RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing

from the wow,-that's-chutzpah dept

After the Jammie Thomas verdict came down, I predicted that the RIAA would “gloat about and misrepresent to its own advantages.” Within hours, I was attacked by a former entertainment industry lawyer with a long screed claiming that no one from the RIAA misinterpreted or gloated about it at the trial. Except, of course, I wasn’t talking about what they said as they walked out of the courtroom. I was talking about what would happen afterwards… like a few days later on the RIAA blog. That’s when the RIAA tried to claim that the Jammie Thomas jury provides a representative sample of “music industry outsiders” whose verdict disproves the theories of certain “pundits” who believe the digital economy should be a “new wild west” where “the rule of law” is not obeyed.

Talk about misrepresenting.

First of all, I don’t know of many “pundits” who think that the digital economy should be a new wild west at all. I think that many of them are actually just focused on preserving individual rights against a constant landgrab by an industry whose history has shown it to not be above removing right after right after right from people. The RIAA and its supporters have taken content out of the public domain, making a government go back on a bargain it struck with content creators, much to the detriment of society, but very much to the benefit of a few record label execs and their lobbyists and lawyers. That’s stealing from the public. It’s taking a bargain and changing the terms. People don’t want a wild west. They want the culture we were promised, and they want their individual freedoms.

Furthermore, calling the very specific nature of the Jammie Thomas trial a referendum on file sharing is ridiculous. Her case had a very specific set of circumstances unlike many others — and even we (a “reliable critic” according to the RIAA) felt that she never should have gone to trial, as the evidence against her seemed strong. On top of that, this “sample” involved RIAA lawyers who had years to prepare the case against some rookie lawyers who were brought on the case just weeks earlier with little preparation at all, and who, frankly, did a terrible job, seemingly more focused on other issues than the key points in the case.

The Jammie Thomas trial was not a referendum on “the rule of law” or on “file sharing” or on the future of music business models. It was a referendum on Jammie Thomas, who presented herself as an incredibly questionable witness with a fair amount of circumstantial evidence that she broke the law and then tried to avoid taking responsibility for her actions. If the RIAA wants to believe that the people are behind its self-destructive campaign of suing people, more power to it, but putting its head in the sand hasn’t worked for the last decade, and I doubt it’ll start working now.

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Comments on “RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing”

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45 Comments
C.T. says:

Huh?

“The RIAA and its supporters have taken content out of the public domain, making a government go back on a bargain it struck with content creators, much to the detriment of society, but very much to the benefit of a few record label execs and their lobbyists and lawyers. That’s stealing from the public. It’s taking a bargain and changing the terms. People don’t want a wild west. They want the culture we were promised, and they want their individual freedoms.”

Could you expound on this?

BullJustin (profile) says:

Re: Huh?

The constitution is an agreement by the people of this nation how to be governed. Article 1 section 8 of the US Constitution states “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 Copyright Act of 1790 instituted a copyright of 14 years with an extension of another 14 years.

The 1831 Revision of the Copyright Act made it 28 years with a 14 year extension.

The 1834 case Wheaton v. Peters upheld the constitutional view that copyright was for a limited time only instead of a “perpetual natural right” and that copyrights were granted by the federal government “in order to serve the public interest in promoting the creation and dissemination of new works.”

The 1909 Revision of the U.S. Copyright Act extended copyright to 28 years with a possible 28 year extension. It was an attempt to balance protection and compensation for the owner of the work with protection of the public. It was also intended to prevent oppressive monopolies from forming.

The 1976 Revision of the U.S. Copyright Act was enacted to keep the US in accordance with international standards under the upcoming Berne Convention. It extended copyright protection to life of the author plus 50 years. Works for hire would be protected for 75 years from creation. This also formalized fair use and first sale rights. Fair use would be judged on the use’s purpose and character, the copyrighted work’s nature, how much and how important the portion used is compared to the whole, and the use’s effect on the potential market. It also stated “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

When the US signed the Berne Convention in 1988 it created copyright relationships with 24 countries and eliminated copyright notification requirements.

In 1992 the US Congress amended Section 304 of Title 17 made renewal automatic. This protected a lot of works copyrighted before 1978 – i.e. Mickey Mouse.

In 1998 the Sonny Bono Copyright Term Extension Act extended copyright from life of the author + 50 years to life + 70 years. A court case later on would claim this extension was given to help corporations like Disney hold on to copyright for another 20 years. Since Walt Disney died on 12/15/1966 his copyrights would be over in 2016. This act extended Disney’s control over Walt’s works until 2036. The DMCA was also instituted this year which for some reason protected boat hull designs.

All art is based on something else – first nature and then a combination of nature of the artists who came before. The right of authors to create new works based on older works has been taken away, and thus there has a steady decline of the public’s right and ability to create new works. The stories we heard as kids we cannot now use to create new stories. New stories don’t come from nowhere, they come from our experiences. Curtailing our ability to synthesize our experiences into a new stories steals from us our ability to create new work. While protecting creators from unauthorized commercial use, it also rewards the laziness of past creators and punishes the work of new creators.

For a fuller view of copyright history and the important court cases surrounding it (instead of asking someone else to do the work for you) do a Google search or check out the page I used to create this timeline.

C.T. says:

Re: Re: Huh?

I appreciate the effort, but I am thoroughly familiar with the history and evolution of copyright in this country.

Your history lesson doesn’t bear on Mike’s rather outlandish claim that I quoted above.

I’d really appreciate an explanation about how the RIAA has “taken content out of the public domain, making a government go back on a bargain it struck with content creators, much to the detriment of society, but very much to the benefit of a few record label execs and their lobbyists and lawyers.”

BullJustin (profile) says:

Re: Re: Re: Huh?

Ah, very well, then.

The original agreement with the people was to allow content creators exclusive use to their creation for a limited time. Over the years congress has extended the limited time from 14 + 14 years to life + 70 years. In the US the extension from 28 + 28 years to life + 50 was to come into line with a treaty that wasn’t signed until 12 years after the law went into effect. The major proponents of this change were the RIAA (formed in 1952) the MPAA (formed in 1922) and the players in the industries they represent. Movie studios back the RIAA because it helps them, and likewise record labels back the MPAA.

Since the copyright and patent clause of the US constitution was so hard to get around, the RIAA & MPAA through their international affiliates moved their efforts to Europe. Then, through the Berne Convention, those international laws were forced upon the US in violation of the US constitution through a treaty.

The 1976 revision of the copyright act took some works out of the public domian, such as the happy birthday song which copyrighted was registered in 1935, though it first appeared in print in 1912. That song was actually based on the tune of another song written in 1893. Based on original publication date the copyright should have expired in 1940 or 1968 with the extension, however based on copyright registration date that should have expired 1963 or 1991 with extension. According to the current owner, the 1976 revision made the copyright good through 2030.

Since the happy birthday song was taken up to the supreme court of this land and found to be still under copyright, what is considered the most recognized song in the English language cannot be sung in public, on TV, in a movie, on the radio, or in a park where someone could hear it without paying the guy who bought the rights in 1990.

I would say this exemplifies Mike’s comment about how “[t]he RIAA and its supporters have taken content out of the public domain, making a government go back on a bargain it struck with content creators, much to the detriment of society, but very much to the benefit of a few record label execs and their lobbyists and lawyers.”

This one guy, who had nothing to do with the original creation of the song has stolen a bit of our cultural heritage. What we used to hear on a regular basis in restaurants has been replaced with waiters clapping and singing a almost frighteningly upbeat version of some song their lawyers allow them to sing rather than a song that binds our culture together.

LostSailor (profile) says:

Re: Re: Re:2 Huh?

Then, through the Berne Convention, those international laws were forced upon the US in violation of the US constitution through a treaty.

Actually, Article VI of the Constitution says that treaties are essentially the equivalent to the Constitution, so the terms of a treaty, properly ratified, is constitutional (unless you can convince the Supreme Court that one of the treaty terms violates another part of the Constitution).

Anonymous Coward says:

Re: Re: Re: Huh?

Way to miss the point…the point was that as corporations gained more and more power rights of ownership were transferred from the public to the private domain. Initially this was created to stimulate creativity. The reason that movies and books and television all seem so homogeneous lately has been a direct result of this. If you take away the ability to take ideas further than their original creators you stifle creativity. I agree that some copyright is well and good and advocate for 40 years from time of creation and doing away with work for hire copyrights and instead giving those to the artists.

LostSailor (profile) says:

Re: Huh?

Yes, Mike, please do expound on this (and perhaps lose some of the seething anger).

How, exactly, has the “RIAA and its supporters” taken content out of the public domain?

Can a “bargain” once struck never be modified? And if so, then how can copyright be modified in favor of conusmers?

How is this “stealing” when you vociferously maintain that file sharing isn’t?

What culture were “people” promised? Who promised it?

And what “individual freedoms” are you talking about? If people can’t freely copy music regardless of copyright, is that the same as slavery?

As for misrepresentation, I take it that it’s your position that the Thomas-Rasset case represents only a very narrow victory against a specific person in very specific circumstances and shouldn’t be see as having any wider impact. If the record labels were to lose one of these cases, would it also be a very narrow victory in very specific circumstances, or would it be a sweeping repudiation of the RIAA’s litigation campaign and the music industry in general?

Just curious.

Jim says:

Re: Re: Huh?

In the 1930s authors created content because they thought copyright was a fair enough deal. If they didn’t think so no content would have been created. They knew the deal and created content anyway – which is to say they thought it was fair enough. To later claim that copyright isn’t long enough is disingenuous.

Also, if copyright is too short and is a bad deal at 28 or 50 years, no content would have been created before the life + 50 mod.

Anonymous Coward says:

Re: Re: Re: Huh?

Jim, consider this: When Mickey Mouse first made his appearance, in 1928, the entire moving picture business had been around for, what, about 30 years? So a 30 year term would have been “as long as movies have been around”.

Well, these days, Disney produces brand new Mickey Mouse content all the time (my godson is loving the newer Mickey Mouse Playhouse stuff), so not only is Mickey Mouse something of history, but something current and innovative. At this point, because MM is still an active product, there should not be a reason for it NOT to be copyright. Continued new uses of the images should be enough to maintain a copyright.

So again, like other subjects – the discussion here needs to be clarified with the scale of the day versus the current circumstance. Consider the mythical long tail on stuff – should the original creator or rights holder not be allowed to profit for as long as people are buying it?

Anonymous Coward says:

Re: Re: Re:2 Huh?

So what you’re saying is that all the stories of alladin, the jungle book and all the movies that Disney has made from public domain works should never have happened? Give me a break and stop saying that just because it is an active product it should be kept forever. The Original creator is dead, it is no longer his idea. Disney is a corporation that will never die, so nothing created and used by any company would EVER become public domain. Books being reprinted would be “updated” so would be new items, pictures would be color fixed and so be updated. You might as well do away with public domain in your world. But hey screw the public for wanting to build on anything and lets just take what is shoved down our throat and let the country fall into obscurity.

Anonymous Coward says:

Re: Re: Re:2 Huh?

You keep popping in and whining that it’s not enough. It has to be longer than the life of the creator. It’s for the people! Bullshit. The creator is dead. What does he care? As to your argument re: Mickey Mouse, the new stuff would be copyrighted, and Mickey is also a trademark, so again, is the copyright extension really needed? No. I don’t think so.

Jay Greathouse (profile) says:

stop trying to reform psychopaths

At what point are well-intentioned people going to give up on unredeemable psychopaths and stop giving them attention? The RIAA is not going to fix itself, the WSJ is not going to fix itself, AP is not going to fix itself and they will all go down fighting to preserve their fiefdoms.

I make every effort to network with thoughtful considerate people and walk away from @$$holes. It just does away with a lot of bull$hit. Anyone who gets sucked into their games better learn how to disconnect before they are completely drained of blood. Otherwise they are just dead people walking.

So I address my words to those worth saving, those who can clearly see how screwed up the entrenched power structures, or even have a clue about it, and say let’s just build the systems we want.

max (profile) says:

Re: stop trying to reform psychopaths

I agree, these entities are already set in their ways. They will probably implode one day, (from the inside).
In the mean time we need to think ahead with our solutions for the good of the people concerned. As you say here, build on new systems that will make sense 20-50 years from now, (which is about how long the old system was valid).

max (profile) says:

Re: Re: stop trying to reform psychopaths

Clarifying: any new systems should be based upon copyright laws……we need a copyright system, so any new systems would actually be sub-systems within the U.S. copyright system which of course can be amended “by the people” if they decide to act, (just talking about it or bad mouthing copyright laws is not productive enough).

Dark Helmet (profile) says:

Yay for false logic

“That’s when the RIAA tried to claim that the Jammie Thomas jury provides a representative sample of “music industry outsiders” whose verdict disproves the theories of certain “pundits” who believe the digital economy should be a “new wild west” where “the rule of law” is not obeyed”

I think it’s hysterical that Barracuda Networks’ web filter allows me to visit Techdirt.com at work, but it lists the RIAA blog site as blocked category “Recreational/Entertainment/Hobby”. I can only extrapolate this using RIAA logic to assume that Barracuda Networks represents how every single technology company in existence views the RIAA as a hobby group that should not be looked into during normal business hours.

Michael L. Slonecker says:

“…individual rights…”

What individual “rights”? Copyright provides the rights holder with a bundle or rights having metes and bounds. If something is not contained within those metes and bounds the rights holder is out of luck. Even fair use is not a “right” granted to the public at large. It is a limitation telling the rights holder that fair use lies outside the foregoing metes and bounds of what the rights holder holds.

Re copyright term extensions, it was not the US that pushed these when the 1976 Act went into force. It was to conform US requirements to be consistent with treaty obligations placed there primarily by european contries. Also consistent with those obligations, even copyright formalities were removed except for the requirement to secure a registration prior to instituting a lawsuit in the US.

As for RIAA gloating and spin, this is a gross exaggeration and overstatement. Even the RIAA was shocked by the size of the verdict and has made it only too clear it wants to settle the matter as it always has and for a nominal sum.

And finally, all this blather about “it was only 24 songs” misses the point. Doubtless the plaintiffs (record labels and NOT the RIAA) could have identified many, many more music files, but obviously chose not to do so since this lawsuit and others like it were for the purpose of making a point and not bankrupting defendants. The fact the jury in Mpls chose to make a large award (which it darn good and well knows will never be paid and will be settled for a nominal sum) was not of the plaintiffs’ choosing. Both the judge and the plaintiffs made it clear that it was up to the jury to decide what it believed should be awarded.

The Infamous Joe (profile) says:

Re: Re:

this lawsuit and others like it were for the purpose of making a point

..I’m not trying to troll, I promise, but what, exactly, *is* their point? That it’s ilegal? Yeah, we all know that already.

I have a great idea! If they don’t want or need these huge fines, perhaps they should aim their lobbyists in the direction of copyright laws that allow for such huge fines? Surely, they can get a no-fines-for-non-profit clause thrown in there, and then they can sue all day every day to make this point (that I still don’t get) and no one gets to get financially ruined.

Or.. maybe it *is* about the money, and fear, and control, and power.

scott parsons says:

Ask the jurors

Is it possible over there to actually interview the jurors and ask them the reasoning behind their decision? Legally I mean, logistically might also be difficult but I thought it might be fascinating to see their reasoning.

It is easy to get disconnected from what the average Joe on the street thinks about copyright from here inside the echo chamber

Charles says:

I have 2 theories…. 1. That this whole thing is rigged so that they have a baseline on how much they can “charge” people for pirating their “music” and 2nd…. The jury is a group of her peers which know S*** about anything.. usually… and if it was a group of our peers this would of been shot down in a short time….

The Infamous Joe (profile) says:

Re: Re:

Exactly.

One juror was dismissed after admitting that he had friends who used Kazaa. *Of course* they are going to rule in the prosecution’s favor if no one on the computer has any background in computers, p2p, or knowledge of file sharing.

Even worse, this is nothing new with jury selection.

To be a true jury of my peers, they would have to be chosen at random and not questioned at all.

RD says:

FU

“[What culture were “people” promised? Who promised it?]”

The UNITED STATES FUCKING CONSTITUTION you asshole.

GOD DAMN I am sick of industry apologists who are willing to sell our rights, culture, and the constitution right down the river to the greedy corporations without so much as a LITTLE consideration for the contract with society.

LostSailor (profile) says:

Re: FU

The UNITED STATES FUCKING CONSTITUTION you asshole.

Yes, well, that clause in the constitution gave Congress the power to set the limits on copyright, which it has. Constitutionally. If you think the limits are wrong, ask Congress to change it.

GOD DAMN I am sick of industry apologists who are willing to sell our rights, culture, and the constitution right down the river

No one has sold the constitution or your rights down the river (see above).

And copyright doesn’t sell your culture down the river. Does it become “your culture” only when works enter the public domain? The works of John Coltrane, Muddy Waters, Leonard Bernstein are solidly part of our culture. Catcher in the Rye is iconic in our culture. The Godfather and Star Wars are part of our culture. Even the famed Mickey Mouse is our culture. All under copyright. All part of our culture.

Nick says:

Jury selection process

I didn’t see this mentioned in any of the early comments, but what about the not-so-minor point that any of the candidate jurors in the jury pool that engaged in (or even knew anything about) file sharing were excluded by the RIAA lawyers?

The other point I would make is that for baby boomers and older (i.e. people that were already at least in their 30s when the web rolled around), the jury’s view probably *is* fairly representative – they wouldn’t necessarily grasp that copying content is one of the main things that computers *do* in their normal course of operation, so they’d be more inclined to accept the RIAA’s “file-sharing-is-theft” misrepresentation.

Sure, plenty of older folks that actually work in technical fields (or actually listen to their own kids) do get the distrinction between copying and steal as well as the younger ones that started using the web when they were teenagers (or younger) and have never known anything else.

But I think there is a definite age-based demographic split here, and I’m sure the RIAA did everything they could to make sure that the jury make-up was skewed towards an older non-computer-literate crowd.

LostSailor (profile) says:

Re: Jury selection process

It may not have mattered if jurors were previously aware of file sharing or that copying is what computers “do” or the difference between file sharing and stealing.

Thomas-Rasset wasn’t on trial for stealing. She was on trial for copyright infringement. While the defense tried to introduce as many other issues (were the copyrights valid, etc.), did downloading of copyrighted songs occur and did Thomas-Rasset do it? The jury thought there was sufficient evidence that copying happened and Thomas-Rasset did it. It’s not really a matter of dispute that it’s illegal. Or at least that wasn’t disputed at trial.

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