Thank You for Being Our Fans, Please Keep Stealing Our Music

My little sister is only 7 years younger than me, but sometimes it feels like a whole generation.  (More on the generation gap.)  Never was this more apparent than when we stood together at the New Found Glory concert in San Francisco last month.

Music Coming of Age at the Turn of the Century

New Found Glory, or NFG for short, released their first full-length album in 1999, just as Napster was entering its short-lived heyday.  This band grew-up in the era of file sharing.  Not the band members, but the band itself.  Between 1999 and 2009, while Napster, Grokster and Aimster all came and went, while RIAA lawsuits against file sharers were filed and settled and won in court, NFG released six albums selling well over a million copies total and bringing in plenty of dollars.  (Three of the albums were certified Gold.)

San Francisco, the stage at the Regency Ballroom, the band has paused in between songs and the band members are thanking their fans for a decade of support.  “Thank you for downloading our songs!”  “We won’t tell you not to download music because we do it ourselves.”  “We don’t care if you’re paying for it or not, just that your listening to it.”  The thank you’s went on, thanking the fans for burning cds from their friends, for sharing with each other, for nearly every possible way you can think of getting music for free.  Then, as an afterthought, the bass player says to the lead singer, “and buying.”  “Oh yeah, and thank you to those who buy our albums, too.”

My sister was cheering and bouncing around with the rest of the madness that is young twenty-somethings at a rock concert.  I was standing in shock, my mouth gaping open, the wheels in my mind turning as a time line of the past 10 years floated past.

The Old Guard

Before this concert, I knew little about NFG.  In fact, all I did know was that they are one of my sister’s favorite bands.  How different this band and this concert were from the one my sister and I usually see together, a favorite of both of ours: Metallica.

Anyone familiar with copyright or the history of file sharing, regardless of their musical genre preferences, knows Metallica.  The legendary band that ruined the lives of college students everywhere by bringing a lawsuit against Napster.  Or at least, that’s the folklore.  Metallica brought the first suit against Napster.  But that suit actually settled.  The suit that brought Napster down was filed by A&M Records, A&M Records Inc. v. Napster, 239 F.3d 1004 (9th Cir. 2001).

Many people were angry with Metallica.  I was proud of them.  I was in college when Napster was in full swing.  I was in college when Napster was shut down.  I was probably the only one in my college who was glad when Metallica brought that first lawsuit.  In my mind, big, high profile superstars like Metallica were the only ones that stood a chance in the fight against Napster. 

As I mentioned in a previous post, my awareness of copyright was more acute than it ought to have been.  I was convinced that Napster had to be illegal and tried to convince my friends.  Either they didn’t believe me - “It can’t be illegal because it’s there.” – or they didn’t care, “Bands don’t see any of the money from an album sale anyway.”  In my mind, the lawsuit vindicated me; “I was right all along,” I thought.  But there was so much I didn’t understand, didn’t know, about the technology, about the music industry, about the sweeping changes already in progress.

The Shift Goes On

The changes of the music industry structure in the past twenty years are too detailed to go into here.  A&M was gone even before a decision came down in its lawsuit against Napster.  (History of the end of A&M.)  Suffice to say, file sharing couldn’t have been responsible for its death. 

Still, no one will deny the profound effect new technologies are having on the entertainment industries.  There are constant fights between guardians of the status quo and vanguards of the new business models. (Example.)  And bands are showing less and less support for the war-raging tactics previously promoted by the industry.

New Found Glory’s support of its music-stealing fans isn’t the only example of change.  Earlier this year, Bruce Springsteen asked to have his name removed from an ASCAP suit.  That suit had nothing to do with new technology or file sharing, but it shows the same reluctance to fight against those who enjoy the music.

The statements made by these artists exemplify a shift in the music world.  A shift that has already changed how the industry operates and how fans interact with their music.  A shift that is still rumbling.  I wonder what the bands just starting out will say to their fans ten years from now.

That Lady that Got Sued in Minnesota (Clearing up some lay-misconceptions about the Jammie Thomas trial)

One of the neat things about being an Ipper is that people know you’re interested in intellectual property.  One of the sometimes neat things about this is that they try to talk to you about whatever their idea of intellectual property is.  It’s not neat because you have to try to figure out what someone’s talking about and do some straightening out.  It is neat because you get a sort of down on the ground insiders view to the misconceptions that are out there.

Today, Ip’s What’s Up would like to clear up a few misconceptions overheard about the Jammie Thomas/RIAA trial.

• Jammie did not sue the music industry – the Recording Industry Association of America, an organization that represents a good chunk of the music industry in the United States sued Jammie.  The RIAA began a campaign of lawsuits in 2003 where they tracked down people who had shared files over the internet.  Both copying and distributing music without permission is against the copyright law.
• The ‘deal’ Jammie refused was a standard settlement offer that some view as extortion – Jammie’s case was a big deal because it was the first one where the person accused of sharing songs refused the settlement deal.  The RIAA usually offers that the person accused of sharing music pay about $5,000 and the RIAA will drop the law suit.  Some experts, such as Ray Beckerman, feel that this offer is simply the RIAA scaring people and extorting money from them.  There are questions about how accurately the RIAA can identify people it things have shared music.  There is also concern over how much of a difference there is between the $5,000 settlement offer and the $24 value of the songs supposedly shared.  (In Jammie’s case, she was accused of sharing 24 songs.)  In short, the settlement was refused on the principle of the matter.
• Jammie was not sued twice – although this was her second trial, she was not sued a second time.  The first trial was ruled a mistrial because of some problems with the instructions given to the jury.  The second trial sort of replaces the first one.

The widely publicized results of the second trial were worse for Jammie than the first trial.  In the first trial she was found to have committed copyright infringement and the RIAA was awarded $200,000 in damages.  This time, the RIAA was awarded almost $2 million.  There is talk in the copyright world of a third lawsuit; one that would challenge the constitutionality of the damages for copyright infringement.

Copyright War Summit Report: Recording Industry vs. The People

Recording Industry vs. The People, presented by attorney and author of the blog Recording Industry vs. The People, Ray Beckerman
Beckerman discusses how the RIAA has proceeded in their law suits thus far, highlighting the biggest problems with the RIAA's tactics.  Some of these problems include: unlicensed investigators, insufficient evidence, and violations of various rules governing Federal Court procedures (Federal Rules of Civil Procedure). 

Most interesting is the missing proof of registration.  Under US copyright law, registration is not required for copyright protection, but it is required in order to recover statutory damages in an infringement case.  Most RIAA cases settled, and for the few that went to court, none investigated the required registrations.  But it looks like that’s about to change in the new Thomas retrial.

Another surprising element to the RIAA cases (or not-so-surprising, depending on how you’re looking at it) is that the RIAA has not gone after anyone who has used bitTorrent types of services.  Hmm… seems to me that’s like only chasing after pirates who don’t have boats.

If you’re interested in the RIAA’s lawsuits, have ever downloaded  music or even ever thought of sharing music online, Beckerman’s presentation is well worth a watch.

The Tenenbaum Fair Use Defense: Why?

Professor Nesson's plan to use a fair use defense in the Tenenbaum/RIAA trial is causing quite a stir.  The Harvard Law professor heading up Joel Tenenbaum's defense team seems firmly rooted in his position, believing that file sharing is a fair use.  "From my side the path is straight," he said in a serious of tweets discussing ruminating on his point.

Other copyright experts have weighed in on this approach, in part because Nesson has either asked them for their opinions or has asked them to be expert witnesses at the trial.  They do not agree that file sharing is fair use.  Expert squabbles aside, this Ipper has one question: Why use this defense? 

The original, or at least most previously focused on position was that copyright statutory damages are unconstitutional because of their extremely high ratio between value of actual harm and value of punitive damages.  What do you gain by pursuing the fair use defense that you don't get by pursuing the statutory damages position?

File Sharing Becomes Legal - and?...

Legal file sharing is the most obvious outcome of a successful free use defense, but it really doesn't do us any good.  The music industry is moving towards accepting free file sharing (much to my chagrin).  There's the recent deal in China that creates a free legal way for consumers to download music.  There's also the Canadian proposal to add an opt-out-able music license into internet payments.  And many more proposals and trial runs of different ideas around the world.  Yes, the industry is still pushing things like ISP 3-strikes laws, but it's just buying time.  The industry has a plan.

So, free legal music is coming.  If the fair use defense in the Tenenbaum case succeeds, we just get the same outcome (in a less valuable way - more later) a bit early.  Maybe.  With the slow pace of trials, the court might not even have a chance rule on the issue until the matter is completely moot.

The Statutory Damages Claim - Real Benefits

The Copyright Act's statutory damages apply to all infringement, not just file sharing.  So, if the level of statutory damages is found to be unconstitutional, the change in the law affects anyone accused of copyright infringement.  This includes people who post YouTube videos, musicians who use sampling, and Lessig's poster-child: remix artists.

If a court finds the copyright infringement statutory damages to be unconstitutional, we get to make the law fair again.  If a court decides file sharing is fair use, all we get is an even murkier definition of fair use.

RIAA Hearing Live Tomorrow - POSTPONED

--I had this nice little post written about tomorrow's first-ever internet broadcasting of a US Federal Court hearing.  Then, yesterday, the Judge granted a stay.  The new hearing is scheduled for Feb. 24th. I've decided to go ahead with a post about the case, for those who might not be familiar with it yet. --

Judge Nancy Getner authorized the internet broadcasting of a pre-trial oral arguments in the Sony BMG Music v. Tenenbaum case (aka Joel Fights Back), originally scheduled for Thursday.   Her order suggested the streaming itself be done by Courtroom Live.   The Berkman Center at Harvard Law planned to rebroadcast the hearings live under a cc license.  The RIAA moved for a stay on the pre-trial hearing until the 1st Circuit can hear their appeal on the internet in the courtroom.  Judge Getner granted the stay Wednesday.

The Case

The RIAA is suing a 24 year old graduate student from Boston.  They allege he illegally downloaded and shared [edited] seven songs, nearly seven years ago.  Damages claimed: $1,000,000+.

Joel first received his "settle-or-else" letter in 2003.  The RIAA wanted $3,500.  He offered $500.  They refused.  Years later, in 2007, the RIAA finally dragged him into court.  Joel decided to fight back, pro se.  Judge Getner didn't like how crooked Lady Justice looked trying to hold up such an unbalanced scale and ensured that Joel received pro bono legal services.  (transcript)

Joel's pro bono legal counsel consists of Harvard Law professor Charles Nesson and a team of Harvard Law students.  The team distributes news about the case in a multitude of ways, including via their webpage, a the class blog and Twitter.  The actual trial is currently set for March 30, 2009.

The rescheduled hearing is pre-trial oral arguments.  The Defendants are arguing for the RIAA's allegations to be dismissed.

Access to the case's documents can be found on the Recording Industry v. The People blog.

The RIAA's Opposition to the Streaming

The RIAA has tried a lot of tactics and arguments to prevent the streaming of the hearing.  First, they claimed that the Judge doesn't have the authority to allow cameras in the courtroom.  (Then who does?!)  After the Judge ruled to allow the internet streaming, the RIAA filed an appeal asking the First Circuit to stay Judge Getner's decision.  [There are questions as to whether this type of appeal (to an interlocutory order) is even allowed.]  More information on the RIAA's desperation can be found here.

In addition to the appeal, the RIAA also moved for a stay of the pre-hearing, ideally to get the First Circuit to say the hearings cannot be broadcast on the internet before they happen.  Judge Getner agreed that the First Circuit should hear the appeal before the hearings proceed.

"...there is no emergency related to the hearing originally slated for January 22, 2009...postponing the hearing will allow the First Circuit an opportunity to fully consider the petition before it, particularly because a number of claims presented in the petition for mandamus were never raised in their current form in the district court."

The Judge's Position on the Streaming

Judge Getner called the RIAA's position "curious" because it seems counterintuitive to their professed aim of trying to educate the public about the evils of downloading.

"they [RIAA/Plaintiffs] believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation."

"The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these filesharing lawsuits."

Presentation About Case by Harvard Law Team Member

Following the French?

Earlier this month, the American Bar Association Journal reported in a little article that the RIAA is going to stop randomly suing people for illegal music downloading.  Seems the RIAA finally realized that tactic was not producing the desired results and getting them extra problems.  This is good news.  However, the new approach is not without its own problems.

"The RIAA now plans a more practical enforcement effort concerning illegal downloads," the article explains.  And just what is this more practical enforcement?

"With the help of Internet service providers, those who repeatedly download music illegally and ignore ISP warnings are expected to have their Internet service first slowed down and then stopped entirely..."

That's practical?!  In a country that historically places such a high value on freedom of speech, independence and privacy, in a society that revolves around technology, this "practical" solution is opening several very large cans of worms.

As it turns out, the solution may not be quite as draconian as the quote makes it sound.  According to the Wall Street Journal, the new plan is actually a series of agreements between the RIAA and different ISP providers.  The deal is that the RIAA will stop suing consumers and the ISP providers will start contacting customers who appear to be illegally uploading copyright protected material.  If the customers ignore the warnings, the ISP providers can slow down and eventually cut-off the internet service.

The IPKat reported some months ago on a similar plan in France.  In late October, the French Senate approved a law that would cut off the internet service of people who illegally download copyright protected material.  Under the French model, internet access revocation is the final out in a three-strikes law.  Strike one: warning email.  Strike two: warning snail mail letter.  Strike three: the dark ages for an entire year.

In general, people seem to like the idea of receiving warnings and a chance to stop infringing behavior better than lawsuits.  However, many have also expressed some concerns.  French Senator Retailleau decried cutting off internet as discriminatory.  He described internet access as an "essential commodity" and its removal as "traumatic."  Readers of IPKat also commented on the variety of privacy issues raised by this method of fighting infringement.

Groups like the Electronic Frontier Foundation and Public Knowledge express similar concerns about the American plan and raise some others.  The president of Public Knowledge is worried about the due process of the system, stating, "we want to make certain that customers are not cut off from their Internet service or have their service altered solely on the basis of a claim by a copyright holder that file sharing is taking place."  The EFF points out that the punishment here seems to greatly outweigh the crime.  Guess Gilbert and Sullivan wouldn't approve.

Some proponents of the new arrangements believe that the warnings given to infringers by their internet providers will be enough to prevent the customers from continuing their illegal behavior.  If this is true, the system is fine because the ISP providers will never need to reach the controversial step of shutting off someone's internet service completely.  But what happens when someone decides to call their bluff?

 

 

Other related links:

Will France Introduce Digital Guillotine in Europe
French Internet Law Clashes with EU Position
RIAA Shuts Down its Lawsuit Machine
Three Strikes, Three Countries: France, Japan and Sweden
RIAA to Stop Suing Music Fans, Cut Them Off Instead
RIAA Confirms It Will Take Piracy Fight to ISPs