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by George Ziemann -- May 2, 2008 Note: This article is a collective restatement of thoughts I have recently posted as comments at other sites. After 5 years and 40,000 lawsuits, we have not seen any definitive legal answers to the most basic questions involving the individual, non-commercial file sharing on which those lawsuits are based. Since only about 100 people have contested the accusations to date (according to BusinessWeek), it is clearly in the RIAA's best interests to delay legal clarity as long as possible. This past week's big news was in the case of Atlantic v Howell, wherein the judge concluded that "making available" (having a shared folder with music files) is not "distribution" unless someone actually takes a copy. The follow-up question concerns any songs that MediaSentry downloaded as "evidence." They were hired by the RIAA to conduct this activity, which means all of the copies downloaded by MediaSentry are authorized by the copyright owner. Therefore, those copies are not infringing and cannot be considered evidence of infringement. Would have been good to know that about 39,000 lawsuits ago, but the RIAA gets to rehash the entire, complete argument in each and every case. What one judge says is not necessarily applicable to any other case. Even if it is, each judge is still free to make their own conclusions because nothing in the copyright laws address the specific activities which the RIAA has declared to be illegal. A recent article at the LA Times seems to indicate that Fred von Lohmann of EFF is still questioning whether or not a digital file fits the basic definition of a copy.
While I've seen several attempts to question whether a digital file is or is not a material object, there is certainly no argument that your hard drive is a material object. The more reasonable argument in this line of questioning is that the file is not "fixed" to the drive.
The files in my music folder are not fixed. I can edit, delete or rearrange them, change the pitch, duration, cut out the parts I don't like, unsync the two stereo tracks, put two songs together, make my copy of "Stairway to Heaven" play all the way through in 2 minutes or play back Rush so slow that Geddy Lee is a baritone. The fact that the RIAA spends a lot of time trying to track down who used an IP address at a particular point in time is, in and of itself, a valid argument that what they're looking is not fixed, but transient, volatile and fluid. Then we go to things like "making available," whether the infringer is the person with a shared folder or the person who downloads it and makes a new copy, whether an IP address is an identification, and all those semantic arguments. The RIAA's continued income from this enterprise depends on the lack of legal definitions. Every case starts at square one. After 40,000 cases, not a damn thing has been cleared up from a legal point of view, which is certainly in the RIAA's best interests, because every defendant has to pay an attorney to counter every theory the RIAA dreams up, no matter how distanced from reality. Now they're pushing them into the system faster than ever, exploiting this for maximum financial gain while making no attempt whatsoever to get a binding decision on the underlying issues. If the law was clear, those on both sides of the issue would have to pack up the semantics and adapt to reality. Either the settlements are a reasonable fine for violating copyright law and there is now such a thing as "illegal music," or they are baseless accusations based on a flawed perspective. The RIAA wants people to stop sharing their music on p2p because the RIAA thinks the p2p folks are stealing their stuff. Those of us who think the RIAA is comprised of idiots also want p2p users to stop sharing RIAA music because you're the only thing keeping them alive at this point and if you had stopped sharing their stuff five years ago, they'd already be gone instead of being busy trying to figure out how to get $5 from every internet connection to "compensate" for their "loss." If the RIAA starts proving their points and legal definitions are made, maybe people will finally catch a clue and stop sharing RIAA music, get that "illegal" music off their iPods, and find something else. Carrying on the fight against the internet "pirates" (not to be confused with those involved in making physical counterfeit copies for sale) is much more profitable than winning. If there were no pirates, they might be forced to acknowledged that the video game industry has intercepted a big pile o' dollars that adults would have spent on music a decade ago. You can listen to a CD for about 40 minutes. You can play a video game for weeks, if it's a good one. Highly superior investment of the shrinking entertainment budget. Suing a million people won't change that. |