Saturday, October 13, 2007

Thoughtful Article in Huffington Post on Possible Ramifications of Capitol v. Thomas

A thoughtful article by Shelly Palmer on the possible ramifications of the RIAA's win in The Huffington Post:

Shelly Palmer:
If the RIAA Wins, You Really Lose!

Posted October 12, 2007 | 11:15 AM (EST)

Last week the RIAA won its lawsuit against Jamie Thomas, a Minnesota woman who put 24 songs in her Kazaa shared folder. The judgment, now being appealed, was for $222,000 ($9,250 per song). It's a big number, and because it's so big, it is excellent fodder for sensationalists on both sides of the issue.

The dust has settled a bit, so I thought it would be instructive to think about how the outcome of this case, known as Virgin v. Thomas (Renamed Capital v. Thomas after Virgin withdrew from the case) might affect the owners and consumers of digital content in the near future.


.........Jury Instruction 15 said, "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown."

This notion of "making available" is a position the RIAA has taken before, but it is not part of the existing copyright law. In fact, upon reading the text, you will notice that the notion simply isn't there. Let's have a look at the relevant part of the federal copyright law:

17 USC 106: The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

You really don't need to be a lawyer to read and understand that items one and three are pertinent to this case. Thomas put some songs in her "shared folder," if nobody downloaded them, how can she be responsible for "reproduction" or "distribution?"

For me, the story gets scary if "making available" becomes actionable or illegal. Here's why.

There is no legal difference between putting a song in my P2P Network shared folder or in my public FTP folder or in my "documents" folder. If the content is stored on a personal computer that is connected to the public Internet and I have not properly configured my security settings, the content in any directory (possibly my entire hard drive) might be "made available" to the public.


Can you imagine how some companies might abuse the power of the copyright law to torture absolutely innocent computer illiterates? If this "making available" decision stands, not knowing how to configure your firewall or not setting a password for your home WiFi network might get you hit with a $222,000 penalty from the RIAA. This feels unfair in the extreme -- but it's the logical outcome if the RIAA ultimately prevails in this case.

I would urge you to get into this discussion. Intellectual property is a significant store of economic value, and content owners need and deserve the best protection we can give them. But we also need to be mindful of fact that the public Internet is an open network with hundreds of millions of computers attached to it. And, to state the obvious, the vast majority of them are not secure. This situation won't change unless you personally get involved. Please contact your elected officials and tell them where you stand on the issues. We elect them and they make (and change) our laws -- but they can only do that if they hear from you!

Complete article

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

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