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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?"
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.
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. ;)
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.
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.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
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.
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)
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