Deciding the Fate of Music

A follow-up from the pre-Easter Tenenbaum fair use defense post - a further look at why a court should not address the issue (again) of whether or not file sharing is fair use.  As mentioned in the previous post, legal free music is coming.  A court decision ruling file sharing as fair use would only hasten the inevitable.  This hurrying is unnecessary and would be detrimental to the progress already being made.

Let the People Do It

There are companies in the industry currently working on how to make the music industry work best for everyone, including the fans and artists.   Let the industry play it out a little while longer and figure out where its going.  Forcing the industry's hand never proves good; it freaks out and reacts without taking time to figure out if its actions make sense.   

Allowing the industry players, the musicians, the experts and the fans (yes, they have a say now, too - the musicians are listening) to hammer out a solution that works for all will produce a much better result than a court handing down a decision from on high.  Allowing those who have a stake in the matter to develop a solution fosters more cooperation.  A value our democratic society is supposed to value.  Cooperation in an industry that desperately needs to rebuild its relationship with the rest of us.  It also gives those who participate a deeper connection to the outcome; they find value in the product of their creation and are more likely to support it.

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.

Labels aren't as Clueless as We Think

The Leadership Music Digital Summit is winding up today at Belmont University in Nashville.  This Ipper had the good fortune to attend many of the panel sessions.  Obviously, two days of digital music discussions produces lots of bloggable material, but today we'll discuss only one thing, the most encouraging part of Tuesday: the Keynote address by Rio Caraeff of Universal Music Group.

When we hear about record labels, especially the big four, we hear the same things over and over again: they're clueless, they can't keep up with the technology changes, they don't understand their audiences, they're evil, etc.  Today, Mr. Caraeff showed us just how wrong those statements are.  (Well, except the last one, jury's still out on that.) 

Caraeff is the head of eLabs at Universal, a team that focus on all aspects of digital development and music: cell phones, downloads, streams, videos, you name it.  They are not focused on content, but on the context.  Music used to be an experience, now it is data.  To Caraeff and Universal, this is a problem.  Where's the value if the product you buy is exactly the same as the product you can download for free?

So, they're working, and they're working hard, to bring back the experiential aspects of music.  The traditional album, with all its neat cover packaging and fancy inserts, is dead.  But, Caraeff explained, Universal's eLabs is working on creating a new type of packaging for digital downloads (and they aren't talking DRM).  Packaging that connects the listener to the music like the old album covers used to do.  And, one of the best parts, they are focused on using open technology, no proprietary software.

Caraeff didn't go into exactly what this new packaging will look like.  They might not even know yet.   But, that doesn't matter.  The encouraging part here is that Universal recognizes the changes in the industry; they're working on solutions; they are innovating, and innovating with a focus on the fans.  They know that access is now more important to consumers than possession.  (Caraeff expects music to be all cloud-source in about 5 years, rather than mp3 downloads.) 

Universal is not sitting back and relying on RIAA lawsuits, or simply trying to hold out until all their artists are signed under 360-deals.  As Caraeff put it, both the artist and the fans are the customers.  Universal's eLabs is focused on creating a new model that benefits all their customers.  And the simple fact that they're trying, that puts a smile on my face.

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