A Silly Argument . . .

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The case of Capitol v. Thomas is going to be appealed.

On what grounds? Let me allow Ms. Thomas to tell us what her attorney told her:

“He explained how we’re going to take the RIAA’s theory of making available and appeal it. He also explained how if we win, this would stop the RIAA dead in their tracks!!!”

That’s nice, but there’s one small problem with that. The people working for the RIAA just didn’t go on Kazaa and note how many songs were in her shared folder. They also downloaded a number of files from her.

So even if an appeals court said, “Just proving that these files were available isn’t enough, you have to show they were actually downloaded,” Ms. Thomas is still dead because the RIAA can prove that files were downloaded from her folder.

All that would mean for future cases is that the RIAA will need to download some files for each case. That will be more time, more expense than just a Kazaa scan, but it certainly won’t stop them “dead in their tracks.”

No, Ms. Thomas’ attorney didn’t overlook that point, as Ms. Thomas tells us:

“. . . if we can win this appeal, they would actually have to prove a file was shared and by someone other than their own licensed agent.”

Whoa! If someone steals from you, any (otherwise legally permissible) evidence you come up with to prove that doesn’t count?

ROTFLMAO!!!

Let’s say some people started taking all the current Anandtech articles, reformat them, and put them on their website as their own. The Anandtech people find out about this, and just to make sure all the legal requirements are met, hire some company to copy the guilty files and properly document the infringements for court.

Can you imagine some court, any court saying, “No, you can’t submit this as evidence?” Well, that’s exactly what Ms. Thomas’ attorney wants. Ridiculous, isn’t it?

No, what the RIAA did was not entrapment. Entrapment occurs when agents of the government induce you to commit a crime. The RIAA and Company aren’t the police, and there was no inducement by the RIAA to get Ms. Thomas to put those files in that Kazaa folder.

But for those doing the same thing with a J.D from TV, this sounds like entrapment, and if your goal is propaganda to those masses rather than a serious legal case, that’s all you need.

This is just a silly argument.

What I think is a better argument is the one that claims that the statutory damages allowable under current law can be so out of proportion to the actual economic damage caused by this practice that they’re unconstitutional.

Under current law,
the plaintiff has a choice in these kinds of cases: seek a judgment based on the actual economic damages caused by the infringement, or accept a dollar range (normally $750-$30,000) per infringement. This provision was first enacted back in 1976 (with the dollar amounts periodically revised upward over time, originally it was $250-$10,000). It was enacted long, long before the situation we have today, and was originally intended for commercial infringement.

While I don’t think this argument will win (courts heavily defer to Congress in copyright law), it’s at least a reasonable argument, and even if it eventually loses, is far more likely to have a court say, “Hey, Congress, you need to update your laws,” much as they did in Sony.

What’s really needed, of course, is for the U.S. Congress to get some cojones and write a 21st century copyright law.

Ed


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Discussion
  1. Music and movies can't possibly be held under any sort of ownership laws since they are by nature public domain.
    All this illegal music, hasn't it been played on the radio millions of times worldwide? Movies and TV series have been aired on TV all over the world. How can anyone still claim ownership?
    If a song has been played on radio, it is public domain, you can freely record it under fair usage laws. How you got your copy of the song is irelevant, the only thing that is relevant is that there are perfectly legal methods for aquiring the song without paying anyone anything. How can possessing said song then be illegal?
    AFAIK they are going after radios now, honestly it's not different than 20 years ago you called the radio asked your song and recorded it, and no artist starved now it costs 220K for you if you do it by todays tech.
    Kuroimaho
    AFAIK they are going after radios now, honestly it's not different than 20 years ago you called the radio asked your song and recorded it, and no artist starved now it costs 220K for you if you do it by todays tech.

    I agree, nobody cared when we were dubbing tapes, now that we can make high quality copies suddenly the industry cares.
    Kuroimaho
    AFAIK they are going after radios now, honestly it's not different than 20 years ago you called the radio asked your song and recorded it, and no artist starved now it costs 220K for you if you do it by todays tech.

    No artists have starved at all.
    Things you never hear in the music industry:
    1. Sorry fans, we love the rock and roll thing, but there's just no money in it anymore.
    2. Did you read the headlines? Kid Rock starved to death... yep, piracy. Terrible thing. I just saw Usher holding a cardboard sign on the freeway overpass... I gave him a buck because I felt sorry for him.
    It's a giant NON-ISSUE. Piracy does exist of course... in China. But in the States large bootlegging operations are largely non-existant. The so called 'criminals' are students for the most part. The RIAA touts "Lost sales" as though the student really would have shelled out 18.99 per album to get the one good song...
    The music industry has actively positioned itself as the mortal enemy of it's customers, and now whines that it's losing marketshare.
    The RIAA has done for music what Jonestown did for Koolaid.