The Jammie Thomas-Rasset and Joel Tenenbaum verdicts have highlighted this chasm between the "Internet" view of copyright, and what average citizens think of the topic. Now three juries, made up of 34 ordinary people from the Minneapolis and Boston areas, none of whom had any connection to the entertainment industry, have passed judgment upon use of p2p networks to obtain music without paying for it -- an activity that is excused, or even celebrated, in many quarters of the web. And all three of those juries demonstrated through the very large damages awards they imposed that they view illegal downloading and "sharing" as wrong, and deserving of harsh sanction.
Biologist David Crotty, writing at The Scholarly Kitchen, makes a similar point, which serves as valuable reminder to us all that we need to get out of our respective bubbles and "echo chambers," and at least attempt to understand in good faith the arguments and motivations of those with whom we disagree:
I recommend reading Crotty's entire, very thoughtful, post.[W]hat’s really interesting to me is that the jurors chose such high figures in the first place. I spend a lot of time keeping an eye on copyright issues, particularly the way new technologies are having an effect on copyright holders and users of copyrighted material. The general consensus online is that our copyright system is broken, that it is being abused by copyright holders, that the RIAA is the root of all evil, and that consumers have lost all respect for copyright, evidenced by the widespread swapping of music files online. The verdicts awarded are making me realize that perhaps I’ve spent too much time inside the internet echo chamber.
The juries in both cases chose figures that were much higher than the minimum allowed by law. Clearly they took the infringement seriously and placed a much higher value on the rights granted the copyright holder than the defendants, their legal teams, and various online pundits expected (note how often you see the phrase “jaw-dropping” in the coverage of each case). If there was great sympathy for filesharers, and if, as alleged, “everybody does it,” wouldn’t the juries have gone for a lower amount? If even $750 per song is excessive, why did the respective juries opt instead for $22,500 and $80,000?
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While I don’t agree with the RIAA’s strategy of suing their own customers (it’s ineffective and bad for business), it is heartening to see that people still do place a value on creative efforts and that they are willing to send a strong message in hopes of deterring future copyright infringement.
The development of new technologies has led to a rapidly changing landscape, and copyright laws could certainly do with revision and updating to address these effects. But if there is no respect for the law, and no respect for copyright, then trying to work out fair and forward-looking adjustments is pointless.
The juries’ actions here at least show us that there’s still strong support for promoting “Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
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Perhaps there would be more “Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” if the limited times had not been extended to an absurdly long duration by corporate interests seeking to preserve their monopolies as long as possible.
ReplyDeleteAs the author of one of the posts cited above ("copyright system is broken"), let me assure you that while I'm not a lawyer, I'm quite familiar with the actual law. I've written an academic chapter on the Digital Millennium Copyright Act, won a temporary exemption on it, and have in general been reading about copyright and related issues for many, many years.
ReplyDelete@sethf:
ReplyDeleteI certainly wasn't referring to you (or anyone else specifically) as someone who misstated the law. I've actually read your work for years, and, while I often disagree, I've found your writing to be interesting and insightful, particularly for its willingness to cut against the grain of the blogospheric mob.
@Anonymous 11:37:
ReplyDeleteThere can certainly be debate among reasonable people about the proper length of copyright terms. But that debate really has nothing to do with the Tenenbaum case. All of the songs on which he was found liable are of recent vintage; I believe the oldest was the Ramones' 1981 "The KKK Took my Baby Away"; most were considerably younger.
As always, very interesting...
ReplyDeleteI'm and Art Director and Graphic Designer by trade. Now I teach graphic design at a collegiate level.
Copyright is taken very (very) seriously in the commercial field. Everything is paid for. Images within images are paid for (when needed). Typical contracts with photographers specified that only three (maximum) photos could be used for publication (out of a shoot of hundreds of images). Imagery was time controled and area controled (USA, first rights, etc.). Every, and I mean every use, was accounted for.
I find it amusing that when it comes time to talk to my students about how copyright is actually dealt with in the design industry, words fail. No matter how I try to emphasize how strictly copyright is taken in the "real" world, it's simply that they cannot put their heads around copyright. There's too little correct information in their internet world.
A lot of it has to do with the "bubble" mentioned in the article.
"if the limited times had not been extended to an absurdly long duration by corporate interests seeking to preserve their monopolies as long as possible."
ReplyDeleteAllow me to correct a clearly incorrect statement. In Eldred v. Ashcroft, the Supreme Court explained that the "key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term."
So if you want to blame something for your outrage at copyright terms, blame the EU and the Berne Convention, not Disney.
While I'm on the subject, even if something like Steamboat Willy entered the public domain, Mickey Mouse and his likeness are still protected by trade identity law, which, so long as Mickey is used in commerce, exists in perpetuity. But I don't see you raging against that.
Anon @3:55PM - so your argument is that we should accept the highest standard? Allowing Europe to dictate our policy and laws? Well that's what has happened. And who said the aforementioned corporations didn't lobby the Europeans hard for that change? So if Canada goes for a term of life + 90 years we should adopt that? How long do you think it should be? Perpetual?
ReplyDeleteAnd by the way, trade identity laws vary widely across jurisdictions. Enforcement on this basis would be difficult in much of the world.
As for Mickey Mouse, early works containing him are also in the public domain in much of the world, including Japan and Canada.
Ok, typically I would probably write a pretty substantive comment about how you're wrong and yada yada yada. But why bother? Someone has already done it for me, and I provide a link below:
ReplyDeletehttp://techdirt.com/articles/20090807/0207275797.shtml
Just wait till the digital generation matures and outnumbers the analog dinosaurs.
ReplyDeleteTwo words: jury nullification.
Be afraid, be very afraid...
I think Stanley Milgram would find these damage awards interesting. I doubt Mr. Crotty has given much scholarly thought to how juries work - and some simple, common-sense thinking might do him some good. Juries, at bottom, require consensus. It is fairly expected that, in a jury of 12, if 6 favored the minimum damage award of $0-750 and 6 favored the maximum of $150,000, then $80,000 could be a simple "logical" result in the Thomas case (with some other blend in the Tennebaum case). I have watched mock juries - who didn't know they were "mock" or being watched- deliberate using exactly that "logic." In fact, I have manipulated said juries by asking for number so insanely large that whatever equally large deviation they made, would still lead to an insanely large amount for my client! Clever, eh? Easy, yes! Ask for $2 million and you might get $200,000. Ask for $20 million and you might $2 million (or $20 million, even better)! When the number is so large that the common person can't quite wrap his or her head around it, it doesn't matter how much you ask for! Morality, the "law," economics - in the end, just stuff for the ivory tower. Juries are faced with a yes or no question and a blank into which to put a number. This is what is happening in copyright land. In the case of copyright laws enforced against a digital generation for whom the laws are incomprehensible, the penalties just don't make sense outside the "echo chamber" of the court and jury room. And rightly so. For example, a $150,000 damage award in 1976 would equal a $560,000 damage award today. So the statutory range set by Congress in 1976 was set to an equivalent half-a-million for today. Do we really think Congress intended to impose an half-a-million dollar penalty on today's digital generation for sharing a "recent vintage" (I'll use your oxymoron) song - or even "Oops, I Did It Again"? Ridiculous. (A Congress that btw, didn't know the terms it granted would later be extended to the limited-term equivalent of FOREVER). Instead, these laws were meant for larg-scale perpetrators and king-pins who usurped the market of legitmate business, not peasants who bought a black-market cassette tape on the street corner. That a jury (which included 0 peope who had ever shared a file online - these people were forbidden to serve because they would see the wrong-doing as, well, not "that" wrong) could be duped into mis-applying them says nothing about the rightness or wrongness of the law itself. The juries simply worked within a pre-set scale and found consensus - in the Thomas case against a defendant who blamed her kids and in the Tennenbum case against a defendant that admitted guilt. Guilt was never really a question for consensus, only how much to penalize the guilty. I know "guilt" is the wrong word, but juries, they mix it up with "liability" and I'd guess "infringment" all the time. These awards say nothing about whether pop-culture can or should be owned. They say nothing about the future of the internet, file-sharing, or copyright law. They will probably be deemed unconstitutional as violating due process, and rightly so. So in the end, these awards show that American citizens can be tricked into acting unconstitutionally if given a guilty defendant and an absurd range of penalties to choose from. Stanley Milgram taught us as much. I could go on, but I feel I've said alot when only deaf ears may be listening in this tiny echo chamber.
ReplyDeleteCopyright is definitely taken far too loosely by many subcultures, especially those bred and formed on the Internet as mentioned on this post. Further, many on the internet have virually no understanding of what it truly means.
ReplyDeleteWith that said, the current copyright laws and their ancilliary go so far as to be highly limiting. The terms are far too long and the DMCA prevents uses which would otherwise fall clearly into the fair use exemptions.
While I believe he may go too far, Richard Stallman has some excellent points about how these limitations affect people, and worse how they may effect people if they are further enhanced as some in the content industry wish.
Finally though, it must be emphasized that while the law should be changed, it must be obeyed until it can changed.
@Anonymous 10:09:
ReplyDeleteThat Techdirt post is downright bizarre. It goes on at length attempting to rebut a point I never made, namely that the Tenenbaum jury was a "representative sample." Re-read my post; I simply never said that. Rather, I wrote that the jury "highlighted this chasm between the 'Internet' view of copyright, and what average citizens think of the topic." I didn't, and don't, claim that these 10 people were some scientific "representative sample" of public opinion. Had I wanted to make that claim, I would have said it. It was deeply dishonest of Techdirt (though, sadly, typical), to have put those words into my mouth.
You were saying that the Jury's decision reflected the "average citizen's" opinion on copyright. That certainly is implying that the jury is a representative sample.
ReplyDelete@Anonymous 8:04:
ReplyDelete"Average citizens" in this context means everyday, normal people. It doesn't mean a scientific, statistically accurate representative sample that is a perfect reflection of society at large. Indeed, no 10-person jury could be a representative sample.
Anonymous 1:44pm:
ReplyDelete"Just wait till the digital generation matures and outnumbers the analog dinosaurs.
Two words: jury nullification."
A couple more words: Never going to happen.
First, jury nullification is only inherent to criminal cases. It simply doesn't exist in civil trials.
Second, growing up and maturing involves living in a world governed by laws and a general social order. And adults in this society pay for the goods and services that they consume. The perspective gained from having to actually work for the things that you own necessarily entails a respect for the work of others, and that is why you see, time and time again, regardless of age, a disdain for those who feel like they can take what they want, without payment, and without regard to consequences.
Anonymous 7:33 -
ReplyDelete"So the statutory range set by Congress in 1976 was set to an equivalent half-a-million for today."
The maximum wilful statutory damages in 1976 was $50,000, which in CPI-adjusted dollars, is approximately $194,000 today. The fact that Congress hasn't even kept up with inflation in terms of the maximum damage award completely discounts your statement.
"Do we really think Congress intended to impose an half-a-million dollar penalty on today's digital generation for sharing a "recent vintage" (I'll use your oxymoron) song - or even "Oops, I Did It Again"? Ridiculous. (A Congress that btw, didn't know the terms it granted would later be extended to the limited-term equivalent of FOREVER)."
Congress has had 33 years since the 1976 revision of the law to exempt non-commercial infringers from the statutory damages provisions. The fact that it has not done so, while passing notable other copyright amendments in the interim, is plainly evident that they intended no such distinction.
As to your second point, I'm not sure what copyright term limits have to do with statutory damages. Even if we rolled copyright law back to the Statute of Anne, works properly renewed would still be protected for 28 years. So in your example, Britney's song would still subject its sharer to liability, as would most works currently on the sharing networks given the propensity for infringements of contemporary works.
In fact, given the underlying rationale that copyright law should provide authors the incentive to create and distribute their works, a shorter copyright term (and therefore a smaller window for remuneration) would call for greater, as opposed to lesser, damages.
"Instead, these laws were meant for larg-scale perpetrators and king-pins who usurped the market of legitmate business, not peasants who bought a black-market cassette tape on the street corner."
Perhaps you could point me to the statements in the congressional record that substantiate this claim? That was rhetorical so please don't bother, because there's simply no evidence to support your statement.
@ Anonymous 1:07:
ReplyDeleteIf, as you said, "a shorter copyright term would call for greater damages" then would you agree that after 1976, when a later Congress increased the damages and then a later Congress extended the c term, these actions were against what logically would "promote the arts and sciences?" i.e., the Constitutional mandate? That question, as was yours, is rhetorical. So we agree: an increased penalty over a longer term is unconstitutional!
You are not quite correct that Congress didn't exempt non-commercial infringment in 1976 - it adopted a fair use provision instead - one created first in the judiciary and one that accounts for the commercial nature and other nuances of the alleged infringment.
My statement that these laws were meant for the "king-pins" of copyright piracy is not expressly supported in the Congressional record, but evidenced over time via its enforcement. Since 1976, the significance of technolgoy enabled infringment by individuals has always been debated at the "kingpin" level through lawsuits against the technology provider in cases like Betamax, Diamond Rio, and Grokster. Only recently have individuals been targeted and only recently have campaigns at the level succeeded. In fact, prior to 2003, legal scholars believed that lawsuits against individuals wouldn't make sense in the technology enabled copyright infringement context when you could simply sue the technology provider for direct and contributory/vicarious infrignement. So today's Congress has not had 33 years to review the rift we are debating - at best it's been 5 years since the RIAA lawsuits began and 1 year since the first Jamie Thomas verdict.
I notice that you use the term "Congress" like you're talking about a person: "Congress has had 33 years...it has not done so" but Congress is a group that evolves and changes every 2 years. So note that the congress of 1976 that enacted the copyright act has not had 33 years to do anything as copyright law enacted by its predecassors has spiraled out of control.
Furthermore, change from this ongoing excessive expansion of copyright law continues to be unlikely now because the current congress and government acts at the will of content owners who favor more copyright law and stricter enforcement. Our normally pro-consumer congress-people, i.e., Democrats like Sen. Leahy are on the RIAA members' bankroll and co-sponsoring bills like the "Pro-IP" bill, while the Justice Department officially supports the Thomas 2 verdict. Note: Justice was recently stocked with a handfull of RIAA and MPAA pointmen, unfortunately, at the direction of usually pro-consumer Pres. Obama.
As with fair use, the courts, not Congress will have to lead the charge toward reason, balance, and fairness. Afterall, as I noted earlier, congress didn't create the fair use guidelines, it simply adopted it. Fair Use was created by the courts, by a man named Justice Story, in a case, Folsom v. Marsh.
I hope for reason from Judge Davis and Judge Gertner. Reason that examines the exact nature of the wrongdoing and resolves it fairly and equitably between the parties, not punitively, as this is a ultimately civil matter. If our judges can't undo the Milgram-esque groupthink of our dice-rolling, straw-grabbing juries, we are all doomed.