Shouting copyright in a crowded theater
July 31st, 2008 Filed Under Copyright, Lawsuits, Other Commentary
The Copyright Clause of the US Constitution may be one of the most misunderstood parts of the document. Not because people don’t understand what it means, but because they seem to think it exists in a vacuum. After all, how else could you justify the lengths to which our government seems prepared to go to protect intellectual property.
But no law exists in a vacuum. Every right you have can potentially be canceled by someone else’s. Take free speech for example. The First Amendment to the Constitution grants every person the right of free speech, but it’s not universal.
If you yell “fire” in a crowded theater you can be arrested. But why? Don’t you have a right to say what you want? Well yes - and no. By yelling “fire” under this circumstance you’ve put other people at risk. Now you’ve infringed on their rights.
Even though there’s no right to be safe written into the Constitution it does exist in a legal sense. In fact there are many rights that were assumed by the Founding Fathers, and therefore they didn’t feel the need to codify them as law. Another example is privacy.
While there’s no Constitutional prohibition against it we can also assume that other people don’t have the right to intrude on your privacy. To be sure there are places we have no right to privacy. If you walk down a public street or enter a public building and someone listens in on a conversation you’re having you can’t sue them for violating your privacy. But if they sneak into your living room and put a microphone in a light fixture it’s a completely different matter.
So why would we give record labels or movie studios the right to filter internet content? In order to do that they first have to “read” the data you’re sending or receiving, and when you send a transmission directly from your computer to someone else’s across the internet you have a reasonable expectation of privacy. Under normal conditions there’s no reason to believe that a third party will have access to your computer’s “conversation” with someone else’s.
The labels and studios, and the lawmakers they’ve bought and paid for, assure us that there’s a pressing need to protect these companies’ rights. They have the right to protect their copyrights and it’s important we help them. And to be fair there’s some truth in that, which is why we have copyright laws. But the people also have a right. It’s a right so fundamental and obvious the framers of the US Constitution didn’t even think it needed to be specifically mentioned.
If we’re going to intrude on that right shouldn’t it be for something more important to our country than an extra couple of million dollars for a record label?
Making available isn’t distribution
July 30th, 2008 Filed Under Copyright, Music Business, Other Commentary
There are a number of questionable claims made by record label attorneys in lawsuits against alleged file sharers. One of their more dubious arguments has to do with what constitutes distribution. Under the law copyright holders have certain “exclusive rights.” In the P2P lawsuits the particular right defendants are accused of infringing on is distribution.
Proving unauthorized distribution can be extremely difficult. There’s no way for an observer to prove that your computer is transferring a song to someone else’s. The obvious solution is to have investigators download the songs. But RIAA attorneys say it’s simpler than that.
In fact, they say, simply offering to distribute a copyrighted song is infringement. They give a number of examples of court cases where various judges have made such rulings, and have even been able to get the US Department of Justice to support this position. They also point out that Congress seems to be under the impression that this is what the law says.
There’s only one little problem. The law doesn’t say what they’re claiming, and an overwhelming amount of case law, all the way up to the Supreme Court, says so. The law clearly lays out what constitutes distribution. It’s not offering to distribute, or “making available” as it has come to be known.
In the case of Tenise Barker this particular issue has been a major sticking point. In April she finally got a small, but important victory in here nearly three year fight against the RIAA when the judge ruled that simply making files available isn’t copyright infringement. It requires that there be a transfer of copyrighted material.
Judge Kenneth M Karras wrote in his decision, “because Congress did not expressly equate the act of “offering to distribute . . . for the purposes of further distribution” to the act of “making available,” Plaintiffs’ allegations – insofar as Plaintiffs wish to hold Defendant liable for acts of infringement other than actual downloading and/or distribution – fail to state a claim.”
So if they have evidence of an investigator downloading a copyrighted file why does this matter? It’s simple economics. If we assume that only a single download for each song listed in a complaint is alleged that puts the actual damages at less than a dollar per song. But if you look at the damages the RIAA is asking for you’ll quickly realize that it’s thousands of times this much. If it weren’t that high it wouldn’t be worth the cost to sue. Not to mention that for a few dollars defendants would be much less likely to settle out of court.
Now imagine going before a judge and asking for damages of $1000 because someone cost you $0.70. That’s basically what the labels are doing, except it’s several thousand dollars for each song. It gets a lot harder to argue for those kinds of damages without the making available argument. Now that it seems to be off the table it will be interesting to hear the next arguement they come up with to justify such a severe penalty.
Your business model is movies that suck?
July 29th, 2008 Filed Under Copyright, Movie Business, Other Commentary
In today’s LA Times there was an article proclaiming that Warner Brothers’ anti-piracy campaign, which began months before the movie’s release, was the reason it has become one of the most successful movies of all time. Believe it or not that wasn’t even the dumbest thing in the article though.
In fact that honor goes to a quote from Eric Garland, an executive for a media analysis firm. Mr Garland said “If the movie’s a stiff, and word gets out too early that it’s a stiff, it’s devastating to the business model.”
Surely he must be kidding right? I mean nobody could possibly have a business model that revolves around their product making just as much money when it’s bad as when it’s good? Could they?
That’s exactly the problem with the entertainment industry’s claims that copyright infringement loses them money. They’re so used to calling the shots that they find it inconceivable that they don’t. The answer, in the warped mind of a music or movie executive, is to change the laws to put themselves back in charge. The problem with this solution is that laws don’t change reality. They reflect it.
The history of copyright law is clear. New technology comes along that disrupts an existing business model. The people making money off that model complain loudly to anyone willing to listen that our entire way of life is under attack. They attempt to use new legislation and/or the courts to ensure their business model’s survival. And in the end they always fail.
Technology that disrupts one business model invariably creates another. And the new one is worth more money to more people. That’s just the way it is. There is no such thing as an inalienable right to make money. If your customers tell you your product isn’t worth what it used to be you either need new customers or a new product. You don’t get to tell them they’re wrong.
Putting all their rotten eggs in one basket
July 28th, 2008 Filed Under Copyright, Legislation and Regulation, Other Commentary
A group of US Senators on the Judiciary Committee have once again decided to grandstand against the evils of intellectual property infringement. There have been several different IP related bills introduced in the last few years, many of which are combined into a new proposal called the Enforcement of Intellectual Property Rights Act of 2008.
The bill uses a two pronged attack to go after the evil of piracy. On one hand it would increase penalties for infringement. Why this is necessary seems to be a complete mystery since the penalties for businesses are routinely below the statutory maximum for damages.
Some people point to the rash of lawsuits brought by the RIAA, and tell you that these penalties would help deter infringement by individuals. There are two problems with that line of reasoning. The vast majority of those cases end in settlements of just a few thousand dollars; far less than the current statutory maximum. And RIAA attorneys admit that the asking for the maximum penalty when they actually have to go to court is based purely on how the law is worded rather than any calculation of damages. On the other hand the higher fines could potentially aid them in bullying victims, er defendants into settling.
As with other recent legislation, this bill would also give the Department of Justice responsibility for pursuing civil lawsuits against IP infringers. Even if you completely ignore the fact that civil cases on behalf of private companies are by definition not the business of government prosecutors, it’s hard to see how taxpayers can afford to provide attorneys for wealthy corporations.
Warner Brothers just had a record weekend at the box office with “The Dark Knight.” Meanwhile people across the country are struggling to keep a roof above their heads and food on their tables. I’ll be happy to pay for their lawyers as soon as they agree to cover my mortgage.
