Know Your Rights: Why is copyright law so screwed up?

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.

[mushrooshi @ Oct 5th 2007 7:02PM]

lol, antiemo.

Off topic, I found ot how to write in japanese on my macbook! はじみまして！

[StreetStealth @ Oct 5th 2007 11:27PM]

バカです。

[pinchies @ Oct 7th 2007 6:58AM]

Wow, i just discovered i have japanese fonts installed! Thanks!

[John @ Oct 6th 2007 2:26AM]

I feel for this lady, but let's be honest here. KaZaA doesn't just magically show up on somebody's computer without their knowledge. Furthermore, 24 copywrited songs don't download themselves. Sure, the kids could've done it (or the pesky neighbors, or the cat), but it was her responsibility to keep an eye on what they were doing. Also, what most people forget is this lady more-than-likely could've settled out of court for a fraction of what she's stuck with now, but chose to fight a losing battle. I hope she appeals this, though, as $220,000 is a ridiculous amount of money for about 2 albums' worth of songs.

[Chird @ Oct 6th 2007 9:10AM]

After appealing and most likely having the verdict overturned, she should countersue to the tune of however much she overspent on all the albums she DID buy. Last I checked a cd isn't worth the same and/or more than a new release special edition DVD. So with a cd costing about 20 bucks from the store and being worth about 4 thats at least a couple hundred dollars depending on the size of her collection...

[Ken Adams @ Oct 5th 2007 7:03PM]

What if (hypothetically), I were to go to the local library and download music? Would there be any way possible at all for me to be sued?

[Rususeruru @ Oct 5th 2007 7:05PM]

if they can figure out who was using the computer at the time yes. on the other hand they could just sue whatever government organization handles your library increasing the costs of that organization and eventually your taxes.

[bhaal @ Oct 6th 2007 12:26AM]

no, they couldn't - there's an immunity given to public libraries for infringements of copyright that take place on their premises provided there's a notice saying this somewhere around; see Title 17 of the United States Code §107 (f) (1)

[Rususeruru @ Oct 6th 2007 12:34PM]

@bhaal feel free to cite the source of your information. To my knowledge the only exemption extended to libraries happens ins § 108 · Limitations on exclusive rights: Reproduction by libraries and archives. That's actually a fair use clause stating any work that is no longer being produced on a current media can be reproduced (ex. old records not being produced on CD may be copied to a CD in an effort for preservation) but this is considerably different from granting exemption for downloading works.

[Rususeruru @ Oct 5th 2007 7:04PM]

Reminds me of trying to explain the difference between how copyright law is written and enforced to my cousin.

[Brian @ Oct 5th 2007 7:04PM]

I understand why the woman is being fined... she broke the law. However, if the RIAA sued me, and took my house, my car, my children's college funds, my retirement, and put my family into poverty, I'd do whatever I could to assassinate members of the board of the RIAA.

If they ruined your life, as well as your family, what would you do?

[steve @ Oct 5th 2007 7:26PM]

your right. I'm just waiting for the day that someone in the RIAA gets killed over this shit. Ruining someone's life to set an example is terrible. Hope they go to Hell for this(in the very serious sense)

[Dave @ Oct 6th 2007 10:11AM]

it's only a matter of time before they really kick someone over the edge and he runs into lawfirms and starts killing people. Then the lawyers can sue the RIAA over losses for "dangerous working conditions".

[iRobot @ Oct 9th 2007 4:35AM]

And if someone does run in to a building shooting a bunch of RIAA lawyers... who's going to cry?

[sombody @ Oct 5th 2007 7:05PM]

emolicious!

[Standingfast @ Oct 5th 2007 7:16PM]

I love this column, keep up the good work! ^_^

[Kyle Kersh @ Oct 5th 2007 7:16PM]

I just ROFL'd .

[carl @ Oct 5th 2007 11:37PM]

eh. doesn't have the same effect as "loled"

[Jeff Lewis @ Oct 5th 2007 7:21PM]

I have to add something here.

The *original* intent of copyrights as stated in the Court of Queen Anne (where the first copyright was created) and as is actually stated in most copyright acts (the US as well) is to give creators *limited* monopoly in order to promote the creation of new works.

It was never intended to be unlimited in time and scope.

On the 'duration' end, originally a copyright lasted 30 years and could not be transferred to someone else. Now (partially because corporations are now considered persons in a limited way), copyrights can be transferred to businesses who might live far, far longer than the original creator of a given work. This is important because now a copyright lasts the life of the creator plus 75 years.

As well, creators (or rather, corporations who have become copyright owners, mostly) has lobbied successfully for the extension of copyright from the original to long over 75 years, with the possibility (as long as Disney is in business) of extending that indefinitely. (The US SSC noted that they felt there was no implicit restriction on the length of a copyright.)

On the 'control' side, copyrights have never excluded copying without permission. Title 15 section 506 spells out the hook that everyone misses: the copying may NOT be for financial gain, nor may be damage the value of the original work significantly - which is a legal grey area that the N.E.T. (No Electronic Theft) partially cleared up by establishing an upper limit of value and number of copies that constitute damaging the original work. It is still, however, not zero.

In most other countries who are members of the Berne or Universal Copyright Conventions, the 'escape clause' is even simple. The Canadian copyright law (Bill C-41, section 42) allows any personal copying with three limits: the two previous given, and a restriction on the copying of photoplates which I believe has been withdrawn.

Canada goes even further. In exchange for the Digital Media Levy, Bill C-43 Sections 68 and 80 make it clear that the duplication of music for personal use - even of music you do not own - is legal. Similarly, downloading files for *personal* use in Canada is legal (a Canadian SSC judge essentially ruled on that, much to the chagrin of the music and movie industry...)

Now, in the case of the lady who allegedly posted some music on Kazaa - well, that's the break line, even here in Canada. Downloading is legal because you're not in violation of C-42 Section 42. But UPloading isn't legal because it causes a situation which can violate the 'no significant damage' rule.

Clearly, the copyright act was never intended to be a blunt force legal instrument nor is it unassailable. Consumers should get involved in this process and make sure their needs are represented as strongly (if not more strongly - 'Of the people, by the people, for the people?' - that's all people, not just businessmen and there are more of us than them).

[Derek @ Oct 5th 2007 8:03PM]

Wow... you seek way too smart to be writing comments on this page.... if you make your own website, let me know ^_^

nice comment!

[Matt Punk @ Oct 5th 2007 8:38PM]

omg i love ur show, Flipping Out!

[Louis @ Oct 5th 2007 8:28PM]

I believe that copyright under Queen Anne's Rule was only 14 years.

[John @ Oct 5th 2007 11:27PM]

So let me get this right, I am allowed to download music since I live in Canada? If so, would bittorent be allowed too? Thanks

[Dave @ Oct 6th 2007 4:15AM]

Well said. I just wish the author had directly quoted the part of the Constitution he referenced:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

The most important part of that clause is "limited times", because having ideas shift into the public domain after not too long a time is also vital to the progress of science and useful arts, by allowing others to easily build new ideas on top of the old ones. But copyright has been extended over and over again, from the original 14 years to the current obscene life + 95 years. Most recently at the urging of one giant hypocritical company who wants to prevent their precious Mouse from becoming public domain, while they keep producing movies of stories taken from the public domain. And the MPAA, who testified to Congress that "limited times" means "forever minus one day".

Copyright law isn't too badly broken, but the current term of copyright is BS and needs to be fixed.

[ManxStef @ Oct 6th 2007 8:54AM]

@Louis: The duration defined in the Statute of Anne was indeed 14 years, but with the possibility of a single 14 year extension, so a potential maximum of 28 years total.

[cyberguy @ Oct 6th 2007 1:22PM]

Bravo Jeff Lewis....Truly a well written comment which I enjoyed reading. I am sure many other readers feel the same.

[Ian H. @ Oct 7th 2007 1:50AM]

Actually, uploading is legal in Canada, as well as downloading. In Judge Finckenstein's ruling on uploading ( http://www.news.com/2100-1027_3-5182641.html?tag=nefd_pop ), he cited a recent Supreme Court of Canada decision ( http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html ), where the Supreme Court found that "The Law Society [of Upper Canada] did not authorize copyright infringement by providing self-service photocopiers for use by its patrons in the Great Library. While authorization can be inferred from acts that are less than direct and positive, a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law. This presumption may be rebutted if it is shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement." The judgement is that simply by offering music on a shared drive for others to copy is analogous to offering use of equipment which could be used in an infringing manner.

[JLH @ Oct 22nd 2007 9:10PM]

A significant debate is underway in the courts, the Congress and federal regulatory agencies regarding decisions that are being made within the electronics, content and computer industries - about how to best protect copyrighted material in a digital world. Right now the internet is not safe for users to view or download files without potentially infringing on copyrights and suffering large fines, penalties or even worse.

An ever-increasing number of unlicensed downloads are taking place in private homes all over the world. According to recent data, over twelve million people are simultaneously sharing 1.08 billion music, movie, and software files on the Internet at any given moment.

Imagine a person or child sitting down in front of a Television with a remote and selecting a few dozen channels or video on demand selections and finding out later that they have committed copyright infringement and are being asked to pay several hundred thousand dollars in fines. What makes this even worse is there is really no way to determine if a certain piece of content is appropriate for use, copyrighted or not, until the damage is already done.
A typical internet user does not build the internet applications, program the search engines, or manage the internet networks that they use. More could be done with these key elements of the internet to insure that standards are set that provide a higher degree of safety from copyright infringement or exposure to inappropriate content. We live in a society that requires people to wear seat belts; Why?, because they provide an additional layer of protection from unnecessary injury.

A national copyright and rating database could serve as a seat belt for the internet to protect users from injury as well. Copyrighted materiel could be registered along with an associated audience rating of the content allowing internet applications, search engines and network operators to establish national standards for digital rights management.

Now is the time for us all to work together to provide a level of protection from unnecessary injury and make the internet safe again for average citizens in their homes.

Thank you for your leadership in this important social and technological issue.

JLH

[tbs @ Oct 5th 2007 7:24PM]

So, is it just p2p that they are going after? What about bloggers? I know that a lot of music bloggers post tracks that are provided by labels. How do you know which ones are or aren't? What if no one in your home has used a p2p in over a year but your nephew logged on to one and downloaded a half dozen tracks? Just how are they deciding who to go after? Is it someone who is on the p2p for long periods of time? Is it someone who popped in to grab a track and split? Is it someone who has been downloading from blogs?
Are they sitting and monitoring p2ps like Kazaa, Oink or Soulseek and looking for random people? Are they making tracks available and catching the people who are downloading those particular tracks? How is this done?

[holto @ Oct 5th 2007 7:29PM]

This is disgusting...

Drug dealers and Rapist go away for a few months to a few years, and this poor woman has her life destroyed because she fracking shared a few songs? You've got to have your head up your ass to believe our legal system is till on the right track.

Unbelievable.

[Andrew Stone @ Oct 6th 2007 12:57AM]

You are right my friend, although a "the legal system is screwed" argument doesn't really do the problem justice. The laws are aging, true, but its still clear whats right and wrong.

Its about money. Its still more illegal to rape somebody than it is to steal a song. The problem is, the victims of rape and / or drugs are not likely to have millions of dollars. Justice (or injustice) comes to the rich who can afford it, in most cases. We all know that OJ having some coin got him out of what he almost certainly did.

Blaming the system is the wrong way to go about it. Its not perfect, but its the best shot. It won't ever be perfect.

Getting pissed at the system is silly. Get pissed at the RIAA. Instead of moving to figure out a way to monetize P2P, they invest everything in to suing the crap out of their core fan base.

Radiohead's new record, unattached to any record label and available for download at prices the consumer is willing to pay, has been discussed. In fact, check out Canadian singer / songwriter Issa... her site (http://www.sheeba.ca/store/) sells songs at a price you choose, and wouldn't you know it? We consumers aren't as horrible as they expected, because she gets OVER the suggested $0.99 per track!

Its time for the RIAA to accept that in a world where you can get a 160 gig iPod (costing $40,000 to fill up in the traditional, dollar a track model), their ideas on how this should happen are unrealistic.

Its time to either go to a subscription model, like cable TV... or to grasp that recorded music sales are the loss leader for the industry as a whole, and the money is going to be made in concerts, in merch, in licensing...

[a nonny moose @ Oct 5th 2007 7:30PM]

Young whippersnappers. I remember the good old days when the best way to steal music was to join Columbia Music under a fake name, get your 10-CDs-for-a-penny in the mail, then move. Over and over and over again.

[prime @ Oct 5th 2007 7:44PM]

US laws were made way before we had computers but were made to protect property. Thats why we sentence people 10 years in jail for stealing a pack of gun and give someone 2 years for killing. this does not have to do with copyright but are the same just that who can argue against 200 year old laws that still apply some how to today.

[Trevor @ Oct 5th 2007 8:01PM]

If someone stole a pack of guns, I hope they would get 10 years. Who knows what they are planning on doing. :)

[Rususeruru @ Oct 6th 2007 6:15PM]

I can just see it on Fox News:
Man Steals Pack of Gum
Terrorist??

[mare.imbrium @ Oct 5th 2007 8:01PM]

My worry concerned with this particular case is not so much the fact that there were damages assessed in conjunction with the uploading of songs, but that even if she didn't do it she is the one who is liable for the damages. Even if, for example, you were the victim of a criminal act and your computer was hacked and made into a p2p mirror/whatever the lingo is, you get the pay the piper - if I read the news about the case correctly. So if someone tresspasses in my backyard without my knowledge and sells drugs back there, are they going to haul me off to jail?

[Ess2s2 @ Oct 5th 2007 8:00PM]

Here's something I would very much like to point out to the RIAA and all of the Music labels that make up it's membership.

Back before filesharing became huge, I bought on tape all my music, and then all over again on CD when the format changed. Once filesharing began it's rise to popularity, I still bought all my music on CD. I used the filesharing system to preview tracks and albums to see if it was worth my cash, and if it was, I went and bought it, if it wasn't, I deleted the offending tracks. I still have a music collection that spans about 10,000 discs (some of which I wished I hadn't paid for), although all that is now in storage as I have ripped all my legally obtained music to my hard drive to cataloge and use as I please without taking up an entire wall of my house for storage.

On October 10th, Radiohead (now no longer under any contractual obligation with any music labels) is releasing their new album "In_Rainbows." They have a site where you can pre-order the album in either a disc boxset, or as a file download. Here's where it gets interesting, the boxset is a specific price and will be shipped in early November to pre-order customers, the file download however, has a user selectable price, from 0.00 to 99.00 pounds. Radiohead trusts their customers and knows the point is the music, and rather than making people go find it illegally, they make it available at whatever price your conscience can handle. I for one, put in 0.00 for the download, but have already put money aside for the boxset, and am looking up other ways I can support Radiohead as a band. They get it, they understand the relationship between an artist and their audience is more than money, even if they can't work for free.

This is a lesson the RIAA and it's record labels would do well to learn, trust your customers and they will give you all you need and support you, treat them like criminals and they will hate you, shun you, and eventually, topple you.

I sincerely hope more bands follow Radiohead's example.

[Louis Nichols @ Oct 6th 2007 7:07AM]

Great comment man. I agree totally.

Unfortunatelly, RIAA, MPAA and the like are not about music or films, but about money (STRICTLY). I mean, tastes might differ, but we all know that most of the music and/or movies that are everywhere these days are not made for the sake of art. "Artists" are often sold using their looks rather than their qualities, movies are marketed by their cast and/or visual effects, not the merrits of script, directing and acting performance. I don't mean a famous actor may not be a good one, or a good looking singer may not sing well, but that those are not the things that should matter.

Another point is related to what has been said further above. Copyright law is indeed not about the artists' unlimited rights, but about setting a balance between the artist's right to get compensation and the user's right to have access to art. So a question that I think should be asked and is not is "to how much art can a person of a certain income have access these days"? There should be a balance there, because humanity learned during the enlightenment that any form of art has ultimately an educating purpose for the user (an aspect all but forgotten these days). So if we give unlimited rights to artists, it means we don't care about the average level of education of people. And I think this is indeed visible around the world these days.

I am not a fan of Radiohead, but I really admire this move I hear they are making.

[Tisten Pulle @ Oct 5th 2007 8:11PM]

And what about the 8th amendment?

[Louis @ Oct 5th 2007 8:31PM]

It doesn't apply. This isn't a criminal case, it is a civil lawsuit for copyright infringement.

Also, the 8th Amendment is effectively worthless since the Death Penalty has never been ruled Cruel and Unusual.

[Aron Trimble @ Oct 5th 2007 8:24PM]

$9000 PER song - That blows my mind. What I don't understand is how the RIAA can prove that this woman did that much damage?

I would like to know the comparable punishment for stealing 24 songs worth of CDs from Best Buy and then turning around to sell them!

Also, it seems strange to me that they are using backwards logic... In this case, it didn't matter who may or may not have been committing the crime, because it was her connection - she is liable. However, if you were at a library or on a university campus the RIAA would still go after you evern though you do not own the connection!

[WedgeTalon @ Oct 6th 2007 12:13PM]

"how the RIAA can prove that this woman did that much damage?"

That's the thing - they opted not to. They had two choices: (1) ACTUAL damages, (2) STATUTORY damages (eg, the estimated 750 - 30K stated in the article). They chose the latter, thus the JURY got to decide just how much to charge per infringement.

[Michael Scrip @ Oct 5th 2007 9:13PM]

So... they got her IP address and prosecuted her for uploading. They charged her with copyright infringement for making songs available for others.

Why can't they get the IP address of the other people who were connected to her through the Kazaa network. Why stop at her? They should get everyone in the chain!

[jason @ Oct 5th 2007 9:19PM]

what if someone were to start a fundraiser to help this lady out and any other people who have gotten sued thousands of people together could easily help them. i guess it could be a file sharing union to help show that file sharing cannot be stopped. these lawsuits would be meaningless if thousands of users donated

[Satur9nine @ Oct 5th 2007 9:49PM]

Awesome idea, except this should be a company: Copyright Infringement Lawsuit Insurance Company, or CILIC.

[Matthew C @ Oct 5th 2007 9:56PM]

Okay, so Im not saying that she should be sharing music, but don't at least a large percentage of the people who use p2p do it because they can't afford the music? I dont know about her in particular, but the RIAAs kinda going after the poorer audience. I'm not promoting it, but people should be able to enjoy what they like, especially when radio sucks. And theres no music wellfare or anything.
Plus, for all the people that download music, they are still getting other people interested in it, whether they paid for it or not. I mean, I listen to music with friends, so they get to know what I've got. I know I've gotten music just because I liked it when I heard it on someone else's ipod. Without p2p, the music would never get to some of these people.
They scare all these people away, and they've lost a huge audience, many of whom won't ever actually buy the music. And thats all this really was- a way to scare people away. A quarter million is nothing to them- gained or lost.

[shawn @ Oct 6th 2007 3:37AM]

Keep in mind p2p really started by duplicating tapes. If it werent for the excessive duplication of their demo then who knows if Metallica would be as popular as they are now. When napster came along they no longer cared about how people were finding them but about album sales only, or at least it seemed as such. They took down napster and now their friends are taking down p2p as best they can.

[DM @ Oct 5th 2007 10:25PM]

the truth is... the woman from Minnesota shared thousands of songs on Kazaa, but the prosecution decided to on a certain 24 songs probably to get the most leverage... but the fine is still ridiculous... what is more ridiculous is that they would hold a Supreme Court case over this matter or that someone would try to sue another for the crime she committed. What moronic times that are upon us... half an album of songs could ruin your life and an entire album would nearly put you on death row.

[Sean @ Oct 8th 2007 5:38PM]

Actually she it was 1700 songs. And guess what? Not one of them actually got uploaded (or at least observed being uploaded by RIAA and/or their toadies)! So effectively she cost the companies absolutely nothing, but still has to pay a quarter mil. The thing is the ruling is legally suspect and will likely be overturned on appeal, because the RIAA lawyers (liars? sounds about the same) convinced the judge to change the jury instructions to say that distribution is not necessary to establish liability, when case law and precedent have shown that is is necessary, and the RIAA counsel neglected to tell the judge that the case they were citing had been vacated on appeal a few days earlier.

If you are curious about the RIAA and their extortionist practices, check out the blog "The RIAA Vs. The People", written/maintained by two lawyers in New York that do a lot of work defending would-be victims of the RIAA and defending your fair-use rights. The RIAA hates this blog, calling it "the Anti-RIAA Blog". I fail to see what is so anti-RIAA specifically in exposing the truth, but oh, well.

[almostinfamous @ Oct 5th 2007 10:35PM]

nobody AFAIK blames the COURTS for the copyright mess, they probably blame the idiots in DC who were lobbied into this(the legislators).

The RIAA is just protecting it's huge investment(made in the Sonny Bono Act). pretty typical behaviour for a coalition of capitalists :)