Thursday, February 08, 2007

Great Article in Groklaw about the significance of Capitol v. Foster

Here are the first few paragraphs of a GREAT article which appears on Groklaw about the significance of the decision in Capitol v. Foster (I strongly recommend that you read the WHOLE article):

For the Cynics, an Antidote: The Order in Capitol v. Foster

Dated:Thursday, February 08 2007 @ 04:57 AM EST

I gather from comments on the last article that some among you are not yet convinced that anything close to justice can ever happen in a courtroom. Well, dear SCO-wounded cynics, this is for you, an order signed on February 6 by Judge Lee West, a US District Judge in the Western District of Oklahoma, in the case of Capitol v. Foster . It should help you to see that while the courts may be slow, they can get there.

This order has to do with a woman who was not rich or powerful. A single mom. She started with no important friends to pull strings for her. What she had was innocence, a willingness to fight to prove it, and an unwillingness to give up and settle with the music industry, thus admitting to something she said she had not done. Indignation can be empowering, like a wave you can ride a long way, indeed. She also had an attorney willing to work, I gather, for maybe next to nothing, if necessary, Marilyn Barringer-Thomson.

As a result, the music industry, which has been suing the poor and powerless -- some believe so as to build a body of one-sided case law around US Copyright Law -- has been told where the line in the sand is. The plaintiffs who massed against this defendant -- Capitol Records, UMG Recordings, Maverick Recording Company, BMG Music, Arista Records, Sony BMG Music Entertainment, and Warner Bros. Records -- have been told they will have to pay a reasonable amount, yet to be determined, of this vindicated defendant's legal fees, because she has been ruled the prevailing party, against all odds.

It's not the money. Or more accurately, it's not just the money, although surely the music industry will now be more careful who they sue, so as to avoid another outcome like this. It's the precedent that really matters. The music industry's attempt to establish that an Internet account holder is responsible for any copyright infringement that occurs using it, whether or not the person knows about it or approves it, has bitten the dust in a courtroom in Oklahoma....

Complete article

Other interesting articles about the decision appear on and Ars Technica

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


AMD FanBoi said...

So at best Debbie Foster breaks even. No compensation for the stress, humiliation, sleepless nights, and worry inflicted upon her for lo these many months. No compensation for all the time she spent dealing with this case.

These things take a toll on your health. While the RIAA was still touting her as one of the 18,000+ criminals caught for the crime of file sharing, all these things were ripping on her body and soul. Any good doctor will tell you these things do shorten your life, and the quality of it. But I see no indication that she will ever be compensated properly for all her misery here.

Not the victory I'd want to win.

Unknown said...

she can of course sue the evil labels for that...

Scott Ferguson said...

The internet is changing every mass media's revenue model, not just the recording industry's. "Pinch" Sulzberger speculated that in five years, he may not even be publishing a paper edition of the New York Times. His response is not to fight it, but to understand the dynamics and change with it, to keep The Times profitable. This strategy reflects wisdom and maturity.

Compare this with the recording industry cartel, whose public face is the RIAA. The driftnet litigation tactics and obnoxious digital rights management ploys are alienating an entire generation of new music consumers. This is not very smart. With all due respect to Ray, attorneys are ill-equipped to define business strategy, because they are trained to think tactically. Even if the cartel wins every case, their business will shrink drastically because their suppliers (recording artists) and consumers (you and I) will quit dealing with them.

The open revolt of consumers against the music cartel is well documented in many places, including this fine blog. What is less public, but equally important, is that talented recording artists are either shunning the major labels, or, like Ben Folds, not taking them seriously:

"I’d come to the conclusion years ago that I wasn’t going to make money by selling records. And that liberates me to feel OK about people downloading stuff freely, because I know they’re just excited about music."

If the companies of the RIAA cartel want to survive, they have to transition to a business model that attracts great recording artists, and that doesn't involve bullying consumers. The only thing that driftnet lawsuits might accomplish is protecting their catalogs of old recordings somewhat. But these recordings, over time, lose their commercial viability. EMI's catalog of Rolling Stones recordings will eventually be worth as little as their Ted Heath catalog. If they can't attract new artists to their stinky business, they're screwed. And they won't attract them if they can't offer them a good living, or if they are known for abusing the artist's fans.

The cartel should take a cue from Sulzberger. If they abandon the record stores, abandon DRM, and focus on primary internet distribution channels, they can remake their businesses into profit powerhouses, restore honor and ethics to their corrupt industry, and get consumers to actually like them, while investing far less capital than they have in manufacturing CDs or the record store supply chain.

But if the cartel lets the lawyers run their industry, their days are numbered. And it's not a very big number, either.