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Sometimes, people let their feelings triumph over the facts. Such is the case over this article (and most of the other article on the subject in the computer hardware press) entitled, “Judge orders RIAA to justify its piracy charges”

The first paragraph illustrates the problem:

“A US COURT is forcing the Recording Industry of America to explain why it charges people it catches pirating $750 a single rather than the 70 cents they flog them to retailers for.”

When I saw that, I said to myself, “If that’s actually the case (which I greatly doubted), this is an extraordinarily stupid judge. The RIAA seeks a $750 penalty per instance because that’s the absolute minimum they can seek under the law. They aren’t seeking $750 a pop because they’re being exceptionally mean; they can’t ask for anything less. If they were really out to be mean, they could seek up to $150,000 a pop.

Indeed, the RIAA often deliberately reduces the penalty that they seek by only taking some of the instances of file-sharing to court, rather than the 500 or 1,000 or more they could have taken, and that is in fact the case in this case.

I went to see what the judge really did, and of course, he didn’t do what the article said he did. What the lawyers for the defendant decided to do was add a constitutional argument to their overall case.

They are arguing that the $750 minimum penalty for a single instance of filesharing is so excessive for the action committed that it violates the Due Process clause of the U.S. Constitution, and they want this argument to be considered in the upcoming trial. To put it more simply, the penalty needs to more or less fit the crime, you can’t hang somebody for jaywalking.

This is a new argument, but not an outrageous one; there are arguments for and against it. It is true that the U.S. penalties for copyright violation were set in 1976, and were intended for commercial copyright violations.

No one who wrote the law at that time envisioned that one day, teenagers could put thousands of songs on offer to the world for essentially nothing. Unfortunately, those who write the laws at this time have not revisited this in the age where teenagers can put thousands of songs on offer to the world for essentially nothing.

But this is ultimately a problem with the law, not the RIAA. Ultimately, it will be the U.S. government who will end up arguing the point, not the RIAA.

The RIAA also has the perfect right to tell the judge why they don’t believe the defendant’s new constitutional argument holds any water, and they did just that.

However, all this is about whether or not the judge should consider the matter, not whether the defendant’s argument is likely to win or not after he’s heard the case. The judge essentially said, “As long as the claim isn’t flat out frivolous, I’m supposed to consider it. Since there are no previous court cases that flat out slamdunks the arguments being made, this is a new argument that deserves its day in court, and I’m going to give it that day.”

That’s all.

I don’t know what the judge, or more imporantly, the appeal courts will say about this, no doubt this will take a couple years to resolve.

However, the real problem isn’t the RIAA being evil and mean, or even journalists who either can’t read a court case, or don’t care what such things say, preferring to pander to their audiences.

The real problem is that legislators, both in the U.S. and elsewhere, need to revisit copyright law, and do their job by adjusting it to the current age: to both change the law, and make sure it gets enforced.

Ed


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