Know Your Rights: Why is copyright law so screwed up?
By Nilay Patel 
posted October 5th 2007 6:53PM
posted October 5th 2007 6:53PM
Know Your Rights is Engadget's new technology law series, written by our own totally punk copyright attorney Nilay Patel. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world. Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.
What on earth is going on with that $222,000 RIAA judgment against that poor woman in Minnesota? Is the system really that broken?
Why do you always ask questions that you know will have answers that you don't like?
Come on -- almost a quarter-million dollars for sharing 24 songs on Kazaa? No one even uses that anymore.
Well, the truth is that the system isn't broken at all, really -- it's working exactly as it was designed. Under the rules in place now, anyone who willfully infringes a copyright is on the hook for at least $750 and a max of $150,000 per infringement. Since each song you share is a unique copyrighted work, that means you get hit with that penalty for every track in your shared folder. This obviously lead to some strange hypothetical results -- sharing that copy of "Wave of Mutilation" triggers the exact same legal mechanisms as sharing all of, say, OS X or Vista, since those are considered single copyrighted works, but that's how we determine damages in our system.
Well, so why were the damages so ridiculous in this case?
A range from $750 to $150,000 is pretty huge, and we may never know exactly why the jury in the Jammie Thomas case settled on $9,250 per infringement as their number -- and most observers seem to agree that it's a figure that is out of proportion with whatever harm she may have caused the labels. There is also no conclusive evidence that damages of this size have done anything to halt the growth of P2P file-sharing.
The real problem that's being brought to light is that our system doesn't always keep pace with the rapid changes in technology. Every system has flaws, and it's incredibly unlikely that lawmakers, of all people, will be able to draft legislation forward-looking enough to avoid similar breakdowns in the future.
So why even bother? If we can't get it right, why even try to impose all these limitations? It just seems to lead to things like DRM.
What you're asking is more of a philosophical question than a legal one -- what law students will recognize as a "policy question." The copyright system is designed to reward creation and penalize unauthorized copying -- which is exactly why those fines for willful infringement are so high. If you were an author and someone straight-up copied your work and re-distributed it, wouldn't you go after them for as much as you could? Just look at the way we react to less-obvious copying situations, like those Apple ads that seem to lift a little more than they should.
Now, if you copy something in a non-willful way, the copyright owner has to show how much they were damaged and how, so we don't drop the hammer as hard on that kind of copying -- and the judge can reduce those statutory damages pretty drastically if you prove that you didn't know you were infringing. But the main idea -- straight from the Constitution -- is that the copyright system should promote the "useful arts" by giving authors the exclusive rights to profit from their works.
Whatever, I'm an coder and I license everything I write with an open-source license, so how on earth does this broke-ass system help me?
Because open-source licenses like the GPL and Creative Commons wouldn't be able to exist without strong copyright law to back them up.
How does that work? I thought they were all viral and subversive and damn the man! Talk hard!
Calm down, Harry. While open-source licenses are incredibly innovative ways of turning copyright law inside-out, they still depend on the existence of copyright to make all those sexy viral provisions stick. That's all a license is, after all -- a set of conditions under which an author lets you use his / her work. If you don't own anything, how can you enforce your rules? The reason why open-source licenses have power is because anyone who breaks them is liable for -- you guessed it -- regular, old-fashioned copyright infringement, and all the penalties that come with it.
So you're basically saying that there are parts of the system that are a little out-of-date when applied to the modern tech landscape, but that overall things aren't as bad as they seem?
Exactly.
This was so much easier when I just got to flame away about how broken everything was.
Don't worry, you can still do that. We won't tell anyone.
Thanks.
No problem, Mr. Emo Pants. Just try not to get your guyliner all over everything like last time.
What on earth is going on with that $222,000 RIAA judgment against that poor woman in Minnesota? Is the system really that broken?
Why do you always ask questions that you know will have answers that you don't like?
Come on -- almost a quarter-million dollars for sharing 24 songs on Kazaa? No one even uses that anymore.
Well, the truth is that the system isn't broken at all, really -- it's working exactly as it was designed. Under the rules in place now, anyone who willfully infringes a copyright is on the hook for at least $750 and a max of $150,000 per infringement. Since each song you share is a unique copyrighted work, that means you get hit with that penalty for every track in your shared folder. This obviously lead to some strange hypothetical results -- sharing that copy of "Wave of Mutilation" triggers the exact same legal mechanisms as sharing all of, say, OS X or Vista, since those are considered single copyrighted works, but that's how we determine damages in our system.
Well, so why were the damages so ridiculous in this case?
A range from $750 to $150,000 is pretty huge, and we may never know exactly why the jury in the Jammie Thomas case settled on $9,250 per infringement as their number -- and most observers seem to agree that it's a figure that is out of proportion with whatever harm she may have caused the labels. There is also no conclusive evidence that damages of this size have done anything to halt the growth of P2P file-sharing.
The real problem that's being brought to light is that our system doesn't always keep pace with the rapid changes in technology. Every system has flaws, and it's incredibly unlikely that lawmakers, of all people, will be able to draft legislation forward-looking enough to avoid similar breakdowns in the future.
So why even bother? If we can't get it right, why even try to impose all these limitations? It just seems to lead to things like DRM.
What you're asking is more of a philosophical question than a legal one -- what law students will recognize as a "policy question." The copyright system is designed to reward creation and penalize unauthorized copying -- which is exactly why those fines for willful infringement are so high. If you were an author and someone straight-up copied your work and re-distributed it, wouldn't you go after them for as much as you could? Just look at the way we react to less-obvious copying situations, like those Apple ads that seem to lift a little more than they should.
Now, if you copy something in a non-willful way, the copyright owner has to show how much they were damaged and how, so we don't drop the hammer as hard on that kind of copying -- and the judge can reduce those statutory damages pretty drastically if you prove that you didn't know you were infringing. But the main idea -- straight from the Constitution -- is that the copyright system should promote the "useful arts" by giving authors the exclusive rights to profit from their works.
Whatever, I'm an coder and I license everything I write with an open-source license, so how on earth does this broke-ass system help me?
Because open-source licenses like the GPL and Creative Commons wouldn't be able to exist without strong copyright law to back them up.
How does that work? I thought they were all viral and subversive and damn the man! Talk hard!
Calm down, Harry. While open-source licenses are incredibly innovative ways of turning copyright law inside-out, they still depend on the existence of copyright to make all those sexy viral provisions stick. That's all a license is, after all -- a set of conditions under which an author lets you use his / her work. If you don't own anything, how can you enforce your rules? The reason why open-source licenses have power is because anyone who breaks them is liable for -- you guessed it -- regular, old-fashioned copyright infringement, and all the penalties that come with it.
So you're basically saying that there are parts of the system that are a little out-of-date when applied to the modern tech landscape, but that overall things aren't as bad as they seem?
Exactly.
This was so much easier when I just got to flame away about how broken everything was.
Don't worry, you can still do that. We won't tell anyone.
Thanks.
No problem, Mr. Emo Pants. Just try not to get your guyliner all over everything like last time.
I like the fundraiser idea. It would be a way to fight back and would be totally legal. :D
I have a 12" notebook without a cd/dvd drive and a big dvd collection. I recently downloaded my a few of my favorite (owned) dvd's as avis over a torrent so i can watch them on my notebook. Once the files were downloaded i took them off the torrent so i wouldn't share them with others.
Is this legal?
AFAIK (and IANAL)...no. The MPAA doesn't even think RIPPING your DVDs to your notebook should be legal even though it is technically within the scope of fair use.
The argument is in follow (I paraphrase):
Once upon a time, there was a land of magic and rainbows. In this land, everyone paid for the property and all was well. But under the surface in this mystical, happy place there were dissenters - 9,250 of them to be precise. These dissenters, these vermin, wanted to get their slimy, rodent-like hands on the property of the kind, benevolent music moguls without paying, but were unable to do so because there was no way they could each get any of it without paying. Then one day, in this land of unicorns and leprechauns, a vile temptress, more beast than woman, came along and copied twenty four (more than two tens!) songs and maliciously did distribute them to those 9,250 dissenters. Through market forces, it was determined the value of each track was a dollar, and they had lost 9,250 dollars per track distributed! This temptress, this bride of satan, must be punished!
An alternate theory, for those who want to know why 9,250 was chosen is that 9*2+5+0 = 23. If you get the reference, good for you.
*is as follows
damnit.
"Intellectual property" is not property and copyright is not a right.
"IP" is a agglomeration of 4 independent and totally different concepts: copyright, patents, trademarks and trade secrets. All of them are just packets of information that society has decided to treat specially for its own good. None of them is a fundamental right and any of them can be taken away by the society at any time, if it is clear that these concepts outlived their purposes. For the first two: copyright and patents, such end seems to be nearing very fast.
Why do I feel so 1984ish when people talk about property that is not property and about a right that is in fact not a right?
Wave of Mutilation!
love the pixies.!!
DEATH TO THE PIXIES!
I'm constantly amazed at how the mob on the street has a total disregard for the property rights of those people who CREATED the value that they claim to have a right to steal, unearned.
I know this post will be unpopular here among the mob, but what good is a society in which people have a right to eat each other's products without compensation. What good is a society of leeches who smashes and grabs what they like without consideration for the people who produced the values or the people who bought those values?
Of course, the RIAA creates inconvenient barriers to free-trade sometimes (trade being a payment for value), but why do people rarely scoff at the bootleggers and parasites who "distribute" these values without payment to the producers?
Be careful of what you endorse.
I pay for all my music, an anomaly in my generation (21 year old).
That said, the punishment does NOT fit the crime, here. It's important to ask rather this woman caused over 200k in damages for the RIAA.
While I agree justice should be blind, this is a tragedy. If the RIAA goes through with this, artists would be wise to protest / boycott the RIAA.
As Brian has stated: you have a valid argument but she did not create over $200k in damage! Personally I perfer to buy small label or no label music as it is usually cheaper and just sounds better these days.
Wrong.
Some of us have taken a deeper look at copyright and the environment in which it exists. We've found the idea that copyright is property to be sorely lacking, and indeed nothing more than propaganda. We are not thieves, but people who want to return to the original, healthy balance that once existed in copyright.
I like the assasination idea.
I don't understand this whole case. I thought the copyright was owned by the writers and performers of the music, not the distributors. How can the distributors sue for copyright infringement?
The artist doesn't own the copyright. That's one of the problems with the system. When an artist signs a record contract with a label, that label owns EVERYTHING that artist chooses to release on that label, and the artist is required to release a certain amount of music through the label. It's all about money. Nobody gives a shiat about the music anymore, it's all about how many billable events they can get you to endorse.
You bought the album on DAT (cassette)? $10. You want the album on CD? $15 You want the AAC file (damn sure we're not going to give you an unencrypted MP3!)? $1 per song. You want to transfer your CD to MP3? sorry, you'll have to buy the AAC file.
If I read in tomorrow morning's newspaper that this woman had walked into the RIAA office and killed 137 people, the biggest news to me would be the fact that I didn't get cream cheese with my bagel.
Once contracted the original artist only owns a portion of the rights to the work, and that varies from contract to contract. Since the distributer spent the capital investment in creating the work it would SEEM fair but they become over zealous about prosecuting infringement. I don't have a problem with them gaining compensation but amounts like that are ridiculous. This is also why so many bands are going 'independent' by creating their own record label or signing on with a record label created by musicians.
We all benefit from file sharing so let´s share the burden. She should install a website, so that people can donor. The file sharing networks could be an impressive tool to rival the music industries financial power, too! So let´s unite and donor to the victims of the RIAA. They are the only ones who deserve the title "victim".
there are two types of legal professionals - those who know *how* and those why know *why it can't be done*. you're obviously the latter, shitty, kind.
just wat to say. I am so glad I dont live in the USA.
I find it really amazing how we will make sure a song will get paid for but a person that has been violated or killed or a government that may infringe on human rights will not be help accountable but a song and a movie well that is important.......
I am a musician. Also, my band is putting out a CD in January 2008. We will have spent a total of $8,000 putting it all together. ...and paid for it all ourselves. If you ask me for a burn of my album, I will punch you in the face. It isn't about money, but it is about making a living. If I can't afford to be a musician because nobody is willing to pay for music, I have no incentive to continue to produce it. So my tight-wad friends, don't forget to feel guilty for stealing my or anybody else's music. ...but I (probably) won't come after you if you do.
I understand, respect, and support your opinion, when music is your bread and butter, you really don't like the fact that there are people out there who are trying to get it for free. That said, I would like to pose a counterpoint:
I've known a large number of bands, most of them fitting into the category of "starving artist" more than you would believe. These guys bum rides to gigs, borrow each other's equipment to play, do shows for gas money, and live off of bread sandwiches and handouts. They live and die by their music. I've been to their shows and bought them groceries. They know that an audience is what it takes to make it, and so they do what it takes to get their music out there. They release songs on p2p networks, they record demos for any nightclub owner that asks for one, they freely give their music out to those who want it because they know that when the time comes for them to make a name for themselves, their money will come from those people who were there when they were nothing.
Sure, one could make the point that they are struggling *because* they give their music out freely, but they do make an effort to get some compensation for their music, their ID3 tags have their homepages, their CD's also have their mailing addresses, they tell their audience that if they like what they hear, to consider supporting the band in some way. A couple bands have actually gone the same route as you and paid to have an album cut, and they cringe every time they talk about how much it cost.
By the way, since I am the type to support these bands in one way or another, I would like to go ahead and plug Army of Darkness and Duckfood, both some very cool Inland Empire Death/Punk/Metal/Ska influenced bands. Here are their respective MySpaces with some sample clips:
Duckfood - http://profile.myspace.com/index.cfm?fuseaction=user.viewprofile&friendid=178113382
Army of Darkness -
http://profile.myspace.com/index.cfm?fuseaction=user.viewprofile&friendid=11166734
Then you are dumb and have been brainwashed by the music industry.
If you are a good musician, then an album is just a promotional material. You should earn you money by real work, like concerts and appearances. Selling albums, merchandise and other swag at such events is just a side income and convenience for the fans.
If you can not earn your living from concerts and other live events, then your are simply not good enough. And if you are not good enough, then you do not deserve to be paid - go get a job where you are good at.
Wow, Aigarius, you're really not in touch with what is FAIR or the INDUSTRY. (And don't give me the "life is not fair" thing.)
So, you have decided that my album is free for you to use? The music I (not you) have created? It's people like you that treat everything as if you have some RIGHT to it. You probably sneak into shows without paying cover, too. ...and expect your friends to buy you drinks. ...that is if you're not just some 12-year-old kid typing on his dad's computer.
I, Aigarius, am not dumb. And I have not been brainwashed. I know plenty of GREAT musicians who are "starving." It isn't all about how good you are as a musician. It's about how well you PERFORM, PROMOTE and ORGANIZE your BUSINESS.
That being said, I have other recordings that I use for "promotion." I have even already given away some of my newest recorded music out for promotion.. --and with great successes. And for the record, I definitely do not suck. (but I'm not saying I'm Jimmy Paige or anything)
Now, to my main point:
An album is not "just promotional material." It is a work of ART. Do you understand that? It is the final product of an artist! --an accomplishment! It is something to be proud of.
The idea isn't only about making a living, it's about principal. ...especially at a "smaller" level, when it all comes down to somebody in the music industry getting screwed, it's always the musician. I'm not just giving you a sob story... It is truth. I have worked in every facet of the industry from studios, to A&R, to Radio Promotion, and everybody in his suit is trying to make money off of the musician/band. The difference is now, even the fans have a way of taking money out of the musician's pockets. Musicians have to be smart to avoid all of the "leeches" out there.
At a much bigger level, it is still the musicians getting screwed indirectly. Sure, major labels are taking the first hit financially because they aren't selling CDs anymore. ...so where are the labels going to make their money? Oh yeah, the concerts and T-shirts.
I'm not completely guilt-free, though. And I understand the industry is changing. (I love my iPod) But there are some legit. channels to getting free music such as sites like archive.org.
The girl who lost in court for downloading music did get screwed, too. She did break the law, but the punishment doesn't fit the crime. $9K per song is too much. They should have just charged her court fees, and double what the song is "worth," and maybe made her do "community service" like promote for a band for a year.
-JimT
That's why I don't buy, share or listen to music. If I need to hear a good song I hum one in my head...
I'm sorry, but I have to ask... Is "guyliner" what I think it is? 'Cause if it is, thats awesomely funny... But it just seems a little too... Eh, disgusting?
How about this one.
What if I were to download TV shows from the internet, tv shows of which I can get from my cable TV. It would be exactly like using a TiVo, but making somebody else do my work... is this legal? I do understand that it is sketchy, but I would like to watch my tv shows whenever I want.
Also, what the heck is up with TV advertisements? Why do I get advertisements on something I freakin' pay for... especially watch a good show for about 6-8 minutes, then see commercials for 2-6 minutes... that's so much crap... which is why I ordered myself a TV tuner for my PC. =)
You're totally safe here. It's not like you're making copies for all of your friends. ...or making copies and selling them. You should be able to choose how you watch the programming you pay for. You are paying for that cable TV, aren't you?
However, don't be silly. Commercials are how the whole thing is paid for. What you pay for your subscription is quite minimal in comparison. If advertisers start seeing less value in TV, they'll put less money into it... therefore the programming will probably have lower and lower budgets. All that equals shitty TV. Just hit mute during the commercials and practice your guitar for 5 minutes.
-JimT
I think it's easy for people to overlook the fact that music is HARD TO CREATE and that it doesn't magically appear out of the air...because in the age of wifi/p2p... it feels like it does. It's not such a stretch to recognize that finding a painting and taking pictures of it, 1-1 scale, and, not only taking it for oneself, but to leave a stack of copies of that painting out for anyone to take is flat out stealing from the artist, in spite of not physically taking the painting itself.
Creating music is a difficult and expensive process, and illegally downloading music from a band takes money out of their pockets (even though the labels own the masters - the money not earned from an album sale is money not recouped and then directly taken from the artist themselves).
Yes, it seems like it would be a great way to promote a band. But if you're album sales are taken away, what do you have left...ticket sales? Like a venue would just let a band play there for free? Or swag sales? The "side item" revenue of this sort of thing just doesn't support an artist, and pay for its own production at the same time.
If you get an album for free, somebody has to pay for it... one of those somebodies being the artist.
Music is the product of a great deal of labor and sacrifice. Why would anyone want to compound that by taking without permission or compensation that product from an artist that they appreciate enough to want their music to begin with...in otherwords... it feels like stealing to the artist. Why would someone steal from someone they liked?
Does a quarter of a million dollars match the crime? eh...probably not. But its not as though she were ignorant of the act being a crime, nor was she ignorant of the stated consequences. She just did it thinking that she wouldn't get caught. Now that she has been caught, she's going to have to deal with the punishment. The RIAA went after her knowing full well that she can't afford these damages. The RIAA/MPAA probably spent a great deal of money that they won't get back on a judgment that is only a piece of paper - and not, to my understanding - bankruptcy-proof. Suing is a lose-lose situation.
She probably had a number of letters sent to her trying to get her to quit doing it, including some that would have generous uses of the words "cease" and "desist."
But the message to community is real. And its loud and clear. Stealing is not worth it. Property is property, intellectual or otherwise.
No, the system is absolutely, definitively, undeniably broken. Copyright was designed to spur the commerce of creativity by allowing those who put the work in, to recoup their investment. It was not designed as a license to print money, as a property to be seeded (inherited) through generations, or to be under corporate control.
Copyright law should last 20 years. The system is broken.
For the last four years, The Beatles didn't perform live. They never took in any money from concerts. Are you saying that they weren't "good enough" because instead of spending incredible amounts of time away from home, sleeping in busses, they made records called Sgt. Pepper's Lonely Hearts Club Band, The Beatles, Abbey Road?
After the band broke up, the four didn't do much touring. John would play the occasional benefit, and George organised Concert For Bangladesh. Paul toured with Wings, until John died. It wasn't until the 90s, really, that Paul and Ringo started touring heavily.
Are you arguing that the four musicians that thousands of people consider the greatest rock band ever weren't "good enough?"