3 song file. The lower court rejected the making available theory, and reduced the jury's verdict to what the judge considered the maximum possible award of $2250 per file. I'm predicting the Court will affirm. After listening to the oral argument, what do you think?"

Comments

Re:Site is slashdotted

[lexa1979]

and you're not on the right post :) go back one page...

What do we think? We don't know!

[L4t3r4lu5]

A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.

You're the lawyer; You tell us!

Re:What do we think? We don't know!

[Anonymous Coward]

Its one more nail in the coffin of an outdated model that serves as an example of a few industries that have failed miserably to embrace new technology and god forbid adapt to changing circumstances, and instead are abusing the courts to keep an outdated methodology in place, massively stifling innovation in the process.

Re:What do we think? We don't know!

[Anonymous Coward]

The math is quite simple. They always want more money. Downloading the file without paying them is one excuse. Because that's how greed works.

Everything else, is how you massage the data to get more. If they are allowed to extort $150000, or a million they are fine. I'm guessing they would be fine with $10. But the law firm behind is charging $149990 in expenses.

Re:What do we think? We don't know!

[Anonymous Coward]

Well, it will make a lot of sense when an Intellectual Property Tax is introduced. I see no reason the assessment should be any less than $150,000 per song. Property tax you pay regardless if you have any renters in there or not, so with a life+95 copyright term you're looking at trillions of propery for each of the Big 4 (3 if EMI gets approved). Even with a 0.5% tax rate and a $100,000 exemption it will be quite a boost to the federal coffers.

Re:What do we think? We don't know!

[QuasiSteve]

And on the other hand is hyperbole and backwards Pirate accounting, where a song which was once played on the radio back in the 40's could conceivably have been recorded - legally, for free - by their grandfather onto a wire recorder and passed down through the generations having been transferred to more modern media and replaced with higher quality recordings (after all, one should be entitled to the same piece of music even if it's not the exact same recording) along the way ending with them.

At which point they made it available to 1,000 'friends' whose grandfathers could also just as easily have recorded it back in the 40's and thus, logically, have every right to that same piece of music.

It also does not only extend as far back as the 40's - any newly released song is played on radio, released on youtube, etc. so the arguments work just as well for those.

Which, coincidentally, makes the monetary worth of that music $0, thus there being no monetary damages and no basis for a court case at all.

Moreover, by exposing people to this music they share, those people may be more inclined to listen to more of that music and actually buy them at iTunes, buy the physical albums, go to concerts and purchase t-shirts and other swag.

Really, by some Pirates' logic, the RIAA should be paying them.

I don't really see either extreme being particularly realistic. Unfortunately, the two 'sides' are not likely to come to an agreement any time soon.

Re:What do we think? We don't know!

[Theaetetus]

A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.

You're the lawyer; You tell us!

Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."? Do you think Apple paid $1 per song to the record companies and never again paid a dime, regardless of how many copies they distributed?

That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

And finally, the $150k for willful infringement shouldn't apply, because "willfulness" in this context means something different than "intentional". But Capitol Records sure as hell isn't going to raise that, and Thomas failed to also (reasonably, because arguing that $750-$30k is a better range still leaves her on the hook for more than she can afford). But we should be talking about reasonable royalties for distribution in a range of $750-$30k per song.

*Of course you wouldn't... You'd only distribute self-published tracks from indie hipster bands. ;)

Re:What do we think? We don't know!

[Anonymous Coward]

"Which, coincidentally, makes the monetary worth of that music $0, thus there being no monetary damages and no basis for a court case at all."

Exactly, something with infinite supply does not have any value no matter how much you try to artificially create scarcity where there is none. That does not mean that artists cannot profit off their works, but they do need to go about it in some different ways. See bottled water for one example.

Re:What do we think? We don't know!

[HungryHobo]

Though most don't provide anything like as many copies as a store.

the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.

As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who walk past, see 1 or more broken windows and throw a rock themselves.

Re:What do we think? We don't know!

[NewYorkCountryLawyer]

You're the lawyer; You tell us!

I've never before experienced such humility on Slashdot. You must be new here.

Re:What do we think? We don't know!

[QuasiSteve]

Bottled water is a fairly poor example, though.

Bottled water is highly popular in the U.S., as far as I've been able to tell, because of a few reasons:
1. It tastes better. Tap water in the U.S. is often chlorinated (yuck) or mixed with lord knows what but it makes me wonder if it's even suitable to be showering in.

2. It's usually available chilled. Water from any random tap won't be chilled.

3. It comes in a bottle. Yeah, you could carry your own bottle around everywhere, but how inconvenient is that? Having to hold on to it even though it's empty, having to rinse it out, etc. etc.

4. It's ubiquitously available. Even an electronics store will sell bottled water near the registers for impulse buyers.

5. It's fairly cheap. Not as cheap as tap water, of course, but certainly a lot cheaper than a fruit juice.

Now, I don't know if analogies to the music can even be properly construed based on those, but let's give it a shot anyway...

1. How would they make the music 'taste better' than what is available from any download site? Higher bitrate? Would still get pirated. Surround sound? Still digital, still pirated. There's nothing they can do to the actual music itself to make it magically be sold more and pirated less. Even if they came out with raw instrument tracks at 192kHz/96bit and it would weigh in at 500MB per song, it wouldn't matter.. those who would want it would still pirate it, and for those who think 500MB is too much, they'll just grab back to the 3MB mp3 which, to them, doesn't really 'taste worse'.

2. Same arguments as under 1., really.

3. They could 'package' music, but then.. they already do that, don't they? You've got albums with sleeves, covers, booklets, etc. Generally, though, people have stopped caring about those. Those that mildly care about it are even catered to - the sleeves, covers and booklets are included in the album download as high quality JPEGs or better. There's precious few people who really want the physical product.

4. They could start selling music through some generic interface that anybody can embed into their site and get a teensy kickback from it.. but torrent sites, limewire, etc. are - in the world of the internet - just as ubiquitous. There isn't any issue with physical proximity to be considered.

5. Lowering the price beyond what it currently is ($0.49 - $1.99) will do little. It's not like there's a whole lot of people out there saying "Oh, I would buy this song - but $0.99 is just too much. If it were only $0.25, I'd buy it right now!". The average person could probably pick up more than that off the street every year.. and not do it because they money on the street is dirty.. who knows what all is on there, ew.

Yes, they have to find different ways for their larger profits, I agree. And they do.. always have.. concerts, swag, all that. But I disagree with the notion that there's no intrinsic 'worth' to music and should thus be free to distribute by those with no license to do so. That's why, in an older comment to a different story, I suggest that copyright be dismissed entirely because it's untenable, and instead there be more strict enforcement of distribution rights.

Re:What do we think? We don't know!

[Kjella]

That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position. The upload she provided is cancelled out by the one she consumed and in net there is only one extra copy which she could have been bought for $1. If there's 100 people in a swarm there's 100 copies and each person caused 1/100th of that which is 1 copy, only in RIAA math did 100 people each cause 100 copies leading to 10000 infringments.

Re:What do we think? We don't know!

[Theaetetus]

Though most don't provide anything like as many copies as a store.

Sure, but do you think Capitol Records would charge only a few bucks to a tiny music store that's only going to sell a dozen copies? No... In fact, just the accounting is such a hassle, that that's why they'd put on the minimum annual payment amounts.

the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.

As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who walk past, see 1 or more broken windows and throw a rock themselves.

Except that that's the logic in the statute. It doesn't require the infringer to be the sole distributor, or require the infringer to pay damages based on how many people they distributed to. Maybe there's a better way of doing the statute, but if it's a flaw in logic or practice, that's for Congress to decide, not the courts. The courts can only weigh in if it's unconstitutional.

Re:What do we think? We don't know!

[Theaetetus]

That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position.

So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.

Re:What do we think? We don't know!

[Anonymous Coward]

What massive innovation has the RIAA stifled?

I can buy almost any song ever made using my telephone and within a minute or so it will be available for listening, having been downloaded as a I sat in a cafe drinking coffee. It will come with album artwork and maybe even lyrics. My phone can hold many thousands of these songs, play them back in any order either by playlists I've arranged or based on metadata embedded in the song.

Also available are services that, in return for blitting ads to my screen, will create playlists based on some data about me: other songs I like; types of music I like; the mood I'm in; what I'm doing; etc etc, and transmit the songs on that playlist for my listening.

Available on these services is more music than has ever been available in any record store that ever existed on the planet. The cost to get music on them is lower than it has ever been. If an artist chooses he can make music with his home computer and peddle the resulting files himself over the internet. He can make them available through any number of storefronts that will take far less of his profits than any music label ever. Or he can sign up with a traditional label and let them do all that work.

My ability to select music a la carte is greater than it has ever been. If I buy a 'single' and decide later that I want the whole album, the money I've already paid for the single can be credited toward my album purchase. If an album is coming out in a week I can get the first single now and, a week from now, the album will show up on my phone without my having to do anything, and the above credit scenario applies.

What more is it you want?

Re:What do we think? We don't know!

[Anonymous Coward]

you think the RIAA made music-at-our-finger-tips possible?

you are a schmuck.

you know what made it possible? consumers.

consumers that said "fuck your model"

the music industry only begrudgingly made changes.

it's taken decades.

we don't need the RIAA or the industry, they need us.

Re:What do we think? We don't know!

[MobileTatsu-NJG]

I can buy almost any song ever made using my telephone and within a minute or so it will be available for listening, having been downloaded as a I sat in a cafe drinking coffee.

Do you know why you can do that? I'll give you a hint, it ain't cos of the RIAA.

Re:What do we think? We don't know!

[Anonymous Coward]

you think the RIAA made music-at-our-finger-tips possible?

No. You seem to have as much difficulty with general reading comprehension as with capitalization.

They didn't make it possible, but they didn't stifle it either.

Re:What do we think? We don't know!

[Anonymous Coward]

1 & 2.: Live performance is much better than any recording, just ask the thousands of fans worldwide that pay big money to go see concerts, which is basicly the band playing the song but extremely loud.

3. Offering the music in free formats, not limited to certain devices, operating systems, ... We're getting here, but the RIAA does its best to prevent this any way they can.

4. It can be made available ubiquitous, allow not one internet service but all to sell the same songs. The choice of the water bottle companies is to try and sell it in many stores, Apples strategy is to only sell apple stuff in their own stores. Music industry seems to be trying to get as few points of sale as possible.

5. The prices have lowered due to the internet and the availability of much free music, for example radio or MTV. Just like bottled water, they need lower price to compete with that.

Bottled water is a pretty good analogy I think.

Re:What do we think? We don't know!

[QuasiSteve]

I guess their argument was something along these lines...

If you are the only person with a particular track, and one person downloads from you, you have uploaded 1 copy.

Now there's two people with that track.

A third person downloads, but of course ends up downloading from both of you. Making the assumption (since there's so many assumptions in this argument already) that there's an equal distribution, then you just uploaded 1.5 copy and the 2nd person uploaded 0.5 copy. The net result is that there is still only 1 (complete) copy distributed by you.

Now there's three people with that track, fourth person downloads, you upload 0.333... bringing your total to 1.8333.

This is where that argument already starts to fall apart, though.
Four people, fifth person downloads, you upload 0.25, your total is now 2.08333...

But, again, there's so many assumption in this that already ruin it either which way.
E.g. that second person might not upload, themselves, in which case that third person will download only from you. If that repeats for 100 people, you distributed 100 copies all the same.
Similarly you can argue that if you uploaded the whole thing to that second person, but then make your P2P client limit itself to only the first half of the file for the second person to request it, then you'll always be stuck at sharing it only 1.5 times. Set it up to only share the first 15 seconds or whatever and you might even try to argue that you were merely offering a preview of the song.

It seems reasonable to ask the question how many people she actually shared a particular file with, but answering it gets ridiculously complex even if you had the actual data.

But it's rather naive, and flawed, of the GP to think that anybody publicly offering files on a P2P network, and getting downloads from them, only uploaded once by definition.

Re:What do we think? We don't know!

[Anonymous Coward]

So what you're saying is, you think that participating in a conspiracy is going to lower your individual liability? Sorry, does not work that way, ever.

The simple fact is, she had no right to upload even a single copy. Congress, which has the authority, has set a price on unauthorized distribution. All of your blather about 'swarms' and 'ratios' is just smoke and mirrors trying to obfuscate the issue.

Re:What do we think? We don't know!

[Sique]

So why didn't we had that already in 1994 for instance? When amazon.com opened and all the other online shops started? Why did it take until 2003? The technology to compress a music stream was there, MPEG-1 Audio Layer 3 was standardized in 1992. How to download a file was wellknown in 1994, and how to handle payments too (see amazon.com).
So where does the 9 years of postponing come from? People not being able to code online shops?

Re:What do we think? We don't know!

[Kjella]

So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.

No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available. Hence the "making available = distribution" issue, which was dropped. I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.

Re:What do we think? We don't know!

[king neckbeard]

No, but a 1:1 ratio is by definition average. Absent further, reliable data, that is what the safest assumption is.

Re:What do we think? We don't know!

[gman003]

If I were a judge, this is what I would do.

Go out, find what the commonly available price of purchase is for all the infringed songs. Don't bother trying to find "the best deal" or doing some big, exhaustive research on average prices. Just go out to Wal-Mart or go on iTunes, look up all the songs, see what it would cost.

Move the decimal point over one place. If they stole one album ($14.99), their liability is $149.90. If they stole $100 worth of music, they owe $1000. If they're a repeat offender, move it over an additional place (ie. if this you've been in court for it before, that one album is now $1,499).

If the defendant actively distributed it (not just "seeded their torrent", but actually posted it on new sites or made their own torrent or whatever), they're liable for both side's legal fees. Otherwise, each pays their own.

Same applies to any other Intellectual Property. Steal a $60 video game? Pay them $600. Steal a $20 movie? Pay $200.

The multiplier keeps damages reasonably bound to the actual value of the "goods", but also makes it far cheaper to buy instead of pirate. And the legal fees will make the MAFIAA go after the actual "distributors", not people who just download a few episodes of whatever TV show is popular right now. Economically, the only ones worth it are the distributors (because as long as you win, you have no costs), and the massive steal-every-song-made-in-the-past-century pirates who still rack up millions in damages, not the "I'm gonna give this song a listen before I buy it" crowd or the "piracy is *still* easier than buying" crowd.

Re:What do we think? We don't know!

[jxander]

Oh but they CAN bottle music better.

When I go to iTunes/Amazon/etc and download some old Black Sabbath jams, I don't run the risk of having them mislabeled as "Ozzy." They also come with the metadata tags fully filled out, names are all spelled correctly, album art is accurate, and everything else that a music loving person like myself would enjoy. I can download entire albums at the click of a button and have them cataloged, named correctly and set to play in the order originally intended without having to worry if the file of Track 3 contains the first few second of Track 4, making for a messy exchange when listening.

Are these minor things? Well, yeah. They're absolutely minor little nit-picks that probably wouldn't bother the majority of music listeners, when compared with the allure of "free." But then again, bottled water tasting a bit better is a minor thing too, and it certainly hasn't stopped that from catching on. And for me, the conveniences I've mentioned here are WORTH $0.99 per song. I'd rather spend the dollar than go through and fix all that crap myself (because I will be fixing all that crap if I torrent)

Re:What do we think? We don't know!

[MitchDev]

I'd like to see an "Intellectual Property Tax" passed on the rights holders, I bet the songs aren't valued by the holders at 150,000 per track anymore at that point....

Re:What do we think? We don't know!

[Bengie]

I came across this analogy.. paraphrased.

Claiming losses on sales that never happened in the first place is like this.

Say littering gets you a $100 fine. Say if you spent all day littering in front of a police station, you could rack up $5000 in fines. This means if you don't litter, it's like saving $5000/day, which means people who don't litter at all are "saving" more than $1.8mil/year. They're all rich!

Re:What do we think? We don't know!

[gnasher719]

"that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record,

That number would be nonsense. Apple has about 20 million songs. 20 million times $15k = 300 billion dollars. And they sold a total of about 19 billion songs (estimated from Wikipedia date for 10 billion and 15 billion sold). So that would be about $16 per song sold.

But there _are_ comparable contracts. UK newspapers have been giving away CDs full of music for free for quite a while. It would be interesting what lets say The Sun paid for the rights to give away a CD with 20 number one hits for free with every copy of their newspaper. I bet they didn't pay 20 times $150,000.

Re:What do we think? We don't know!

[king neckbeard]

Congress did not set a price. They set a minimum and maximum for statutory damages. The judge reduced the award to 3 times the minimum,

Re:What do we think? We don't know!

[MitchDev]

It's "cheaper" and less legally risky to go to the store and shoplift the CD or game than it is to Download it...

Re:What do we think? We don't know!

[Nerdfest]

In 1994 it wasn't feasible because of space restrictions on computers and players, and to a degree, download speeds.

Re:What do we think? We don't know!

[Theaetetus]

"that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record,

That number would be nonsense. Apple has about 20 million songs. 20 million times $15k = 300 billion dollars. And they sold a total of about 19 billion songs (estimated from Wikipedia date for 10 billion and 15 billion sold). So that would be about $16 per song sold.

... I'm not sure you understood the words I typed. Let me help. When I said "minimum of $15k for any work per year since you don't have an established track record," I meant that something like a minimum amount due would be required for people who don't have an established track record. Apple, as you note, has an established track record. Therefore, that clause wouldn't apply.

Does this make more sense now? Apple sells $19 billion songs, so they'd pay $8.3 billion in royalties.

But there _are_ comparable contracts. UK newspapers have been giving away CDs full of music for free for quite a while. It would be interesting what lets say The Sun paid for the rights to give away a CD with 20 number one hits for free with every copy of their newspaper. I bet they didn't pay 20 times $150,000.

In the case of the Sun, the record companies are also getting access to the Sun's wide subscriber network and (albeit questionable) reputation - again, they're an "established" player. While interesting, such a license agreement wouldn't be applicable to the brand new "Bob's Online Record Store", which lacks any market branding, subscribers, advertising power, etc.

Re:What do we think? We don't know!

[rastoboy29]

What is unrealistic about a string of bytes having a value of $0?

Do you have trouble with computer? ;-)

Re:What do we think? We don't know!

[aaarrrgggh]

Hate to jump on this war, but wow... you are so wrong! The historical stifling is hopefully something that no reasonable person can deny-- the attacks that the RIAA made on Mix-Rip-Burn, the adherence to the album model long after it was dead, and killing sites that made it possible for people to discover music and become music consumers again.

Even today, the RIAA doesn't like the model that is out there-- they really want to push a limited catalog of super-hits, and generate ongoing revenue from their back catalog that has been purchased over and over again based solely on the need to media shift. They also are responsible in a large part for the complexity in international music sales, the challenges of internet radio, Pandora, and the like. They serve to promote formulaic music that is most likely to be successful.

While I can't speak for everyone here, the real problem isn't just the RIAA, but the MPAA and whatever the comparable association is for television. Copyright extension to its current level is one of the biggest problems, but their push for additional revenue streams is even worse. All three associations need to regroup (RIAA has come the farthest) and re-align themselves to the brave new world.

(And yes, I realize the RIAA does not do anything, they are simply a trade group for the labels. The transgressions of the labels and RIAA are much more easily lumped under a single umbrella.)

Re:What do we think? We don't know!

[Theaetetus]

No, but a 1:1 ratio is by definition average. Absent further, reliable data, that is what the safest assumption is.

Ah, but we have reliable data. MediaSentry downloaded files from Thomas. Thus, there's no need to rely on an "average" assumption.

Plus, your average assumption is averaged across both seeders and leechers. Therefore, by definition, it's not an average of typical distributors. Accordingly, it's not even reliable data for the proposition you're advancing - that a typical distributor only distributes once. In fact, since leechers exist, it means that the average upload/download ratio for distributors must be greater than 1:1.

Re:What do we think? We don't know!

[Kjella]

Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."?

Yes, but if a burger store made a joke a sold one single dollar meal calling it a McDonald's meal, McDonald's couldn't argue that because the only way to legally serve a McD burger is to pay a $15k franchise fee, their actual damages from lost sales is $15001 (they could possibly argue loss of reputation though). Any sane judge would reason that this customer would then likely have gone to a real McD and paid $1, which is the only actual loss.

Re:What do we think? We don't know!

[Theaetetus]

But it's rather naive, and flawed, of the GP to think that anybody publicly offering files on a P2P network, and getting downloads from them, only uploaded once by definition.

Agreed, though I believe his argument was that if there are 20,000 complete downloads of a particular track, there must have been 20,000 complete uploads (split across any number, as you note), so therefore it's an average of 1:1. It has the flaw you note, and an additional one: it assumes no leechers. If 10,000 people leeched, then the ratio suddenly becomes at least2:1 for the seeders, averaged out. Even a single leecher puts the average above 1:1.

Re:What do we think? We don't know!

[icebike]

That's right, keep attacking the messenger instead of the message.

This is the internet, not a college term paper. On the internet, we overlook minor typos, misspellings, awkward sentence structure, and Anonymous Cowards.

Re:What do we think? We don't know!

[Theaetetus]

So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.

No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available.

Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.

Hence the "making available = distribution" issue, which was dropped.

Again, not so. Capitol is still arguing that issue (it makes the higher damages much more reasonable) and it's one of the primary issues on appeal. In her reply brief, Thomas waived that issue, saying it's moot... but it certainly hasn't been dropped.

I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.

Only if no leechers exist. If even a single leecher exists, then the average non-leecher peer in the swarm must contribute more upload bandwidth than it consumed downloading, by definition. And we know a leecher exists - MediaSentry.

Re:What do we think? We don't know!

[bipbop]

And CPU. Remember when we graduated from MP2 to MP3? I needed a new computer just to play them!

Re:What do we think? We don't know!

[Rasperin]

Not only all of the above, but the copyright laws make it hard to create a valid small business with new ideas and concepts. You have to fight and essentially be ventured by the RIAA or MPAA to start a media serving company. They crush any new ideas that aren't restriction on media access, and if they can't crush them they fight tooth and nail to allow them. See iTunes when it was originally released, the RIAA fought it hard to stop apple. Pandora ended up in court several times with the RIAA before they allowed it to go through. And this is just the RIAA, let's not even start with the MPAA and their content restrictions. How they've destroyed many online rental companies, forcing companies like Hulu (which is owned by the MPAA) to check if you have cable (coming soon to a computer near you!).

Re:What do we think? We don't know!

[Anonymous Coward]

When the replies come from posters who lack reading comprehension, you get the straw man arguments that we see above. Being able to understand what you've read is important when you feel the need to reply to it.

As far as grammar goes, all I ask is that you make more sense than I do when I'm drunk. That's a pretty low bar.

Re:What do we think? We don't know!

[Culture20]

But it was there in 1995 and 1996. Plus by 1997, the general public was into the web enough that website URLs were regularly in TV commercials. That's still six years away from 2003. There was a concerted effort on the part of the RIAA to stifle electronic media because it would cut into their tape/CD sales. Even when iTunes started up, there were draconian price and DRM rules from the RIAA that stifled innovation and generated ill-will. Apple had to drag them kicking and screaming to their senses.

Re:What do we think? We don't know!

[ThePhilips]

You are sort'a right. But not really.

I still have around somewhere the first CD-Rs from around 1996-1998 filled with the MP3s of the music which was literally impossible to buy at the times. CD-R were rather expensive - but it was worth it. Cheap harddrives were already 2-4GB in size. For some of my friends, fans of death metal, the warez channels (P2P wasn't yet widespread enough) were pretty much only way to acquire some of the music (at good quality). Some of the world music and classical performances picked at the times I still can't find on CDs/better to this date.

And download speeds were not that bad either: you just queue stuff up in the evening and voila - next day morning it's finished! If something larger - leave it for the weekend. In a way, the Internet was faster in the times: I never had to wait for download to finish. :)

Re:What do we think? We don't know!

[AmiMoJo]

The amount isn't based on what they "stole", it is based on what they supplied to others. The RIAA argues that if you upload a song on a P2P network it can potentially go to thousands of people. They want to be paid for all of those potential "thefts", hence the massive multiplier.

It seems odd they can be awarded for losses they can't prove.

Re:What do we think? We don't know!

[QuasiSteve]

Personally I don't have trouble with computers - though I do have trouble understanding how that even factors into this discussion.

The unrealistic aspect of "a string of bytes having a value of $0" lies in what that string of bytes constitutes.

Presume for a moment that the string of bytes is, in fact, the original studio recording before it goes to any CD pressing outfit. (ignoring the CD mastering people, etc. for a moment here).

The value of that string of bytes is then rather high. You can say that "well anybody can copy it, so it's $0" - but not anybody can copy it, because there's only two data carriers that have it that are under fairly strict access controls.

You could argue that "it's still $0 because maybe nobody will actually buy it", but then we're getting into the realm of philosophy more than the everyday reality.

If you want an analogy: I kidnap your family and by paying me a certain amount of money, whatever you feel your family is worth when expressed in the currency of choice, I will e-mail you the GPS coordinates of where you can find them, completely unharmed albeit rather shocked I'm sure.
What is of value of you there is the location. You don't even care that they're GPS coordinates. You also probably couldn't care less if I'd send it to you carved in stone and sent by a flock of carrier pigeons. But the fact is that I'm e-mailing them to you, and that means bytes. Suddenly, those bytes become very, very precious to you indeed.

Obviously MP3s on the internet have no such scarcity. The everyday reality is that songs are sold for, say $0.99. Of course those same songs are also pirated for, typically, $0. The person selling it thus believes the value to be $0.99 (minus fees), the person pirating it believes the value to be $0. Which one is philosophically / technically / morally right vs which one is legally right can often be opposing views which gets rather clouded with the intricacies of the internet.

Re:What do we think? We don't know!

[Anonymous Coward]

Why on earth would you want to listen to music on a phone?

Re:What do we think? We don't know!

[dbcad7]

How bout they make Thomas pay 5 times that 33 % of her gross sales !!.. That'll learn her !

Re:What do we think? We don't know!

[Shagg]

Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.

What about contributory infringement? If the only proof of an upload was induced by an agent working on behalf of the copyright owner, is that really infringement?

Re:What do we think? We don't know!

[Theaetetus]

How bout they make Thomas pay 5 times that 33 % of her gross sales !!.. That'll learn her !

Since she doesn't have an established track record in the industry, they'd probably set a minimum, as I suggested. So yes, make Thomas pay $15k for each of the songs she wanted to distribute as an advance on that 33% of her gross sales.

Re:What do we think? We don't know!

[Sique]

No, we were already using MP3 to burn them to CD in 1994, because thus you could easily get the contents of 10-12 Audio CDs onto a single CD-RW. So space was not an issue. A 2-GByte-HD was able to take the contents of 30 CDs, which was completely ok at the time.

Re:What do we think? We don't know!

[jedidiah]

> What massive innovation has the RIAA stifled?

The very one you gush over. RIAA fought it tooth and nail. Even when they relented a tiny bit, they still installed Apple as a new monopoly.

Re:What do we think? We don't know!

[Prune]

What a bunch of bull. Bottled water is several orders of magnitude more expensive than tap water, has in some studies been frequently detected to contain MORE contaminants than tap water (including bacteria), and causes an enormous increase of pollution not just because of the plastic bottles, but because most of it has to be transported significant distance.

Re:What do we think? We don't know!

[spire3661]

Mp3.com sends its warmest regards .... from the grave. You are a fucking moron if you think that IP hasnt held back technological progress. Every smartphone should have an 'airdrop' like functionality by now. The reason we dont is copyright cartels.

Re:What do we think? We don't know!

[jedidiah]

There's only one problem with that argument: Napster.

Re:What do we think? We don't know!

[jedidiah]

The more relevant question is why would want to buy it on a phone?

Sure. Load it up at home. Although you also need to be easily get it back off again. The way tech has progressed, a phone makes a handy portable hard drive.

You can carry around ANYTHING, not just music.

Although this only works if your phone vendor allows it.

Re:What do we think? We don't know!

[icebike]

The multiplier keeps damages reasonably bound to the actual value of the "goods", but also makes it far cheaper to buy instead of pirate.

Not really. Its still cheaper to pirate. Price ZERO is still cheaper than price 99cents.

The receiver (the downloader) pays nothing now, and nothing under your plan. They received a "gift". Its virtually
impossible to catch them as long as they avoid bit torrent re-seeding.

The supplier (the uploader or pirate server) pays nothing now, and maybe a few hundred dollars under your plan.

Even if you catch the uploader in the act, they are not going to tell you how many people they uploaded to. They will say
I only saw one downloader. They sure aren't going to keep logs.

So you've fixed the maximum penalty at 10 times market cost for each seeder, regardless of how many times
they distribute the item.

Re:What do we think? We don't know!

[Anonymous Coward]

I've always wondered about the whole 'leecher only' theory, whether that would pan out at all. After all, that's the whole way torrents work... as you download, you're also making available. But say I cap my upload speed at 1k/s (since there appears to be no option in utorrent to completely kill it). Could I be fined a 100k or whatever for having uploaded 17kb's of the song? I could attempt to argue I was actively attempting to NOT upload it, and that the amount of data transfered is probably less than that of the text of this post... but I don't have access to lawyers that make more in a day than I make in a year.

Re:What do we think? We don't know!

[icebike]

You must be new here.

Moderating is not a job. Its a randomly handed out optional task to normal users.

Unfortunately a significant number of these volunteer moderators use it as a Disagree/Agree scale rather than
pay any attention to the content or reasoning in the post.

As to your arrogance of commenting on the IQ of an entire community based on the graffiti of the few, I'm not sure it does much to further the discussion, but it probably allows you to thump your chest a bit and feel all smug. Congratulations: You've "Won the Internet".

Re:What do we think? We don't know!

[jedidiah]

That's not reliable data.

On the other hand, there should be some record of what her download ratio actually was. There should be no reason to guess it. Without that information, all she ever did was to "make something available".

MediaSentry doesn't count and self serving assumptions aren't good enough.

The RIAA is supposed to be proving something.

Re:What do we think? We don't know!

[Anonymous Coward]

you say spend $0.99 then fix all that crap per song but when dealing with an album you are spending $10-15 i assume never bought an album lol

Re:What do we think? We don't know!

[Anonymous Coward]

So why didn't we had that already in 1994 for instance? When amazon.com opened and all the other online shops started? Why did it take until 2003? The technology to compress a music stream was there, MPEG-1 Audio Layer 3 was standardized in 1992. How to download a file was wellknown in 1994, and how to handle payments too (see amazon.com).
So where does the 9 years of postponing come from? People not being able to code online shops?

From one of the replies above. So who's the one that lacks reading comprehension? By the way, that reply was posted half an hour before your reply.

Re:What do we think? We don't know!

[Anonymous Coward]

How is a service that started in 1999 relevant to 1994?

Re:What do we think? We don't know!

[psydeshow]

What massive innovation has the RIAA stifled?

Think about how easy it is to share photos and albums with your friends and family.

Now why isn't it just as easy to share music? Try to share a music track or a playlist from your phone.

Generally speaking, text, images, and video (copyrighted or not) are easily shareable via social software. But audio, not so much.

Re:What do we think? We don't know!

[Anonymous Coward]

I didn't say "all" replies are from people who lack reading comprehension.
IIRC, the post you're quoting wasn't modded up at the time I made my post.
The post you're quoting wasn't a reply to the GP, although I wasn't really concise in relaying that I was only looking at the GP's replies

So who's the one that lacks reading comprehension?

In this case? Not me.

Re:What do we think? We don't know!

[QuasiSteve]

I'm not sure which part you're trying to call out as 'bull' per se.

For the record, I agree with you. I actually do bring my own bottle when possible and when I do want something to drink somewhere else, I'll actually buy that fruit juice tyvm.

But I'm pretty sure none of what you mention has any bearing on why bottled water is popular, which is what the comment was about.
Despite being more contaminated, for example, it still tastes better than chlorinated water. Yes, if you have a Brita filter or just let it stand for a while, most of that taste will go away. But who wants to deal with that? Not people on the road, clearly.
And of course it's more expensive than water from the tap - but the comparison was to fruit juice. If you can walk into any random store and get water from the tap there (again, bring your own bottle, etc.), feel free to. But a lot of people won't do even that because who knows what's been touching that tap.

Anyway - highly off-topic, we'll save it for a Slashdot story about bottles, perhaps :)

Re:What do we think? We don't know!

[omglolbah]

Make it so easy that I wont bother pirating.
Steam did this to me... I used to pirate every single game...

Now I have a handful of pirated games left, mostly because they're actually hard to buy now due to age :p
80+ games in my steam list now... scary.

Every time I see one of those "Get all the games from X publisher 70% cheaper!" I go 'squeee' and end up blowing 30-50 euro on the pack if it has a few games I used to like or have played in the past. Especially if they are multiplayer so that I can have everything when friends want to play 'something' but haven o clue what we all have :p

Make it cheap, and make it easy. If both those are satisfied I wont bother pirating.

Re:What do we think? We don't know!

[hazah]

More often than not, bottled water IS tap water.

Re:What do we think? We don't know!

[Solandri]

That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

Nope. That is an artificial distinction crafted to fit the terminology of copyright law. The copyright holder can legally control distribution, so to be a copyright violation the accused must be distributing - i.e. uploading. The RIAA plays it up for all its worth because that's the only legal leg they have to stand on.

If a million people share a song, by definition there are 1 million downloads, and 1 million uploads. On average each filesharer is responsible for one upload.

Put another way, say Thomas shared the song with 100,000 other people. The RIAA's current legal theory is that she is responsible for those 100,000 uploads. So they sue her, win, and somehow extract damages from her. By their argument, the other 100,000 filesharers are innocent of any wrongdoing. They caught the one person responsible for uploading the song to those 100,000 other people who downloaded the song. Since the guilty party in those 100,000 uploads has been convicted and punished, there is no further crime. Those 100,000 other file sharers are free and clear.

So which will it be? Each file sharer is responsible for one upload? Or one filesharer is responsible for all uploads and everyone else is innocent? You can't have it both ways, where among 100,001 filesharers, each and every sharer is responsible for the crimes of the other 100,000. This incidentally is why their damage figures are so unrealistic. If a $1 song is shared n times, damage should be $1*n. But the way they're calculating it, it works out to $1*n*(n-1), which quickly exceeds the GDP of the world. n is the number of filesharers, and (n-1) is the number of people they uploaded to.

Re:What do we think? We don't know!

[Prune]

As far as I'm aware, most municipalities have switched away from chlorine to chloramine, which imparts no detectable flavor on water.

Re:What do we think? We don't know!

[Anonymous Coward]

Let's not forget the tools in place by rights holders that flag original works as "copyrighted material". This has happened many many times. DMCA take down notices served over material that was wholly original to the author.

To the *IAA types, they own the rights to everything, even the stuff they don't own the rights to.

Re:What do we think? We don't know!

[tom17]

IANAL. I am about half way through the audio now and a few things strike me...

1. The RIAA lawyer is constantly talking about re-interpreting the written law in different ways. At one point he said to the judge, something along the lines of "Your honour should not read that exerpt of the law literally". Really? Don't interpret written law literally? Just make it up as you go along?

2. A little later, the judge was talking to the defendants lawyer about redoing the first trial and said "You rolled your dice with the first trial and lost". Really? This whole trial is, metaphorically speaking, a big old dice rolling experiment? Sounds about right.

Re:What do we think? We don't know!

[Theaetetus]

Nope. That is an artificial distinction crafted to fit the terminology of copyright law. The copyright holder can legally control distribution, so to be a copyright violation the accused must be distributing - i.e. uploading. The RIAA plays it up for all its worth because that's the only legal leg they have to stand on.

You seem to forget that "copying" is also a copyright.

If a million people share a song, by definition there are 1 million downloads, and 1 million uploads. On average each filesharer is responsible for one upload.

Actually, the last person to download, by definition, would not be uploading, and so therefore each other file sharer must - on average - be responsible for more than one upload.

Plus, this ignores the existence of leechers. And we know leechers exist, because there was specific testimony from a leecher in this case - MediaSentry. Once you acknowledge that, then the average number of uploads from each seeder is higher by definition.

Put another way, say Thomas shared the song with 100,000 other people. The RIAA's current legal theory is that she is responsible for those 100,000 uploads. So they sue her, win, and somehow extract damages from her. By their argument, the other 100,000 filesharers are innocent of any wrongdoing.

Not so. You've missed joint and several liability. It's possible for someone to sue both the uploader and the downloader and claim that they are entitled to X in damages, with the uploader and downloader figuring out who pays what between them. Now, if the uploader pays everything, they can't collect more from the downloader... but that just means they've collected all their damages, not that the downloader is innocent - rather, they are indemnified.

They caught the one person responsible for uploading the song to those 100,000 other people who downloaded the song. Since the guilty party in those 100,000 uploads has been convicted and punished, there is no further crime. Those 100,000 other file sharers are free and clear.

Additionally, this also ignores copying as infringement.

So which will it be? Each file sharer is responsible for one upload? Or one filesharer is responsible for all uploads and everyone else is innocent? You can't have it both ways, where among 100,001 filesharers, each and every sharer is responsible for the crimes of the other 100,000. This incidentally is why their damage figures are so unrealistic. If a $1 song is shared n times, damage should be $1*n. But the way they're calculating it, it works out to $1*n*(n-1), which quickly exceeds the GDP of the world. n is the number of filesharers, and (n-1) is the number of people they uploaded to.

Fortunately, they don't use those damage figures in court. They use the figures Congress came up with, so any complaints about RIAA's questionable math are irrelevant unless we're talking about propaganda.

Re:What do we think? We don't know!

[Anonymous Coward]

The huge difference between your argument and this case is that iTunes is making money off each track. Thomas was not.

Re:What do we think? We don't know!

[Theaetetus]

That's not reliable data.

...

MediaSentry doesn't count and self serving assumptions aren't good enough.

Why doesn't MediaSentry count?

The RIAA is supposed to be proving something.

Yes, damages. Not whether she infringed. Thomas already admitted to infringement.

On the other hand, there should be some record of what her download ratio actually was. There should be no reason to guess it. Without that information, all she ever did was to "make something available".

Yes, but unfortunately for Thomas, she destroyed the hard drive that would show that actual ratio and potentially rebut MediaSentry's records and testimony. She also lied about its existence, so she's not really going to do well without any proof.

Re:What do we think? We don't know!

[cHiphead]

They tried to sue mp3 players out of existence. Rio anyone? Remember MP3.com? Remember their digital locker attempt and RIAA claiming the world would end over it? Who DIDN'T they sue? Even Apple was a target but managed to force it down their throats with iTunes.

Re:What do we think? We don't know!

[suutar]

They didn't make it possible, but they didn't succeed in stifling it either.

At the risk of falling into meme-hell... FTFY

Re:What do we think? We don't know!

[bws111]

So what? The purpose of copyright is to foster the creation of new works, not to prevent somebody from making money. The damage to the copyright holder does not change based on the motives of the infringer.

Re:What do we think? We don't know!

[Anonymous Coward]

[] and generate ongoing revenue from their back catalog that has been purchased over and over again based solely on the need to media shift.

If Napster and its suit defense proved anything it was that the Copyright laws allowed for the storage and recovery of music lost. The recovery to be by any means necessary (short of shoplifting). Further those who downloaded but not uploaded were mostly dismissed from the suit.

Re:What do we think? We don't know!

[rahvin112]

You listed a lot of benefits of bottled water.

Did you know that bottled water is 95% of the time bottled tap water? (there are very few brands that are genuine untreated spring water, most that claim spring water are less than 10% spring water or the spring being counted is feeding the tap water) Often from the scummiest and oldest drinking system in the city that serves the industrial area where the water was bottled is the water in your bottled water. The most popular and cheapest brands are bottled tap water processed at your local coca cola or Pepsi bottling facility. Oh sure they might run it through a sediment filter and they might ozoneate the water before bottling but it's a crap shoot on that and generally none of what they do takes the residual chlorine out or any of the impurities present in the tap water (all the arsenic, iron, lead and other contaminants are still there).

I can understand buying bottled water for convenience, and I can even understand buying it occasionally for taste (typically all they do is add mineral content that's lacking in some non-ground water based tap water systems). But anyone that buys this shit because they think it's better than the stuff in their tap needs to stick to smoking rock rather than thinking. Bottled water is the biggest fucking scam in the world, they are taking your tap water, putting it in the bottle and selling to back to you at a higher price than gasoline and milk, and in fact usually higher than what the soda costs bottled in the same facility with the same water and bottles.

It's kinda funny actually how the soda industry turned around and convinced the public to buy the same bottled drinks from them without the CO2, sugar and flavorings at a higher price and it's nothing more than bottled tap water.

Years ago the US had the best water in the world. During the 50's we built and put in operation state of the art water treatment that made most US tap water the envy of the world for cleanliness of water and dramatically reduced natural soluble containments. The EPA standards for common contaminants is so low in many instances that tap water is cleaner than any water source in the state. Slowly this quality of water is being degraded, not by contamination or such, but because the populace has been unwilling to maintain and upgrade the treatment systems. They'd rather pay 40000% the price and have coca cola bottle up the same tap water rather than pay less than a penny a gallon to have the water system improved. Personally I blame the Baby Boomers and their incredibly selfish outlook on life. Most cities could bond out with a price increase in the penny per gallon range and build state of the art treatment plants and at the same time upgrade the piping infrastructure but these small water rate increases are invariably shot down by the public because they can't afford to pay $5 extra month when they are spending $100 a month on buying bottled tap water.

Re:What do we think? We don't know!

[bws111]

You just advocated not interpreting written law literally ("Don't interpret written law literally") and making it up as you go along ("Just make it up as you go along"), right? What's that? You mean by taking just an excerpt of what you said it completely changes the meaning, and those excerpts should not be taken literally? Shocking!

As far as this case goes, yes, it was a dice rolling experiment by the defendant. She did not have a legal leg to stand on, and thought she could just replace that with destroying evidence, lying, etc, and maybe she could snow them enough to somehow win. It did not work.

Re:What do we think? We don't know!

[Anonymous Coward]

Cheaper still and makes far more sense if we just stop pretending 1's and 0's are unique and special and worth paying for.

Re:What do we think? We don't know!

[tom17]

I was advocating nothing, I was questioning it.

Re:What do we think? We don't know!

[Anonymous Coward]

Add to this that all I need to do is sign into my steam account,
even if my computer broke, or I had to reformat and no issue at all to download the game again.
Heaven forbid my music collection should be so easy

Re:What do we think? We don't know!

[bws111]

No shit. But by my taking just excerpts from your statement, I can make it appear that you were advocating. Yet you make the claim that when a lawyer says "don't take an excerpt of a law literally" it is some kind of indication that he thinks the entire law is not to be taken literally.

Re:What do we think? We don't know!

[Anonymous Coward]

This is the internet, not a college term paper. On the internet, we overlook minor typos, misspellings, awkward sentence structure, and Anonymous Cowards.

In Soviet Russia, Anonymous Cowards ignore you!

Re:What do we think? We don't know!

[tom17]

I think that was just my bad wording, what I was trying to say was that he was basically telling the judges to ignore what was written down. Do you know the part I am talking about? I cba looking for it and typing it all out word for word. I was just pointing out that it seemed quite telling (to me, as an IANAL).

Re:What do we think? We don't know!

[jedidiah]

> How is a service that started in 1999 relevant to 1994?

That which was debatable in 1994 was undeniable in 1999.

The market was ready.

The technology was ready.

The industry fought against the future tooth and nail just like they always have. They are an entrenched oligopoly. They have no self-interest in innovating. They guard the gates and take a large vig.

Many of us could claim that the market and technology were ready earlier. Rather than being mired in an argument about who has the better memory, a bold, clear, and undeniable example is far more efficient.

Most of my MP3 collection predates Napster.

Re:What do we think? We don't know!

[sjames]

It does fly in the face of legal principles unless those subsequent sharers are off the hook since the damages have already been taken care of. You don't get to collect damages over and over again.

Re:What do we think? We don't know!

[sjames]

People are encouraged to seed for a while and try to maintain a ratio above 1 (many choose 2), so that would be $2 per song for the more community minded and <$1 for the leeches. A really dedicated seeder might do $20 worth of damage.

Re:What do we think? We don't know!

[Anonymous Coward]

Nowhere is using mods for agree/disagree more prevalent than in articles that touch directly on politically incorrect subjects. Most of the time, Slashdot moderation is actually pretty good.

Re:What do we think? We don't know!

[Theaetetus]

It does fly in the face of legal principles unless those subsequent sharers are off the hook since the damages have already been taken care of. You don't get to collect damages over and over again.

They are - though they are not "innocent" as some have suggested. Rather, they're indemnified due to the fact that Thomas has (or will have?) paid the damages in full. Prior to that, they are both joint and severally liable.

Re:What do we think? We don't know!

[gnasher719]

... I'm not sure you understood the words I typed. Let me help. When I said "minimum of $15k for any work per year since you don't have an established track record," I meant that something like a minimum amount due would be required for people who don't have an established track record. Apple, as you note, has an established track record. Therefore, that clause wouldn't apply.

I understood perfectly well what you wrote. And I said it doesn't make any sense, because it doesn't. There was a time, long long ago, when Apple didn't have a proven track record. They started with 700,000 songs. 700,000 times $15k = 10.5 billion dollars. I'm quite sure Apple didn't pay 10.5 billion dollars to the record industry in 2003, mostly because they didn't have that amount of money.

In the case of the Sun, the record companies are also getting access to the Sun's wide subscriber network and (albeit questionable) reputation - again, they're an "established" player. While interesting, such a license agreement wouldn't be applicable to the brand new "Bob's Online Record Store", which lacks any market branding, subscribers, advertising power, etc.

Your argument doesn't make any sense at all. If a seller isn't good at selling music, the record company gets less money for copyright licenses, not more.

Re:What do we think? We don't know!

[anagama]

As another data point -- I bought my first MP3 player in 2000 or 2001 -- a Creative MG II ... without a doubt, it had one the most unintuitive UIs ever created. It had built in memory of 64mb -- about enough for one album at good quality, and two or three at lousy quality. It did have a memory card slot so you could triple the capacity with 128mb card but back then, those cards were pricey.

Anyway, it might be fair to say that even as recently as 2000, the consumer tech for the players we enjoy today just wasn't there yet. Having a portable MP3 player back then was functionally equivalent to have a a mix tape or two.

Re:What do we think? We don't know!

[sjames]

I'd like to see that battle in court! As I downloaded this song from Thomas, I get a free pass!

Re:What do we think? We don't know!

[ghostdoc]

The massive innovation that they're scared of is that the market changes so that musicians and their customers don't need music labels.

The music labels formed to deal with the inherent complexity and risk of recording music onto vinyl. Now we don't need vinyl, do we need the recording industry?

Can we (please!) go back to lots of musicians making an average living from playing music, rather than a very few musicians making vast fortunes and the overwhelming majority making nothing?

In that world, there's no room for huge bloated recording and distribution companies, and no need for the *IAA.

Be interesting to see how this applies to movies though... pre-film we had itinerant groups of players who staged performances. Wonder if that could work for film if the technology makes the sets cheap enough?

Re:What do we think? We don't know!

[WarmBoota]

Losing my mods to reply. Like everything to do with media, the reason was not because it was technically impossible, but legally impossible. Do you recall the Diamond Rio? Mp3.com? Few folks do. They were the first commercial mp3 player and most popular site for mp3 music and they were pretty incredible at the time. Diamond had to fend off lawsuits after releasing the device. Mp3.com was sued into oblivion and now there's Google Music, Amazon Cloud, and Apple's copycat offering. Apple had considerable capital and in a post-Napster world there were more execs interested in a legitimate model for downloading music. THAT's why the RIAA is killing innovation. Jeez, it's not like this is ancient history....

Re:What do we think? We don't know!

[NewYorkCountryLawyer]

I think that was just my bad wording, what I was trying to say was that he was basically telling the judges to ignore what was written down.

That's exactly what he said. The judge said something like "the statue requires that there be a sale or other transfer of ownership, or a rental, lease, or lending. So you agree that that occurred here?" The RIAA lawyer responded "well your honor you have to read the statute holistically".

I.e., the RIAA lawyer was asking the judge to ignore the clear words of the statute. Only an RIAA lawyer would have that much chutzpah. This guy was really struggling.

Re:What do we think? We don't know!

[tyrus568]

Boy, how can I forget that! It said I was going to be sued by Metallica for downloading one of their albums off Napster at the time. I laughed my ass off when I got that email. I found it hilarious, but I guess if Lars jumped me outside of my house and beat the living crap out of me I might have felt differently. Since that didn't happen, it sure made me think that Metallica was just a bunch of little bitches.

Don't get me wrong, I'm a pussy, but damn did that make them look like cunts.

Re:What do we think? We don't know!

[Nyder]

Bottled water is a fairly poor example, though.

Bottled water is highly popular in the U.S., as far as I've been able to tell, because of a few reasons: ..

3. It comes in a bottle. Yeah, you could carry your own bottle around everywhere, but how inconvenient is that? Having to hold on to it even though it's empty, having to rinse it out, etc. etc.

...

You rinse out a bottle that was carrying water? Really?

Curious, do you rinse it out with the nasty faucet water you were harping about?

Re:What do we think? We don't know!

[tom17]

That is exactly the part I was referring to. Thanks :)

Re:What do we think? We don't know!

[WrecklessSandwich]

No really though...

Re:What do we think? We don't know!

[mcgrew]

What massive innovation has the RIAA stifled?

The use of peer to peer file sharing, an excellent method of getting your music to people's ears that independant artists have used for over a decade. The RIAA is only against file sharing because they have radio. The fight against "piracy" is really a fight against their independant competetion.

They (and their criminal co-conspirators in the MPAA) also stifled artistic innovation by bribing Congress into passing he Bono act. Art is like science and engineering, in that every new innovation is built on what has come before. Imagine how technological innovation would stagnate if patents lasted as long as copyrights?

Re:What do we think? We don't know!

[QuasiSteve]

What a peculiar reply.

You rinse out a bottle that was carrying water? Really?

Well I rinse mine out mostly because it carries mixtures of water and fruit, but it's generally a good idea to rinse a bottle you plan on using again anyway, especially if you've been eating and use that bottle. Should be a video on YouTube somewhere showing what happens when you drink from a bottle.
Keep in mind I said 'rinse', not 'sterilize at nearest hospital cleaning station'.

Curious, do you rinse it out with the nasty faucet water you were harping about?

We have awesome faucet water here, but no - I certainly wouldn't do it with the nasty faucet water I briefly mentioned (not sure why you seem to feel offended).

Re:What do we think? We don't know!

[peawormsworth]

There's only one problem with that argument: Napster.

Exactly. The distribution companies are at a loss to explain why they dont meet the demands of easier access and supply of their content. The simple answer is that they need to continue to justify the huge portion of income they steal from the profits made from the artistic works. Reality is that the process of distribution is now dirt cheap and there is little reason for an artist to choose them when others can do it cheaper and more efficiently. So instead of embracing the revolution in "free" distribution they fight anyone who performs it for them.

There was a time when they needed to make physical products like records, tapes, 8 tracks, CDs, VHS, DVDs and Blue Rays. Then they had to pay trucks and planes to deliver this product to stores. Then they had to market the product and pay radio and tv to create desire in potential consumers. Then they had to cover the cost of the media sitting on the shelf until the customer bought it.

The primary cost of distribution is now entirely paid for by you the consumer. You pay the ISP for Internet access and bandwidth and that is the primary cost of distribution now.

Major distribution companies should and will (IMO) die soon. Or they should reduce themselves to a much smaller portion of profits... as they are no longer the most expensive link in the process. But until artists and consumers understand and expect this, they will fight to continue the process as long as possible and sue the pants off anyone who dares to prove it is true.

The future is either: artists will make a lot more money from their work... or consumers will pay a lot less for content. Either of these outcomes means that there will be less money for distributers and they already know it.

Re:What do we think? We don't know!

[peawormsworth]

Anyway, it might be fair to say that even as recently as 2000, the consumer tech for the players we enjoy today just wasn't there yet. Having a portable MP3 player back then was functionally equivalent to have a a mix tape or two.

So u say u went out and paid for something u already had and didnt need? I dont think so. The arguement u present is exactly opposite to the real action u made. I mean u put ur money down for the technology, so obviously u wanted the advance in technology that the distribution companies were not supporting. Wasnt the first MP3 makers sued out of business by the distributors? And u cant simply say that because technology is better now that it had no value before. This will always be the case in the beginning... but even in the beginning it was obvious that this was the future and it was being resisted by those in the position and with the money to make it happen. Having a couple mix tapes is not even close to having an instant searchable set of songs. Blank tapes cost money and the source tapes u used to painstakingly make them from had to be purchased with 10 songs on it, when u only really wanted 1. And u had to have two tape players to record the song u wanted. And u had to queue it up to the proper point on both tapes to make a non-perfect copy. And then the tapes were physical and you would have to rewind and fastforward the entire tape occassionally to fix the tension in it. And sometimes the player would "eat" the tape and u lose everything.

You knew all of this at the time and that is why you made a wise and informed purchase when u paid for it. Just because technology is better and cheaper and more functional now, doesnt mean that there was no case for it in the past. I think u may have just forgot what u were thinking back in 2000.

Re:What do we think? We don't know!

[anagama]

Here's a few yoyoyoyoyoyoyoyoyoyoyo for the next time you need to use the word "you."

Anyway, it wasn't necessarily a wise purchase -- I bought it because I'm a sucker for new tech. Most people are going to buy a device for what it does for them, rather than it simply being a new and interesting technology that does very little more than existing tech despite costing 5x as much. Now that MP3 players hold hundreds or thousands of times what you could fit on a cassette, and are as cheap or cheaper than a walkman (or even just integrated into a phone) -- the rational consumer won't buy a walkman.

Re:What do we think? We don't know!

[MacWiz]

That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

Thomas was using Kazaa which, at the time, had sharing turned on by default. She may not have even known she was sharing. Also her hard drive crashed and was replaced before she was ever notified by the RIAA that she was accused of anything, so there's no actual proof that she even had copies of any of the music in question. There's also no proof that anyone other than the RIAA ever downloaded a copy and they may not have actually downloaded one either, but just saw it listed on Kazaa.

The RIAA has never proven anything.

Re:What do we think? We don't know!

[Theaetetus]

Thomas was using Kazaa which, at the time, had sharing turned on by default. She may not have even known she was sharing.

Having shown that she was sharing, the burden of proof falls on her to then prove that she had no knowledge of it.

Also her hard drive crashed and was replaced before she was ever notified by the RIAA that she was accused of anything,

On the contrary, it was two weeks after she was notified. And while she told her own attorney and expert that the drive had been replaced in 2004, it had a manufacturing sticker from 2005. And she also admitted on the stand that she lied under oath and provided a replacement hard drive to the RIAA. So, no.

so there's no actual proof that she even had copies of any of the music in question.

On the contrary, Media Sentry downloaded copies from her. Therefore she had the copies to upload, no? The burden of proof falls on her to show how she could have uploaded a copy to Media Sentry that she never had.

There's also no proof that anyone other than the RIAA ever downloaded a copy and they may not have actually downloaded one either, but just saw it listed on Kazaa.

Nope, Media Sentry downloaded an actual copy, not just the directory TOC.

The RIAA has never proven anything.

All of your factual assertions are provably incorrect. The RIAA proved infringement to be more likely than not, and the jury agreed. Thomas never proved that she didn't infringe, and in fact, this appeal is solely about damages, not liability.

Re:What do we think? We don't know!

[NewYorkCountryLawyer]

That is exactly the part I was referring to. Thanks :)

I knew exactly which part you were referring to.

Let me tell you... a lawyer who tells a judge to look at things 'holistically' is

[1]-an idiot, and
[2]-in trouble.

So this guy fits in well with the RIAA.

Re:What do we think? We don't know!

[MacWiz]

I was basing my statements on the 2007 and 2008 stories. I kind of stopped paying attention to this case about the time a judge ruled that "making available" theory was an invalid claim. Wasn't aware of the details of the 2009 trial or that she had recanted her original story.

Not that any of it really matters. Everything the RIAA has done in the last decade on the legal scene has been all rather pointless and accomplished absolutely nothing.

Re:What do we think? We don't know!

[rastoboy29]

So, you're saying the issue is clouded?  And so you have no real opinion?

Then, whey did you post?  Please wait until you've figured it out and can actually take a position before clouding the waters further by pointing out how clouded the waters are.

Re:What do we think? We don't know!

[QuasiSteve]

I see you wrote this on a typewriter ;)

The issue is clouded, but why you would conclude that this somehow means I don't have a 'real opinion' is, once again, confusing. You can look through my earlier comments to see what my opinion on all this is.

I can't say the same for you; well, presuming that's actually your site under that Homepage link. If it's not, oh well. Continuing under the assumption that it is or that at least you align yourself with its writings: the June 12th entry (about the subject of this Slashdot story) about monetizing user-provided content (which may or may not be infringing on copyright holders' rights) is entirely an admission that the writer's opinions aren't on entirely solid ground - accepting technical limitations on one hand, fighting the cause for 'everything should be free because it promotes the arts' on the other hand, then pulling a third hand out of thin hand that wags a little finger at sites that make money off of the earlier two constructs (in the specific site's case, via ads).
I would think that would be one of the simpler things to take a stance on - although I've seen such wavering before; when culpability for software defects are discussed, many are quick to suggest that e.g. GPL software be exempt. After all, it's free (as in speech).. also as in beer so the developer could never actually cover culpability. It's as if things magically change when there is no intent for profit; which is true, to an extent, if you register as a not-for-profit. Pretty sure that doesn't apply to copyright infringement, however.

In before lawyers wannabe opinions

[Anonymous Coward]

I am not a lawyer and I've never studied law so i'm going to give my insightful predictions on the appeals court decisions even though I didn't RTFA.

Re:In before lawyers wannabe opinions

[tom17]

You forgot to give your insightful predictions on the appeals court decisions even though you didn't RTFA

Re:In before lawyers wannabe opinions

[Anonymous Coward]

He accidentally the predictions.

Re:In before lawyers wannabe opinions

[Anonymous Coward]

He did not accidentally.

Reading comprehension: It's for the anonymous coward, too.

Re:In before lawyers wannabe opinions

[Anonymous Coward]

Reading comprehension: It's for the anonymous coward, too.

The irony.

Re:Site is slashdotted

[Anonymous Coward]

Sorry, please mod me OT.

GP

What is the right acronym...

[Anonymous Coward]

for the equivalent of RTFA?

LTTFMP3?
LTTFAF?

when a dinosaur dies

[circletimessquare]

it's tail thrashes around a lot, and does a lot of damage

it's still going to be extinct very soon nevertheless

you can't foist a business model from a dead era on us

well you can try, and drain all of your coffers in the process, thereby speeding up your demise

but economic reality has a way of being economic reality despite your protestations

they call things like the Internet "disruptive technology" for a reason

consider yourself permanently disrupted, media conglomerates

Re:when a dinosaur dies

[Anonymous Coward]

Burma Shave

Re:when a dinosaur dies

[syntheticmemory]

Oh, this will probably have a half-life similar to intelligent design, monkeys too greedy to let go of the banana in the jar- creative works that they couldn't possibly produce by themselves. That hand is never going to let go of the revenue stream willingly. On the gripping hand, however, creative people now have many more tools to deliver their work directly to the customer.

Re:when a dinosaur dies

[Anonymous Coward]

Are they still around? (And if so, are they considering changing the name to Myanmar Shave?)

Re:when a dinosaur dies

[Sulphur]

He flagellates the neighborhood
Smoothly to the ground.
Burma Shave!

Re:when a dinosaur dies

[Anonymous Coward]

So when will the labels be dead?

You people have been saying their death was imminent since at least the Napster days. Making open ended predictions like you've all done is the height of idiocy, because in the long run we're all dead and all our business models will go with us. So when will the labels be dead?

As it is, they are in a much healthier position than they were when you first started spouting this crap. Napster was going to kill them, then is was MySpace Music, then it was Wal-Mart, then iTunes and Amazon. Yet the million sellers are all signed to the same labels they've always signed with and the artists trying to sell direct or going direct to the big stores toil in obscurity. The latest bubblegum pop song being promoted by the labels sells more than those guys give away.

So when?

Re:when a dinosaur dies

[bbbaldie]

The funny thing is that for years the RIAA was that cool organization that presented artists with those gold and platinum records. I bought quite a few records back in those days, but felt a twinge of guilt when I would record them onto cassettes to spare wear and tear on the record. The guilt increased a bit if I recorded friends' albums, although I tended to eventually spring for my own copy of the good ones, just so i could get a more pristine cassette recording.

That was before they destroyed Napster, and proceeded on to suing folks of all shapes, sizes, colors, and ages for, basically, copying albums to cassettes.

Now, I buy my music from Russian websites. The RIAA gets zilch. I get mp3's which are of a high enough quality that I highly prize them, and keep them redundantly backed up.

I also share with friends, via sneakernet.

If an artist blows me away (e.g. Bonnie Bramlett, of Delaney and Bonnie), and are clearly not already fabulously wealthy (e.g. Mick Jagger), I actually will track down their agent and send them a modest check from my S corporation. It's a tax-deductable contribution to someone who has earned their pay.

Otherwise, i might visit an artist's website and score some bling.

You see, money passes from my hands to a music seller. It passes from my hands directly to the artist. Or it passes from my hands to an enterprise connected with the artist that pays nothing to the RIAA.

You can say downloaders are destroying the traditional business model for music, RIAA, but the reals criminal here is staring back at you in the mirror. You have managed to anger me (and how many millions of others) enough to work out a fair and square way to purchase guilt-free music.

Re:when a dinosaur dies

[Anonymous Coward]

They are dead to me... I have not given the given them a single penny since t hey shutdown napster... I have move on to buying local and independent bands music

Re:when a dinosaur dies

[Anonymous Coward]

Was that supposed to rhyme? Because I ended up reading it with this dancey cadence like one of those over excited coffe house poets.

Re:when a dinosaur dies

[circletimessquare]

no media ever really dies

there's still AM radio, they still sell player piano rolls, cassette tapes, etc.

"dies" means "ceases to be the most important driver of creation and consumption of media"

which has already happened, socially and culturally. financial and political death are what we are still waiting on. give it a decade or two for the older clueless folks to die off

Which case was this one?

[jgtg32a]

Was this the one where the defendant through their family under the bus or the one where the defendant's lawyer was a moron and pissed off the judge?

RIAA did a great job at picking people to actually take to court.

Re:Which case was this one?

[jgtg32a]

I guess a more important question is who is a bigger moron me (through -> threw) or a lawyer who pisses off a judge?

Re:Which case was this one?

[Theaetetus]

Was this the one where the defendant through their family under the bus or the one where the defendant's lawyer was a moron and pissed off the judge?

RIAA did a great job at picking people to actually take to court.

Family one. Though, interestingly enough, Thomas' lawyer, Kiwi Camera, was a student of Tenenbaum's lawyer, Charles Neeson. The two have a long and storied history - Camera famously posted his law school outlines online, said outlines containing tons of racial epithets. When the Harvard Law student body was outraged, then-Professor Neeson held a "mock trial" defending Camera on 1st Amendment grounds... which led to Neeson resigning from teaching the class.

Thomas' argument shoots herself in the foot

[Theaetetus]

For better or for worse, Thomas waived the "making available = distribution" argument, and argued only the Constitutionality of statutory damages in a case with an argument for no actual damages... But by basically stipulating to distribution, she no longer can make the argument that this is just about a single download, the "noncommercial individual file sharing at issue in this case."

Additionally, the argument seems to not be focused on the statutory range at all - which is a mistake when they're arguing about the Constitutionality of the statute. Rather, on page 5, Thomas notes that the damages could be as low as one song times the minimum, or dozens of songs times the maximum, and then compares this to a range of "$50 to $10,000,000"... But that's not the range in the statute. Instead, at best, it's an argument that dozens of instances of infringement of independent works should be treated only as infringement of a single work, and I can't see the court deciding that Congress lacked a legitimate reason for not writing the statute that way.

Also, from her brief: "If the recording companies are correct, then they are claiming that Congress considered and approved damages ranging from one song times the minimum ($250) to thousands of songs times the maximum (hundreds of millions of dollars or more)." That's just sloppy. Either he means $750 or he means $200, but which is not clear.

Re:Thomas' argument shoots herself in the foot

[darkmeridian]

Thomas' attorney K.A.D. Camara is something of a legal gadfly. The guy is 28 years old, doesn't have lots of experience as a practicing attorney, and took the case on pro bono for the publicity. Camara experienced some bad publicity at Harvard Law School when he uploaded legal outlines that contained a racial slur to a student-run sharing website, so he probably wanted some better publicity. He waived the making available theory, I think, in an attempt to get a shot at the Supreme Court hearing about the constitutionality of statutory damages in cases where there are no damages.

I'm not saying that he isn't a bright guy, he certainly is brilliant, but he doesn't have the proper litigation experience. No one in their right mind would tell an appellate court that they should include a statement that it never bothered to review the making available theory. If the court wants to do it, they can, and it's fucking ridiculous for him to ask them to ignore something that can win the case for his clientâ"don't look a gift horse in the mouth! And exactly how do you write an appellate brief that cites only four cases as precedent when the other guys cited over a dozenâ"you need to distinguish those cases, not ignore them by waving your hands and saying "cases such as ... should be ignored"? This is real life, and you don't get to argue sexy constitutional issues all the time, and life as a lawyer involves a bunch of nitty gritty stuff such as distinguishing cases and running out ground balls such as the making available theory.

Also, lawyers have to tell their clients, from time to time as the case may be, that they're full of shit. This lady said that she didn't know what Kazaa was, the account in question wasn't hers, and sent a hard drive that wasn't the one in question for forensic investigation. She had written a case study in college about Napster, didn't deny that the IP address used to access the material wasn't hers, didn't deny that the username in question was one that she had regularly used for other accounts, and was familiar with all the music downloaded by the Kazaa account user. If your client is telling you something that smells like bullshit, your job is to tell them to think again before they try to peddle that shit to the other side. That's your job as an attorney and that's the hardest thing for a young attorney to doâ"to push back on their clients.

So, in short, her attorney was just not doing a good job in this case. =/

Re:Thomas' argument shoots herself in the foot

[Anonymous Coward]

Which is why I'm so sad it made it to the supreme court. You have a hard enough time battling big corporations like this, let alone when given a shitty case.

this is why I have a good math degree but bad law

[Anonymous Coward]

I called bullshit pretty much all the time through my law degree, pointing out how much of what goes on in court is just stupid interpretation games rather than paying heed to the spirit of the law or any notion of equity. Apparently, the former is a good thing.

Well, no it isn't.

How about this one

[Anonymous Coward]

Artificial scarcity is morally wrong and economically harmful.

Business models that involve data should not be dependent on artificial scarcity.

We can revisit the old artificial-scarcity model when and if the predicted-but-never-demonstrated cultural impoverishment (a hypothesized result of a lack of new content which is a hypothesized result of a lack of financial incentive to create which is a hypothesized result of the inability to wring every last penny out of everyone that receives a copy of the data) actually happens (which it won't).

Re:How about this one

[Chrisq]

Artificial scarcity is morally wrong and economically harmful.

That's what I said to a girl who turned out not to be on the game

Re:How about this one

[icebike]

Artificial scarcity is morally wrong and economically harmful.

Business models that involve data should not be dependent on artificial scarcity.

We can revisit the old artificial-scarcity model when and if the predicted-but-never-demonstrated cultural impoverishment (a hypothesized result of a lack of new content which is a hypothesized result of a lack of financial incentive to create which is a hypothesized result of the inability to wring every last penny out of everyone that receives a copy of the data) actually happens (which it won't).

You have to ask yourself if the scarcity is in fact artificial.

There is only one Lady Gaga, and she can't be everywhere at once, and she is therefore by definition scarce.

Recording and mass marketing has made her un-scarce. She chose this route. She did so in order to maximize her
profit, with the expectation that she might make some money. Not an unreasonable expectation.

When there were records (vinyl), artists and labels could press a short run, label them a collector's edition if they wanted, and
controlled the number in production. Same for books. That too was a artificial scarcity of sorts.
So was the 1937 Bugatti Type 57S Atalante Coupe, 17 made. They could have made any number.

Others could have copied the car, or the books or the records. But we, as a society, gave that right
to the car company, the author, or the artist. Never mind WHY we did that. Those arguments are not
germane, we did it, enshrined it in law, and it is what it is.

Digital music / ebooks / videos removed all capability for the artist to control the number of copies, and allows
anyone, at will, to create any number of copies.

You can't, with any intellectual honesty, simply hand wave that away and claim a business model is morally
wrong simply because it is suddenly possible to circumvent it in your parents' basement with an $800 computer.

Ford could have copied Bugatti. But the barriers to entry were high enough (an automotive assembly plant) to prevent that.
Someone could have pressed a copy of the Beach Boys albums, or any best selling book. Again you had to have the
expensive tools and you would risk getting caught with a warehouse full of counterfeit goods.

The computer removes all of that, and gives any 12 year old the ability to make perfect copies at zero cost.

Does that fact somehow trump the law, wash away the artist's rights, and make copying anything legal?
Will 3D printing do the same for physical objects?

The concept of artificial scarcity is, itself, artificial: man made.

Re:How about this one

[spire3661]

The problem is Lady Gaga, or any cultural work is not important enough to stifle technological progress. The model is no longer viable, so YES you can hand wave all that profit away. Make money from PERFORMING, not trying to make a profit from every mind your work touches. I HATE the idea that people feel IP allows them ultimate control over work they release into the public consciousness.

Re:How about this one

[icebike]

That you hate the idea, means nothing. Its still the law that society has adopted.
If you don't like that, then work to change the law, so that any work, once created, belongs to all.

Oh, and go ahead and forward half your bank account to me. Thanks. And keep up the hard work.

Re:How about this one

[Anonymous Coward]

You have to ask yourself if the scarcity is in fact artificial.

You have to ask yourself if you know what they're referring to. They're not referring to the scarcity of the actual artist; they're referring to the scarcity of the work after it is produced (it's not scarce).

Re:How about this one

[hazah]

Reality has changed. Does the law trump reality?

Re:How about this one

[icebike]

I know exactly what I'm referring to, You, on the other hand seem to have a reading comprehension problem.

If the artist limited herself to performances only, and allowed no recording or video, she would be able to maintain the maximum in scarcity of her work. This is the historical norm. Artists have a natural monopoly. They are scarce.

Once a digital recording is made the artist loses ALL control of scarcity. Natural monopoly is shattered.

The only fall back is a legal monopoly. (Copyright).

If society is willing to strip away legal monopoly there will probably be far fewer recordings released, and personal appearances will again be the norm. Artists will release just enough recordings (for free) to assure that their venues are sold out.

One can argue that is a perfectly reasonable way to go, but it is not the way society has chosen.

Re:How about this one

[icebike]

Does the law trump reality?

In general, yes. One can argue it is the natural purpose of law.

Re:How about this one

[Coren22]

The main problem with the music industry is not the artists, they don't make any money off album sales; not because of pirating, but because the distributors suck every last penny from the sales. The RIAA is not made up of artists, they are made up of distributors. The distributors are no longer needed in digital distribution, so they are losing money, the artists are not losing money, as they always made their money from the live performances.

When you try to defend the music industry, really think about who you are defending because it isn't the artists.

Re:How about this one

[icebike]

You make a good point.

But I'm not defending the music industry. Maybe that's why so many simply can't understand the problem, their hatred for the music labels has blinded them to all reason. They hate copyright because they hate the RIAA.

Look the situation would not be any different if the music industry disappeared over night. If all the artists made their own web sites, sold their music directly, went thru iTunes or Amazon or Google. The situation would be exactly the same.

Those who rail against copyright condemn all artists to only perform in person, because any digital reproduction of their performances is, in these people's eyes, fair game for all of society to reproduce at will.

If that is what society wants, that's fine. Lets go with that. You may not like what you get, but if you can convince the rest of the world the it is the right way, then elect people who will do that for you. Or run for office yourself.

Its a very small jump from "Any thought once spoken belongs to all mankind" to "Any dollar once earned belongs to all man kind".

Re:How about this one

[spire3661]

The problem with your statement is that you think the law reflects a just state of affairs. Law is BOUGHT and PAID for every single day, with no regard to 'is this morally right". Saying 'the law is the law' shows your ignorance on how law is forged.

Re:How about this one

[vux984]

You can't, with any intellectual honesty, simply hand wave that away and claim a business model is morally
wrong simply because it is suddenly possible to circumvent it in your parents' basement with an $800 computer.

The moral argument was that artists should be able to get paid for their work. There was never a moral argument that they should be paid for each copy. That was merely a convenient point to collect at because technology made actually producing copies something that required a fair bit of capital. Tools, materials, etc.

Today, as you say, someone in their parents basement with a used $100 dollar computer off craigslist can produce unlimited copies. It no longer makes sense to collect artists fees at the "copy" point. It used to be practical, its not anymore. So that business model is obsolete.

Re:How about this one

[icebike]

Obsolete is a far cry from immoral. Because the model is obsolete does not make it wrong.

But I disagree that "there never was a moral argument that they should be paid for each copy". Precisely that argument has been the cornerstone of copyright since the Constitution was written, or the British Statue of Anne. Its been the norm since the 1500s. "To every cow belongs her calf, therefore to every book belongs its copy."

And I'm all ears for any model that allows Artist/Author to profit from their work, and profit more when they produce a very popular work, and profit less when their work appeals to only a few.

I suspect that we are several major technological advances away from such a solution.

Re:How about this one

[Anonymous Coward]

You have to ask yourself if the scarcity is in fact artificial.

And the answer is "Yes, it is. Data fits the definition of "abundant," and so legal limitations on its duplication exactly qualify as artificial scarcity.

There is only one Lady Gaga

So her live performances are scarce. She should capitalize on that. Copies of what she recorded then published are not naturally scarce, so if they are treated as scarce then their scarcity is artificial.

Recording and mass marketing has made her un-scarce.

No it has not. There is still only one of her. The work she releases digitally is abundant, though. Why do you insist on deliberately misrepresenting the situation?

Others could have copied the car

The design of a car, yes. An actual car is built out of scarce resources, and is itself scarce. This should be obvious.

You can't, with any intellectual honesty, simply hand wave that away and claim a business model is morally
wrong simply because it is suddenly possible to circumvent it in your parents' basement with an $800 computer.

Taking control of someone's hardware away from them is morally wrong. You can't, with any intellectual honesty, simply hand wave that away.

Does that fact somehow trump the law, wash away the artist's rights, and make copying anything legal?
Will 3D printing do the same for physical objects?

Reality should trump law, yes. A law that used to fit reality, but no longer fits reality, should be purged and replaced with one that does fit reality. Business models that no longer make sense should not be propped up just to keep some luddites rich. And if 3D printing gets to the proper state, then absolutely it should change the legal landscape for managing reproducibility of useful items. It makes absolutely no sense to use old laws to stop our full use of new technology.

The concept of artificial scarcity is, itself, artificial: man made.

Uh, what is that supposed to mean? All words are man-made. So what? The fact remains: when something is abundant, it is abundant, and if you use law to force an unnatural limit on its use, your limit is artificial. Semantic hair-splitting changes nothing.

Re:How about this one

[hazah]

That's a good way to have your laws ignored.

Re:How about this one

[bws111]

This is entirely false. The argument for copyright is (and always has been) that creators get to control their works. Sometimes that means selling copies. Sometimes that means saying 'you can not use my music in your commercial'. Sometimes that means saying 'you may not distribute binaries of this software without distributing the source'. Sometimes it means saying 'this is my gift to the world, do what you want with it'.

What does the ease of infringement have to do with anything? There are lots of things that are incredibly easy to do, yet society has decided that doing them is bad so we make laws about them. It is incredibly easy to dump poisonous chemicals into the water supply - does that mean that laws saying don't do that are obsolete? It is incredibly easy to mow down a bunch of people with your car, therefore murder laws are obsolete? It is incredibly easy to throw garbage out your car window - are littering laws obsolete?

Re:How about this one

[icebike]

Son, the Reality of the world and of nature is Might makes Right, kill or be killed, eat or be eaten.

Law is mans way of bringing order to this reality.

You can feel free to ignore the law at your own peril. Without the law, your life would be
miserable, short, and end violently.

Re:How about this one

[vux984]

"To every cow belongs her calf, therefore to every book belongs its copy."

Written shortly after the invention of the printing press, which was way out of reach of the common man, and only produced a few hundred pages a day. (usually the -same- page and you had to reset the machine to print a different one. So it still took a couple weeks to get a few hundred copies of a book.

. Precisely that argument has been the cornerstone of copyright since the Constitution was written

Once upon a time before recorded music performers were paid for each head that was present enjoying the performance. People assembled into an audience, fees were collected from each, and the musician performed. The circus acrobat did his act. The dancer danced. The play was performed.

Collecting per head listening became infeasible when people were playing copies. But it was very practical to collect at the point of making a copy. This happened to be where technology was when copyright was enshrined in law. But its merely a coincidence. There is no moral argument supporting 'per copy' payment.

And I'm all ears for any model that allows Artist/Author to profit from their work

a) We are back to paying for performances. Anyone can make a copy of a digital file, but it is practical to collect at a performance. A popular performer will be able to charge more per head than an unpopular one.

b) Novel ways of raising money... the kickstarter model for example. Release a few tracks for free, hold performances... then he starts a 'project' the fans pledge funds, the artist sets his price for an album... if he raises enough money he takes the money and makes and releases his next album.

c) Commercial licensing - artists can still retain rights and license there works for use in commercials, movies, retail stores, whatever. While it has become impractical to stop people from making personal copies of music, it is still very practical to collect fees for commercial use. Again popular music/musicians can command a higher price.

d) Commission work / works for hire / "patronage" - the artist is a free agent... if you want a song, pay him to make one. Popular artists can command higher prices.

I suspect that we are several major technological advances away from such a solution.

Not at all.

Re:How about this one

[Anonymous Coward]

Some famous guy once said something like "An unjust law is no law at all." Another famous guy once pointed out that you can't put everyone in jail. Good luck with your unenforceable laws.

Though I don't get what point you are trying to make with the "forward half you bank account to me" statement. The best I can guess is that you are trying to imply that since money is now just stored digitally, and since limits on digital duplication represent artificial scarcity, and since we are proposing the rejection of artificial scarcity, we should therefore have no problem letting you gobble up the digital data that represents our wealth.

But that is just a guess, so I won't call you to task for how much this fails to make any sense. You are far to intelligent to fail to see the apples-to-oranges difference between the free duplication of data products and the non-data-duplicating action of moving funds from one account to another.

Hmm, maybe you were trying to imply that duplicating songs is (in some metaphorical way) equivalent to taking funds out of an artists bank account? But of course that doesn't make any sense either, since the artist didn't invest any resources in the after-the-fact duplication of digitally published work that is taking place. The artist can simply charge for another live performance if the artist wants more money.

Re:How about this one

[vux984]

What does the ease of infringement have to do with anything?

Everything.

There are lots of things that are incredibly easy to do, yet society has decided that doing them is bad

And all of the examples you listed have a moral argument supporting them. We can all see the moral argument supporting the prohibition of poisoning the water supply or running down people with your car.

There is not, and never has been a moral argument supporting paying artists per copy. The moral argument was merely that artists should be compensated for their work, and the technology of the time made collecting compensation on a per copy basis very convenient.

If you disagree what is the moral argument for giving an artist the right to control whether I may put a song from a CD onto an ipod?

What is the moral argument that justifies a system where I should pay for each copy of a digital file I give to people, yet I may see a dress in the store window and make as many copies of it as I like and give them away or even sell them. I can use the same materials and colors or make different ones.

What is the moral argument for giving the the creator of a song control over copies while the creator of a dress or piece of furniture should not have this same control.

What is the moral argument for protecting early mickey mouse films? "Disney Corporation" did not create anything, people did, and those people are all dead.

How does an argument for copyright that supposedly gives "creators control" end up resulting in me paying into hedge fund managers dividends for works that were created by people who died 50 years ago? What did the hedge fund manager create? Then why exactly does he exert the control?

Re:How about this one

[Anonymous Coward]

If you don't like that, then work to change the law, so that any work, once created, belongs to all.

so those people that helped runaway slaves, while working at abolishing it were bad? law is law and all.

Re:How about this one

[Kjella]

Others could have copied the car, or the books or the records. But we, as a society, gave that right to the car company, the author, or the artist. Never mind WHY we did that. Those arguments are not germane, we did it, enshrined it in law, and it is what it is. (...) Does that fact somehow trump the law, wash away the artist's rights, and make copying anything legal?

No, but we can change the law to make it legal. You talk as if the first man who invented fire should have the rights to it from then until the end of time and society stole it from him. We copy each other all the time in all areas of life, the best way of learning something is to imitate and mimic others. Copyright is a carved out temporary exception to the normal state of things, if you have made something that qualifies as a creative work you get an exclusive period for as long as society feel is prudent. I've found there's little point in arguing because people like you tend to think you own the work, that even though you've sold it on CDs to millions of people it's your right to control what those millions of people do with it. You start with everything, and don't understand why the government should have any right to take it away.

I don't think you have any such power over other people unless we as a society grant you those powers. You start with nothing except your original work and you can do whatever you want with it but if you give copies to anyone they can do whatever they want with them, including sharing it with a million of their closest friends on P2P. Everything you take for granted is an exclusivity granted by the grace of society - for a time. And we as a society can change our mind, that is we the people and not you the copyright holders. If we feel that copyright is no longer the best way to "To promote the Progress of Science and useful Arts" or we feel it's hurting society more than it's helping, then we can simply cease. Because what you had was granted, not owned. And that is why IP is such a fraudulent terminology.

Re:How about this one

[chrismcb]

Make money from PERFORMING, not trying to make a profit from every mind your work touches

Some will argue that radio and digital files are just free publicity for the performance. Which it can be. But many artists release their work from the sale of the album, or from royalties from the radio station. If that money dries up, then many artists won't release their work. So now the only way to hear them is to hear them perform. It will be a pretty quiet world. And what about when the end product IS the recording and not the performance? I don't really want to watch an author write the book. And while I actually enjoy watching them film a movie, I would rather see the end product. What then?
I HATE the fact that people feel they are entitled to the end product for free, just because it is digital. They don't realize that the end product probably won't exist without that copyright, that they loathe so much.

Re:How about this one

[Anonymous Coward]

But a singer has almost no value if not heard by many people: The relationship between quality and reward is in no way linear. Be a little better, gain advantage of network effects, and you are famous instead of doing all your gigs at bars.

Modern realities make artificial scarcity impossible, and even if they made no money selling recordings, concerts and live appearances would still make tons more money for an artist than refusing to get recorded ever.

Re:How about this one

[richlv]

You can't, with any intellectual honesty, simply hand wave that away and claim a business model is morally
wrong simply because it is suddenly possible to circumvent it in your parents' basement with an $800 computer.

but why could you claim that technical progress should be halted ? it's not the "circumvent" thing, it;s the "share" thing.
the world will not go back to middle ages (hopefully) - we will not have books be scarce because of rewriting them, we will not have music be a luxury because of expensive equipment and media needed for it.
why would anybody who is not interested in controlling the target audience try to preserve such a limited environment ?

another thing is this argument that producers "deserve" payment. i'm not sure what is the justification for this - we don't claim that repairmen deserve cars to be brought to them instead of being serviced by their owners. it's even worse, as this system actually tries to monopolise what is a quite low level human motivator. dance, song, art - these are part of the basic appeal to the opposite sex, thus they will be performed without monetary reward.
actually, we can easily see that there is way, WAY more content being produced than the community can consume. and that is completely normal and ok... unless you would like to claim that the right of producing content and distributing it should be controlled by a privileged cast of the community.

there is no moral high ground in claiming that we should limit art, and prevent advancement of it. it's actually trying to drown human expression from the sewers of morality.

Re:How about this one

[icebike]

I read as far as me "claim that technological progress should be halted " and realized you are an idiot with zero reading comprehension.

How in gods name did you come up with that?

Re:How about this one

[Anonymous Coward]

My account is overdrawn. Half of -£300 is -£150. Please send a cheque for half my overdraft amount.

Re:How about this one

[hazah]

Sorry, a miss-understanding is going on here. I agree with you, not the other way around. I'm speaking to the same "reality of the world and of nature". For instance, pot. There are laws. They're, more often than not, ignored (because of aforementioned reality, and, at least, in these parts). I think we're viewing the same concept through different lenses. Probably zooming into the indivudual parts of the same whole. I'm reminded of the 3 blind men deciding what an elephant is.

Re:How about this one

[shoemilk]

There is only one Lady Gaga, and she can't be everywhere at once, and she is therefore by definition scarce.

Which is why people pay a lot of money to see her in concert.

Recording and mass marketing has made her un-scarce. She chose this route. She did so in order to maximize her profit, with the expectation that she might make some money. Not an unreasonable expectation.

No, it made her music un-scarce. There is still only one Lady Gaga. Even if her income from published music were 0, she'd still make more money than if she hadn't recorded anything. The records are brand recognition.

When there were records (vinyl), artists and labels could press a short run, label them a collector's edition if they wanted, and controlled the number in production. Same for books. That too was a artificial scarcity of sorts. So was the 1937 Bugatti Type 57S Atalante Coupe, 17 made. They could have made any number.

How does the availability of MP3s or eBooks or kit cars prevent any of this? These things are not data, they are things and with such have a physical, and thus limited i.e. scarce availability.

Others could have copied the car, or the books or the records. But we, as a society, gave that right to the car company, the author, or the artist. Never mind WHY we did that. Those arguments are not germane, we did it, enshrined it in law, and it is what it is.

I'll agree to this as we're debating about scarcity. However, you are severely confusing PHYSICAL goods with data.

Digital music / ebooks / videos removed all capability for the artist to control the number of copies, and allows anyone, at will, to create any number of copies.

You can't, with any intellectual honesty, simply hand wave that away and claim a business model is morally wrong simply because it is suddenly possible to circumvent it in your parents' basement with an $800 computer.

Why not? What gives you the right to wave your hand and say it's morally right for society to treat data as it were a physical object? Morality is an ambiguous thing. You can't claim intellectual dishonesty over morality. Was prohibition moral? The people who passed it thought so, but pretty much everyone else thought no. Is the drug war moral? The people who support it do, I think it's the most disgustingly immoral act on going in the US.

Ford could have copied Bugatti. But the barriers to entry were high enough (an automotive assembly plant) to prevent that. Someone could have pressed a copy of the Beach Boys albums, or any best selling book. Again you had to have the expensive tools and you would risk getting caught with a warehouse full of counterfeit goods.

But the goods are only counterfeit because we as a society have said we allow for an artificial scarcity.

The computer removes all of that, and gives any 12 year old the ability to make perfect copies at zero cost.

Of a 1937 Bugatti Type 57S Atalante Coupe?! What program do they have that I don't?!

Does that fact somehow trump the law, wash away the artist's rights, and make copying anything legal?

Well no one ever said laws were moral.

Will 3D printing do the same for physical objects?

I hope so.

The concept of artificial scarcity is, itself, artificial: man made.

Artificial scarcity is artificial? I thought that's what the phrase meant. Scarce: Lady Gaga. Not Scarce: A grain of sand. Artificially scarce: A grain of sand when walls with armed guards surround every beach.

Re:How about this one

[MacWiz]

While this argument is thoughtful and well-said, it misses a key point. Record labels contracts washed away the artists rights the day they were signed. And that goes back to the 40s and 50s.

The artists may own the songs that they write (and now get paid 9 cents a copy -- half of which goes to their publisher) but very, very few own the sound recording copyrights. That's how Sony got away with paying the Bay City Rollers a total of $250,000 (their original advance), sold 70 million copies of their albums and never paid them another dime for more than 40 years (they "lost" the original contract, so they "didn't know how to break it up" among the members and, as a result just kept it all). I heard a few years ago that they band was finally taking Sony to court, but no news ever came out about the outcome.

Roger McGuinn testified before Congress that he never made a dime off of anything The Byrds did. The only album Merle Haggard ever actually profited from was an independent jazz release. Motown artists were paid $50 a song. One of the best-documented accounts is on Janis Ian's website, detailing how she still owes money from a contract in the late 60s or early 70s, and she doesn't have the right to sell her own early work because her former record label refuses to sell her old albums. She can't even buy copies of her own records to resell. These are just a few stories off the top of my head, but there are thousands of them, all just as despicable.

Sure, there are a few like McCartney, Springsteen and the Rolling Stones that can still fill a stadium -- and they are still making a comfortable living -- but for every one of those there are hundreds (if not thousands) of other artists that sold millions and millions of albums who will continue to play clubs and the Indian casino circuit until they die, just to pay their rent. They can't afford to retire because they never got paid for selling any records and never will.

While things have changed a little in the last decade (bands breaking away from their labels and becoming independent), current standard operating procedure is that you still never receive any money from recordings after your advance and if you do, you should fire your agent for failing to negotiate properly. If an artist actually gets to audit their record label (there's like a 7-year waiting period between audits) and finds that the label owes them money (which is the case 99.99% of the time), the label usually settles for 10 percent of the amount due, so they still keep 90 percent of what they were trying to skim in the first place.

In 2013, artists are supposed to start regaining the rights to material that is 35 years old, as the result of a law passed in 1976 which is just on the verge of actually coming into effect. The RIAA has already made it clear that they have no intention whatsoever of abiding by this law and will fight it all the way to the Supreme Court.

The greatest pirates the recording artists have ever seen (or will ever see) are the members of the RIAA.

Re:How about this one

[NewYorkCountryLawyer]

The main problem with the music industry is not the artists, they don't make any money off album sales; not because of pirating, but because the distributors suck every last penny from the sales. The RIAA is not made up of artists, they are made up of distributors. The distributors are no longer needed in digital distribution, so they are losing money, the artists are not losing money, as they always made their money from the live performances.

When you try to defend the music industry, really think about who you are defending because it isn't the artists.

Very well said.

I think the time will come that musicians will be making some real money from the recordings, which has never been the case before, because they get to keep a much, much higher percentage.

It was a sad day for the big labels when indie artist Amanda Palmer brought in over a million dollars ($1,192,793, to be exact), independently of the labels, to mix, distribute, and promote her new album. On her Kickstarter page there's a video where she explains the whole thing, and points out that if she'd financed the album by letting a record label do it, she herself would wind up receiving zilch from the album sales.

All she needed was a twitter account, a facebook account, a Kickstarter account, and 25,000 friends.

P2P shares 1:1. On average.

[Anonymous Coward]

Therefore if the damages are to recompense for 100,000 copies shared, then those 100,000 people who copied are in the clear.

Of course, you also need to pay the filesharer back for the costs they accrued in this sale:

1) breakages.
2) business expenses
3) marketing
4) good will
5) tax
6) rental of equipment

and so on.

In fact this probably leads to a bill of $150,000 to the industry by the P2P filesharer.

The courts already ruled on the making available

[Anonymous Coward]

And the courts ruled that making available is not distribution.

If that stands...

[MikeRT]

It'll just make a bigger mockery of our court precedents. If hundreds of thousands of dollars in fines for what would no more than grand theft in most states is not "cruel and unusual" WRT fines, then how can the Supreme Court possibly justify things like saying that it is cruel and unusual to use the death penalty on someone who is a serial child molester (they struck down Louisiana's law which provided for execution of repeat offenders say it was "uncivilized").

Oh wait, this is the same federal judiciary that only recently discovered that the 2nd amendment was part of the Bill of Rights and was being excluded from incorporation under the 14th. In another 150 years, they might discover that the DMCA's statutory damages are unconscionable and hypocritical as well.

Re:If that stands...

[Ameryll]

Also the people who decided that corporations are people too...

Re:If that stands...

[bbbaldie]

Executing repeat child molesters????? Why, the liberals would EXECUTE you for coming up with such a notion!

Re:If that stands...

[Theaetetus]

If hundreds of thousands of dollars in fines for what would no more than grand theft in most states is not "cruel and unusual" WRT fines

These aren't fines. These are compensatory damages. And for better or for worse, that's how the courts have been responding to the argument that the statutory damages range is cruel and unusual punishment. The precedents that Thomas is citing all have to do with punishment and punitive damages, but they simply don't apply to this statute... except with regards to willful infringement increasing the range, but Thomas isn't arguing against the willfulness part of the range. In fact, her reply brief explicitly argues that there's a single range for damages. I think that's a huge mistake.

On the "making available theory"...

[mark-t]

The problem, I think, with this is that they are trying to directly equate the concept of making something available to doing something wrong.

Instead, I think, they need to take a different route, and look at the facts.... and the law how it *REALLY* applies, not how they think it ought to.

Making something available would, by any sense of reasoning, negate any possible notion of private use.

If nonprivate use is not applicable under the circumstances (for example, the copy being used privately was unauthorized), then it seems that by that notion, copyright infringement would apply.

So it seems that they could get the judgement they want, but it hinges on whether or not such nonprivate use in some way constitutes fair dealing. If it does, then they are out of luck. If it does not, however, they could still reasonably win.

Re:The courts already ruled on the making availabl

[Theaetetus]

And the courts ruled that making available is not distribution.

Correction: the lower court ruled that making available is not distribution. That issue is on appeal, and Thomas has decided not to argue it, instead saying that the Appeals court should refuse to consider it, and decide that it's moot in view of her waiver.

The problem is, it's still an issue as it relates to the Constitutionality of damages. So now, the judges have one side arguing that it should be distribution, and the other side providing no argument whatsoever. That's not a great strategy.

I'd rather read a transcript.

[Anonymous Coward]

I don't know about the rest of you, but I can read a hell of a lot faster than most people can talk.

Re:I'd rather read a transcript.

[NewYorkCountryLawyer]

I don't know about the rest of you, but I can read a hell of a lot faster than most people can talk.

Agreed. I spent an hour listening to that file. If I'd had a transcript I could have read it in 10 minutes.

Typo in the above says opposite of what I meant.

[mark-t]

Didn't notice it until well after I hit submit... but in the parenthetical remark above, I meant "(for example, the copy being used non-privately was unauthorized)..." Since what I intended to say and what I actually wrote are practically opposites, I felt clarification was in order.

when riaa lobbyist manipulate the laws

[Dan667]

they can get what ever they want. You never hear about abuses like hollywood accounting needing to be fixed and if anything the actual music and movie makers and US Taxpayers are being hugely cheated from it.

Because you're not quite evil enough

[Anonymous Coward]

I think that the RIAA is like a bit like Dr. Evil's son Scott in the Austin Powers movies: "not quite evil enough".

In actuality, Jamie Thomas made thousands of songs available. The RIAA only picked a small subset for trial. Assume she made 2,000 songs available. Then the actual damages that the RIAA could have asked for are roughly: 2,000 * $150,000 = $300,000,000. Wonder why they only tried to go for a mere 30 or so?

Re:Because you're not quite evil enough

[jedidiah]

Perhaps those were the only ones that anyone knows about.

They took one of the highlighted songs and played it for the jury to gain sympathy. Ironically it was a song old enough that it should have been in the public domain.

Jamie claimed that the P2P thing someone else's doing and that most of the stuff there didn't even reflect her musical tastes. Apparently, it was mostly a lot of relatively obscure Scandanavian Metal bands.

Most of what Jamie was supposed to be sharing is the kind of stuff that the RIAA tends to hide from the general public in it's role as gatekeeper.

Re:Because you're not quite evil enough

[NewYorkCountryLawyer]

In actuality, Jamie Thomas made thousands of songs available. The RIAA only picked a small subset for trial. .... Wonder why they only tried to go for a mere 30 or so?

Think it could it have anything to do with the fact that there's no such thing as "making available" in US copyright law?

Re:Because you're not quite evil enough

[Anonymous Coward]

The number of files they chose was probably so that if they got the maximum statutory damages, it wouldn't be an "$8 billion iPod" situation where the public, the courts, and Congress would immediately and without exception see how ridiculously excessive the statutory damages are. They knew that if they were to sue for all the songs in her shared folder, that they'd be shooting themselves in the foot. As it stands, with the case being about a handful of songs, the public is split...maybe not the Slashdot-reading public, but the general public, the ones who don't get past "stealing is wrong" and who don't think about the fact that the damage awards for a few iPods would exceed the amount of money in the entire world.

Also, I believe in this case the RIAA wasn't relying solely on making-available. They used the fact that the files had ripping crew metadata in them to show she wasn't sharing her own rips. The jury was then instructed to find she infringed if she uploaded or downloaded. The jury found her liable; she uploaded or downloaded, or both; we don't know which. Anyway, it's possible the RIAA excluded from consideration any files that didn't have ripping crew metadata in them.

100s of downloads are improbable

[bzipitidoo]

One number that no one seems to have argued about much is the number of downloads that could have come from one user's computer. This is the basis for the entire idea of multiplying the damages to levels we all know are ludicrous. The RIAA insists hundreds of people could have downloaded from Jammie Thomas. Although that's possible, it's highly improbable. The most likely number of downloads is 1 per file. That's one, not hundreds or thousands. The court ought to use that number to compute damages.

Why only 1? For the same reasons that Ponzi schemes do not work. The network quickly becomes saturated. Suppose people can give out copies at more or less the same rate, to anyone else. And once a copy is received, the recipient can quickly turn around and share it. (BitTorrent is even better than that, starting the sharing of parts of a copy before a recipient has received the entire file.) Each generation, the number of people who could have a copy doubles. By the time a person is giving out a copy for the 20th time, 1 million people could have a copy. By the 33rd time, everyone in the world could have it. Even if everyone in the world wants a copy, only one person, the originator, could have given out as many as 33 copies, and only the first recipient could have given out as many as 32. Just 8000 people could have given out 20 copies, and just 1 of every 2000 people could have given out 10 copies. Half the people will have given out zero copies, because by the time they got it, there was no one left who still didn't have a copy of their own. The average number of copies of 1 file that a person gives out is 1.

Re:100s of downloads are improbable

[Anonymous Coward]

In an ideal world your argument makes sense, but once you change it to the real world it fails. People do hit and run, while others leave seedboxes connected all the time, and the bittorrent system is designed to get pieces from the quickest source, so it's quite easy for a person to be responsible for a lot of downloads.

Wait... what?

[Okian Warrior]

When a dinosaur dies, it's tail thrashes around a lot, and does a lot of damage

That statement got me really curious.

Apropos of nothing, just how is it that you come to know what happens when a dinosaur dies?

Re:Wait... what?

[circletimessquare]

oh shit... i let that slip

Re:Wait... what?

[NewYorkCountryLawyer]

When a dinosaur dies, it's tail thrashes around a lot, and does a lot of damage

That statement got me really curious. ...just how is it that you come to know what happens when a dinosaur dies?

+5 Funny. Too bad I'm not a moderator.

Re:Wait... what?

[Anonymous Coward]

Why Jurassic Park of course...

I defer your inquiry to the MPAA.

Unlike the RIAA, they always provide immaculately accurate and detailed facts to support their industries actions.

But eh..

[Anonymous Coward]

Who owns the copyright to the audio?

Re:But eh..

[NewYorkCountryLawyer]

Who owns the copyright to the audio?

Me.

That'll be 99 cents please. You can make payment to my Dwolla account.

1. Tell everybody on Slashdot about a free mp3 file involving an RIAA case
2. ???????????
3. Profit!

Re:But eh..

[Coren22]

Good answer, and a worthy place for the money to go in this case. I second NYCL on this one.

Re:But eh..

[NewYorkCountryLawyer]

Good answer, and a worthy place for the money to go in this case. I second NYCL on this one.

Now, now, I was just kidding. Wouldn't want the US Court of Appeals for the 8th Circuit suing me for copyright infringement :)

I'll wait for the transcript

[Cajun Hell]

After listening to the oral argument, what do you think?

Same as when someone posts a link to a video. I don't think anything yet, because non-text media requires a shitload more time and patience. . 60 seconds of audio (optionally with video, don't matter) = 6 seconds of text.

This is supposed to be an argument, not art. Please don't tell me the whole point is that the guy has a funny voice or something like that.

Still way too much

[cpghost]

What I think? $2250 per file is still WAY too much, as is the whole idea of sky high statutory damages as applied to a petty case of non-commercial file sharing. Seen from outside the US, this whole case looks extremely weird and outright crazy, not to say totally out of touch with reality. Sorry, I don't mean to offend anyone here.

Re:Still way too much

[NewYorkCountryLawyer]

What I think? $2250 per file is still WAY too much

I agree. The actual out of pocket damages are around 5 cents per unauthorized download. $10 for a 99-cent download would be enough.

Jammie doesn't get distribution rights

[Anonymous Coward]

Jammie doesn't get distribution rights, so why should she be paying for distribution rights?

Re:Jammie doesn't get distribution rights

[NewYorkCountryLawyer]

Jammie doesn't get distribution rights, so why should she be paying for distribution rights?

If you keep on being logical like that, you'll never be hired as an RIAA lawyer.

Speaking of dead dinosaurs

[Beerdood]

Reminds me of the message in a NOFX song, Dinosaurs will Die (or maybe you were referring to it)? Some of the lyrics :

Prehistoric music industry Three feet in la brea tar Extinction never felt so good

If you think anyone would feel badly You are sadly, mistaken The time has come for evolution Fuck collusion, kill the five

Whatever happened to the handshake? Whatever happened to deals no-one would break? What happened to integrity? It's still there it always was For playing music just because A million reasons why

(All) dinosaurs will die

Tax evasion?

[Anonymous Coward]

1. RIAA and labels claim very large amounts of money for "infringers".
2. They sell at least an equal amount, if not a lot more, copies of songs.
3. Thanks to 1, we know how much each song is worth.
So, we can simply look at their tax statements and deduce the number of sold songs.

Wild guess based on zilch: it'll be in the low teens.
Tax evasion, anyone?

Adam Scott

[Anonymous Coward]

One of the people talking sounds really like Adam Scott (Ben from Parks & Recreation).

Can't be serious

[ThatsNotPudding]

they call things like the Internet "disruptive technology" for a reason

In ten years the Internet as we knew and took for granted will be dead as a doornail.* It will not stand a chance against the most destructive 'technology' of all: multinational corporate greed machines and their political whores, so willing to please.

* And all the talk of mythical 'dark nets' being our saviour is beyond polliannish. Even if possible, it will be along the lines of a distributed but tiny Sneakernet.

Re:Can't be serious

[circletimessquare]

that's awesome, that you are so addled by fear that you accept these bogeymen as reality

you'll excuse the rest of us who don't just lie down and get raped when someone tries to rape us

if that is how you handle reality, good for you. the rest of us aren't so meek and cowed as you to simple menace

your words speak of a slave's mentality

fight for what is right, or shut up and fuck off

Re:Site is slashdotted

[Anonymous Coward]

Screw you, I got first post didn't I? Doesn't that account for anything any more?

GP

"Holistic"? Give me a break

[NewYorkCountryLawyer]

This is, I guess, the lighter side of the Law.

My favorite moment in the argument was when the judge asked the RIAA's lawyer (Paul Clement) whether he agreed that the statute requires, for distribution, that there be a sale or other transfer of ownership, or a license, rental, or lending. And Clement asked the judge not to rely on the words of the statute, but to read the statute 'holistically'.

I never knew the RIAA was so holistic. Maybe next they'll be wearing beads and tie-dyed t-shirts.

Re:"Holistic"? Give me a break

[NewYorkCountryLawyer]

Oops, my mistake... Not "license, rental, or lending", but "lease, rental, or lending"

Re:The courts already ruled on the making availabl

[NewYorkCountryLawyer]

And the courts ruled that making available is not distribution.

Correction: the lower court ruled that making available is not distribution.

Correction. THIS court, in a previous case not involving RIAA mp3 files, ruled that making available is not distribution. Which is why Judge Davis ruled that making available is not distribution.

Transcript of first 10 mins

[QuasiSteve]

NOTE: This is not the official transcript (if one does exist - I couldn't find it - please do link to it and mod this down), and is only of roughly the first 10 minutes. The rest is also very interesting but I suggest downloading the mp3 and playing it back at twice the speed (keep the pitch) because it. is. long. And I have no idea who the judges are, I think I heard 3 voices, so there you go.

Also... TIL: Typing remittitur is remarkably easy, and Firefox believes it's not a word.

00:00) RIAA
Good morning, your honors, and may it please the court, with the court's permission, I'd like to reserve 5 minutes for rebuttal.

Your honors, this appeal presents 2 issues of considerable importance to copyright law.
Whether the law protects a copyright holder's ability to make a work available to the public, and the circumstances in which a statutory damages award - that's within the range set by Congress - nonetheless may violate the due process clause.

Now appeliate attempts to block the court's review of the 1st issue by abandoning aspects of the relief that she procured below.
But, with all due respect, she continues to take the position that the district court was correct, and appelate review simply doesn't work that way.
A party's not free to pick and choose which parts of the district court's judgment they're gonna defend because they find other issues in the case more [ui]

00:50) Judge
It's rather complicated here were there are the 3 judgments.

00:54) RIAA
It is, your honor, I think that's right.
But in any event, I think that almost - sort of - underscores the equities here which is, you know, it's not just a matter of procuring a positive legal ruling and then abandoning on appeal, but it had the consequence of requiring 2 additional trials.
Because the 'making available' error was the district's court sole ground for not going forward and entering judgment on the 1st verdict.
I mean, in light of other observations of the district court I think it's pretty clear that the district court would have found that judgment constitutionally excessive.

01:26) Judge
Leaving the queston of damages aside for the moment, would it make sense for us to go back to that 1st judgment of the district court?

01:36) RIAA
I do believe it would, your honor, because I do think that, certainly for right on the 'making available' argument, then I think that almost automatically the right answer would be to go back to the 1st judgment.

01:37) Judge 2
What if you're wrong on that and the other side says "We're willing to let it go" anyway?

01:52) RIAA
Well, I think then, your honor, I don't know that that's a box that's available for them to check, I mean.. one thing.. [interrupted]

01:48) Judge 2
You think we should go to the 3rd verdict if we agree with the district court on setting aside the 1st verdict based on the 'make available'.

02:09) RIAA
I think if you considered the making available issue on the merits and disagreed with us - I mean I'd like to be able to talk you out of that - but if you reach the 'making available' issue in disagre.. [interrupted]

02;19) Judge 2
[unintellible] more a procedural issue right now..

02:22) RIAA
Right.

02:22) Judge 2
I thought, you say "If we go to the merits, yeah, then it follows that we would go to the 3rd verdict", but I'm asking whether we should go to the merits.

02:30) RIAA
I think we should, your honor.
In fact, I guess I would say under these circumstances, I don't think - with all due respect - you have a choice.
I think it would be one thing... [interrupted]

02:38) Judge 2
[ui] they default, aren't they essentially defaulting on the appeal?

02:43) RIAA
Well, you know, I don't think they are, your honor, in the sense that they aren't confessing error.
So I think they're putting this court in a very awkward position by simply, sort of, refusing

Re:The courts already ruled on the making availabl

[Theaetetus]

And the courts ruled that making available is not distribution.

Correction: the lower court ruled that making available is not distribution.

Correction. THIS court, in a previous case not involving RIAA mp3 files, ruled that making available is not distribution. Which is why Judge Davis ruled that making available is not distribution.

I assume you're talking about National Car Rental System v. Computer Associates? MP3s aside, I'm not sure that would apply anyway. As the court noted:

CA does not specifically allege that National gave a copy of the program to Lend Lease or Tilden. CA alleges that "National has used and permitted the use of the Licensed Programs for the processing of data for the benefit of third parties." CA did not allege use by Lend Lease and Tilden, but instead alleged use for their benefit.

This wasn't about "making available for distribution" at all, but whether using a program for a third party to process their data counts as distribution (in fact, the term "making available" doesn't appear at all in that decision).

The classic analogy is the video rental store. Thomas' argument is that if the store makes a bootleg copy and places it on the shelf, they have not yet distributed it but merely "made it available," and thus cannot be held to infringe.

To apply that analogy to National v. CA, it would be a video store that lets you pay an employee to watch a movie and then give you a review - in other words "distributing the functionality" but not the copy. But that's not what Thomas did, but rather the former - excepting her actual distribution to MediaSentry, she made the work available for copy, and not the mere functionality of the work.

And finally, National aside, the 8th Circuit is bound by New York Times v. Tasini, which held that placing a work in a database for public download was distribution.

Re:"Holistic"? Give me a break

[melikamp]

I never knew the RIAA was so holistic. Maybe next they'll be wearing beads and tie-dyed t-shirts

Wrong crowd: they are wearing silk shirts, Thomas Pink ties, smoking jackets, and evening dresses. All signs point to cocaine, lots of it.

Re:The courts already ruled on the making availabl

[NewYorkCountryLawyer]

The 8th Circuit is bound by New York Times v. Tasini, which held that placing a work in a database for public download was distribution

Oh so this is a slam dunk then. You must be very pleased.

Lawyer-mp3 in remix please?

[KreAture]

This clip is just begging to become the next big internet meme...
Can't someone mix it up and put a good beat on it?

Re:Lawyer-mp3 in remix please?

[NewYorkCountryLawyer]

This clip is just begging to become the next big internet meme... Can't someone mix it up and put a good beat on it?

Good idea. I hope they emphasize the "holistic" argument by the RIAA lawyer; that was the high point for me.

Paraphrase:

Judge: you agree, do you not, that there must be a sale or other transfer of ownership, or a lease, rental, or lending?

RIAA lawyer: don't look at the words of the statute, those will only confuse you... you've got to interpret the statute holistically

think?

[Anonymous Coward]

What do I think? I think RIAA can suck it.

Re:think?

[NewYorkCountryLawyer]

What do I think? I think RIAA can suck it.

You are not alone

Re:The courts already ruled on the making availabl

[Theaetetus]

The 8th Circuit is bound by New York Times v. Tasini, which held that placing a work in a database for public download was distribution

Oh so this is a slam dunk then. You must be very pleased.

Not at all, despite what you may think. I'm quite disappointed that neither either party nor the judge have looked at the willfulness issue, but are instead focusing on arguments that are already settled and, with our current pro-corporate SCOTUS, could not be overturned.

Yes, the scarcity IS artificial.

[Anonymous Coward]

The fact that you can create 10,000,000,000 copies of an MP3 indicate that any idea of scarcity doesn't exist.

So, yes, the scarcity exists only because of copyright on that copy.

Nobody is trying to create a clone of Lady Gaga.

It's simple model

[Anonymous Coward]

Charge a reasonable price for songs and movies. Look what Apple Apps are going for... $1.99 or less... Remember the bad old days of CD's for $20 or more!

Suppose we exclude hardware makers from the suit?

[Anonymous Coward]

What if we excluded those media conglomerates who own subsidiaries who make media reproduction technologies for the public. Ordinary objections aside, it's hard to take Sony's RIAA claims seriously when they sell Sony CD-R recorders and TAPE PLAYERS, going back 40+years. And tapes and other recording media.