Hung Out To Dry
On the whole, it’s been a quiet week, as people digest the lawsuits of last week.
Last week was a good example of how the media works. It focused intensively on the freakiest cases, a couple local cases, and ignored pretty much everyone else.
It was a good thing to be a sued 12-year-old. Apparently more than enough people offered to help. One computer website even ran a raffle of a computer system to raise money for her.
It was not such a good thing to be anyone else being sued. Remember, not one or two or five people were sued; 261 were.
One New York City college student has a website asking for money, was even interviewed by the New York Times, but has only so far received a fifth of the $2,500 settlement she made.
One of the pioneers who settled for $15,000 almost six months ago has only collected about two-thirds of the settlement.
What is most surprising of all is that the websites formed for the sole purpose of raising hell on this issue barely even whimper on the subject. The most I’ve been able to find is a link in a news story. e
Take this page, for instance. There are hundreds of links to anything and everything even vaguely associated with the issue, but not one for the lawsuitees.
You’d think if they could link to newspapaer gossip columns, they might be able to link to people like those I mentioned above, but nooooooo.
However, this particular place has no problem finding space to sell anti-RIAA thongs. Frankly, given the circumstances under which the target audience is likely to sse the message, I don’t think they’re going to get past the first word. 🙂
Let’s take the one place where they did have a link. There were 294 comments, which yielded one contribution of $8.00.
All talk, no action.
Well, we’re a little bigger than that. We hardly agree with her, but here’s a link to her site. Maybe she’ll get another eight dollars as a result.
The lesson to all this is that if you aren’t prepubescent or a grandpa, or can somehow, some way convince the media that you should be today’s poster child, you’re pretty much on your own to be hung up and left to dry, and your “friends” are going to do very little for you.
Where Does The Money Go?
There’s been some outrage over the disclosure that settlements received under the lawsuit program are retained by the RIAA to fund the program. This is neither terribly surprising in these particular cases nor unreasonable, and here’s why.
The RIAA is mostly funded by the record companies; they pay dues to support the organization’s efforts, including legal expenses. Rather than handing money back to the record companies and have them pay it right back in more dues; the record companies decided it would be easier to let the RIAA hang on to its money, and pay less dues.
Doesn’t that rip off the artist? No, and that’s because of the nature of these lawsuits. The RIAA is not trying to claim any damages for lost revenues. If they did, then they’d have to go song by song and attempt to figure out how many copies were made from each person “sharing.” That would be very difficult to do, might well not be too legal, and even if you could it, would on average lead to neglibile amounts of money. It would cost more to figure out than the damages would be.
Instead, RIAA is suing for only statutory damages. Those are the penalties imposed just for doing it, and within the dollar limitations imposed by law, its sole purpose is to fine you enough for you not to want to do it again. There’s no need to figure out how much actual financial damage was done; that’s a different kind of damages.
It’s like trespassing. If you trespass on someone else’s property, there’s a fine for that. If you damage someone else’s property while you’re trespassing, that’s another issue and another fine. The amounts RIAA is seeking is the first type.
Since the amount recovered in these lawsuits aren’t commerce-related, they aren’t a substitute for royalties, and thus it’s not unreasonable to consider them royalties.
When damages are received that are attributable to economic loss (say someone bootlegging an artist’s album), those damages are returned to the record companies.
I do have to note, though, it’s pretty strange for the people who aren’t paying anybody anything and who are the sole cause of the lawsuits to complain about royalty distribution.
RIAA Sues iMesh
There are lawsuits you are out to win, and then there are lawsuits made to make a point.
RIAA should not at least rationally expect to win against iMesh (or win an appeal against other P2P software companies), based on current law. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) gets in the way.
However, there are Supreme Court cases, and there are Supreme Court cases.
The Supreme Court essentially said the following in Sony:
1) We generally uphold whatever Congress decides is OK or not in the area of copyright; it’s their responsibility.
2) However, because Congress never passed anything covering this area, we look at this and based on the laws as they are today, we say that the producers’ copyright rights are not substantially infringed by the use of VCRs. If Congress doesn’t like this, then let them pass a law saying otherwise.
Some people (including a few who should know better) would have you believe that Sony is based on some ironclad Constitutional principle. It isn’t, not at all.
Congress could pass a law outlawing P2P networks tomorrow, and the courts, including the Supremes, would probably say, “OK.” That’s what the RIAA and Company really wants from these lawsuits. Of course, they wouldn’t mind winning these cases, but if they lose, they can go to Congress and say, “You see? We would much rather shut down the networks like we did Napster, but these court decisions tell us we can only sue 12-year-olds.”
“What would you rather have us do, Congress? Keep suing lots of your constituents, or change the law a little so we can shut down the companies instead?”
Meanwhile, In Europe
. . . things are heating up, as members of the European Union pass legislation meant to implement the European Union Copyright Directive. Germany’s version just went to effect
In Sweden, the government has proposed in its implementation of EUCD to ban P2P altogether.
In both cases, penalties include jail time.
So far, five EU companies have implemented: Austria, Denmark, Germany, Greece and Italy. The others will follow.
Historically, European countries have taken a stricter view of copyright than the United States, so the days of the EU being a relative safe haven for P2Ping are drawing to a close.
Strange U.S. Politics
There was a rather strange hearing by a Senate committee the other day.
Well, it wasn’t so strange if you had a campaign contribution scorecard handy, those getting money from music and movie makers spoke as passionately in favor of them as those getting money from telecommunications companies spoke passionately against them.
On the whole, it was a bunch of posturing and silly proposed laws. Both sides waved the threat of pornographers and pedophiles at each other.
That wasn’t the strange part.
The strange part is which party was doing a particular type of posturing.
The Democrats are siding with the content providers because the entertainment community has long been a source of Democratic, and especially liberal Democratic funding. Unfortunately for the Democrats, the P2Pers demographically tend to be Democrats, too.
The Republicans, on the other hand, are rather torn on the issue. Normally, the Republicans are the party most likely to defend personal property rights, and with no other factors in play, they’d probably go that way.
However, there are relative libertarians in the Republican party who do not much like the poking and probing going on.
More to the point, the political tacticians and staff (who often are quite younger than the legislators) are saying, “Why should we bail out our political enemies? We ought to take the youngster’s side on this issue this election. Maybe we’ll get some votes we’d normally wouldn’t get, and send a message to Hollywood that they ought to be more evenhanded in those contributions they make.
To add to it all, it really doesn’t seem like anybody in Congress, no matter what side, really knows what he or she is talking about.
Take all of this together with a big Presidential year next year, and it is very unlikely we’re going to see decisive action on P2Ping the rest of this year or next.
The only area where you might see a legislative change is in the subpoena provisions of the DMCA. In all likelihood, any change would require those seeking the subpoenas to provide more information than is currently required, and perhaps make more explicit in the law itself the rights of the subpoenaed to challenge it (which they can perfectly well do now, but it will make some civil libertarians feel better).
Nor would it be surprising if the RIAA and Company were discreetly told to lower the profile on future lawsuits so as not to be so public and in-your-face about it.
The Hard Choices
From the New York Times (free registration required):
Mitch Bainwol, the new chairman of the Recording Industry Association of America, which brought the suits, said in an interview that the group had succeeded in communicating that file sharing is illegal and would have consequences. But he acknowledged that shifting attitudes would be the next battle in what he conceded was more an effort to contain file swapping than to wipe it out.
“It’s a two-step process,” he said. “I don’t think anyone has an expectation that file-sharing becomes extinct. What we’re trying to drive for is an environment in which legitimate online music can flourish.”
The record industry argues that sharing songs online is just like stealing a CD from a record store. But to many Americans, file sharing seems more like taping a song off a radio.
From the other side in the same article:
Siva Vaidhyanathan , director of communications studies at New York University, said he told his students that distaste for record company practices was not a justification for making unauthorized copies of their music.
“If everyone would cool down the rhetoric we might actually have some helpful discussions,” Professor Vaidhyanathan said.
“It would be nice to stop demonizing people who think they’re doing reasonable legitimate things in their homes and stop demonizing people who are trying to make a living and recoup an investment,” he added.
Society, Mr. Vaidhyanathan added, has to reconcile the desire to make personal copies with the new ability to make millions of perfect copies with the click of a mouse. “Suddenly we have this powerful copying technology in our own homes, and we haven’t confronted exactly what it means.”
Both are right.
If you look at discussions of this issue, it reminds you of Kipling’s story of the blind men trying to describe the elephant. People see just what they want to see, and nothing else.
It doesn’t matter who it is, that’s the case. Some are less blind, some are more blind, but nobody can see straight on this one.
Throw out all the BS and the differences that really aren’t important in the long run, and all this boils down to a single question:
Should cyberspace be subject to society’s rules?
That is the real dividing line.
The issue really isn’t MP3s. One could rationally say, “OK, MP3s are a type of radio, make that an exception to the general rule. RIAA and Company, you go sell higher-quality stuff.” But that presumes you can keep people to just MP3s, and you can police whatever venue this is happening.”
For something like porn, one could rationally say, “OK, if you want to put amateur porn on, fine, provided there’s at least the same kind of speed bumps there are elsewhere to keep kids from it.” But again, that presumes a certain level of control.
I don’t think it can work. Why? Many, likely most of those reading this could live within a few rules like these. When push comes to shove, you’re not the real problem.
It’s the remainder who are. It’s the remainder who will ruin it for the rest.
It will be the (relatively few, at least consciously) anarchists and communists and (relatively more) narcissists and solipsists and criminalists and most of all freeloading losers who’ll ruin it, simply because they don’t want different rules; they want no rules.
Let’s call them, as different as they are from each other, the wilders.
Is much, maybe most of this, a simple matter of immature teen rebelliousness? Sure. But kids can do adult damage on the Internet, and as virus writers have shown us, it doesn’t take most or even many to wreak havoc.
What you have no rules, the most unstable and deviant rule. Should we let the more unstable elements of our society effectively rule in an increasingly important area of our lives?
Should whole industries get wrecked because some dumb and/or immature and/or deviant souls determine that everything should be free in cyberspace? Forget today’s MP3s, that’s child’s play, the tip of the iceberg, compared to what we’ll see in the future as technological capabilities increase.
There is very often a juvenile quality to most of the pro-P2Ping arguments, most commonly a refusal to acknowledge even the most basic and obvious facts when they happen to be inconvenient. Rational discussion or even dialogue is often impossible.
Here’s one real example of this:
Reader: You WANT to see the RIAA take down those 60 million Americans, because they’re getting stuff for free, and you aren’t. . . .
A respect for the law is not fueling your drive to stop copyright violations, jealousy is. Pure, plain, and simple.
Ed: Dead wrong. I hardly listen to music these days at all, so why would I be jealous? Why don’t you try the notion that the reasons why I believe what I believe are the reasons I give?
Reader: I was absolutely right. Jealousy does fuel your hatred for P2Pers.
What can you say to someone who won’t listen?
Is the answer, “let them do whatever they want?”
My position during this whole debate hasn’t been that that the current rules are great. No, it’s been that there ought to be rules, period.
Those rules should be based in seriously considered law, not by a collective temper tantrum or virtual mob rule, not by some grotesquely enlarged mutated peer pressure, and not by economic and legal illiteracy.
The RIAA and Company probably would like to keep the status quo. That’s ridiculous. In the long run, that cannot happen. Digital distribution will inevitably revolutionize the business.
Those who oppose them basically want anarchy. That’s even more ridiculous.
If you force me to choose between greed and anarchy, I’m going to choose the first every single time, simply because greed does less damage.
But I wouldn’t be happy with that choice. Something better can be found somewhere between the two extremes.
When push comes to shove, the RIAA will bend. The majority of P2Pers will bend, too. Believe it or not, these two groups are on the same side of the key question, the ultimate issue.
The wilders won’t.
That’s the problem facing legislatures throughout the world. And so far, they seem clueless as to what they’re dealing with.