Jammie Thomas from Minnesota was a good sharer. She shared 24 songs on a file sharing website called Kazaa. The price? $9,250 per song, for a grand total of $220,000. I guess mother was wrong about being a good sharer.
The Recording Industry Association of America went after Jammie hard for violating copyright laws by uploading her songs to the website under the theory of “making available” songs for distribution and reproduction. This theory would hold the uploader liable regardless of whether any song was in fact shared, meaning whether anyone took the uploaded song and then downloaded it.
Jammie is appealing the ruling on this issue with a split of authority, critics arguing that it leads to grave mischief given the potential for accidental uploading and computer sharing. Significantly, this is a strict liability statute, so intent plays no role and need not be proven.
Years ago, I represented a bootlegger in music and movies, back in the quaint old days when they were analog and duplicated on machines one at a time. While this is a civil cause of action, the penalties are so draconian that it was overwhelming. In fact, it was so overwhelming as to be laughable. Try to get a $220,000 out of some of my clients! Hah! Talk about trying to get blood from a rock.
This was one of those peculiar situations where the industry does its own policing, having its own investigators find the culprits and bring them to justice under laws designed to allow them to do impose criminal-like punishments under civil-law circumstances. It’s purpose was to protect the integrity of the industry, which must depend on the revenues from sale of records and movies to pay for artists to create more records and movies (not to mention gold-plated Hummers and Crystal champagne). Hey, if they have a hit, they’re entitled to squander their earnings any way they want. This is America, after all.
If the RIAA was limited to actual damages, it just wouldn’t pay to police the bootleggers. But when Congress enacted this industry protection, it was a different era. There was no such thing as digital uploads. There was no such thing as file sharing. The law was directed at people like my client, who was a real, honest-to-God bootlegger. My guy was stealing copyrighted songs and movies for resale. He was doing it for money. He knew what he was doing, took the risk and got caught.
Proportionality of penalty was an issue, as always, but at least my client came by his punishment honestly. He deserved to get nailed. He wasn’t crying about it, and nobody was crying for him. But as noted, intent is not a part of the equation here. The uploader need not be malevolent, nor motivated by profit. It just needs to happen.
And because it’s civil, it need only be proven by a preponderance of the evidence, not beyond a reasonable doubt. This means that they don’t have to prove that even if Jammie’s roommate, kid brother or friend shared the computer, Jammie is still more likely than not to have done the uploading. That’s all it takes.
This case presents a good example of two independent problems. The first is the use of civil law to perform the function of criminal law. Why do I say that? Because the penalty, while not imprisonment, is so severe and automatic that it is inherently punitive. It crosses the line between civil and criminal in impact, without providing the protections required of criminal laws.
The second problem is that it was a law developed in the age of analog that is now applied in the age of digital. When my client violated the copyright, there was no doubt that he knew what he was doing. Does a teenager today appreciate the full potential of copyright violations by sharing a song with a friend’s MP3? Even if they do, does society really want to turn that many teenagers into pseudo-criminals? Maybe so. Maybe the word has spread far enough after the Napster fiasco that every teen should be well aware that this is something they are not allowed to do.
Even if Congress decides that teens are sufficiently evil today by dint of their malignant uploading, one still needs to question whether the penalty, $9,250 per song for Jammie, that was deliberately punitive (and goes to the RIAA, remember, under the theory that they have to pay for their private police force to investigate thesecrimes infringements), for my old-time bootlegger is still appropriate for Jammie.
Considering how pervasive file sharing has become, and how teenagers have used their ingenuity to avoid both paying for their songs and avoiding wholesale prosecution, my guess is that the RIAA is feeling a real need to make some high profile scares to remind kids that they too can end up like Jammie if they upload/download songs. Frankly, it’s understandable. But perhaps the issue needs to be reexamined by Congress to decide whether this is the best, or even the right, way of dealing with the problem.
Somehow, I don’t think either Congress, or the RIAA, really wants to come down that hard on a generation of Ipod babies, who will someday have votes to cast and income to spend. But I could be very wrong about this.
The Recording Industry Association of America went after Jammie hard for violating copyright laws by uploading her songs to the website under the theory of “making available” songs for distribution and reproduction. This theory would hold the uploader liable regardless of whether any song was in fact shared, meaning whether anyone took the uploaded song and then downloaded it.
Jammie is appealing the ruling on this issue with a split of authority, critics arguing that it leads to grave mischief given the potential for accidental uploading and computer sharing. Significantly, this is a strict liability statute, so intent plays no role and need not be proven.
Years ago, I represented a bootlegger in music and movies, back in the quaint old days when they were analog and duplicated on machines one at a time. While this is a civil cause of action, the penalties are so draconian that it was overwhelming. In fact, it was so overwhelming as to be laughable. Try to get a $220,000 out of some of my clients! Hah! Talk about trying to get blood from a rock.
This was one of those peculiar situations where the industry does its own policing, having its own investigators find the culprits and bring them to justice under laws designed to allow them to do impose criminal-like punishments under civil-law circumstances. It’s purpose was to protect the integrity of the industry, which must depend on the revenues from sale of records and movies to pay for artists to create more records and movies (not to mention gold-plated Hummers and Crystal champagne). Hey, if they have a hit, they’re entitled to squander their earnings any way they want. This is America, after all.
If the RIAA was limited to actual damages, it just wouldn’t pay to police the bootleggers. But when Congress enacted this industry protection, it was a different era. There was no such thing as digital uploads. There was no such thing as file sharing. The law was directed at people like my client, who was a real, honest-to-God bootlegger. My guy was stealing copyrighted songs and movies for resale. He was doing it for money. He knew what he was doing, took the risk and got caught.
Proportionality of penalty was an issue, as always, but at least my client came by his punishment honestly. He deserved to get nailed. He wasn’t crying about it, and nobody was crying for him. But as noted, intent is not a part of the equation here. The uploader need not be malevolent, nor motivated by profit. It just needs to happen.
And because it’s civil, it need only be proven by a preponderance of the evidence, not beyond a reasonable doubt. This means that they don’t have to prove that even if Jammie’s roommate, kid brother or friend shared the computer, Jammie is still more likely than not to have done the uploading. That’s all it takes.
This case presents a good example of two independent problems. The first is the use of civil law to perform the function of criminal law. Why do I say that? Because the penalty, while not imprisonment, is so severe and automatic that it is inherently punitive. It crosses the line between civil and criminal in impact, without providing the protections required of criminal laws.
The second problem is that it was a law developed in the age of analog that is now applied in the age of digital. When my client violated the copyright, there was no doubt that he knew what he was doing. Does a teenager today appreciate the full potential of copyright violations by sharing a song with a friend’s MP3? Even if they do, does society really want to turn that many teenagers into pseudo-criminals? Maybe so. Maybe the word has spread far enough after the Napster fiasco that every teen should be well aware that this is something they are not allowed to do.
Even if Congress decides that teens are sufficiently evil today by dint of their malignant uploading, one still needs to question whether the penalty, $9,250 per song for Jammie, that was deliberately punitive (and goes to the RIAA, remember, under the theory that they have to pay for their private police force to investigate these
Considering how pervasive file sharing has become, and how teenagers have used their ingenuity to avoid both paying for their songs and avoiding wholesale prosecution, my guess is that the RIAA is feeling a real need to make some high profile scares to remind kids that they too can end up like Jammie if they upload/download songs. Frankly, it’s understandable. But perhaps the issue needs to be reexamined by Congress to decide whether this is the best, or even the right, way of dealing with the problem.
Somehow, I don’t think either Congress, or the RIAA, really wants to come down that hard on a generation of Ipod babies, who will someday have votes to cast and income to spend. But I could be very wrong about this.
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I’ve got nothing–absolutely nothing–of substance to add to this post.
But I would like to note that while researching issues related to amending supporting depositions I was pleasantly surprised to come across a case detailing your valient effort to beat a traffic ticket. Fascinating arguments you made, my friend;)
That was a very funny story (as long as we’re already off topic). Not only were my arguments correct, but they scared the crap out of the village and 5 other surrounding villages. My motion would have blown apart a 6 village consortium that shared police services, and it would have been a disaster for them. They never realized the problems with what they were doing.
So after the village justice denied the motion, the village prosecutor called me the next day and told me he would dismiss the ticket if I promised not to appeal.
The Private Police of the Recording Industry