File Sharing, Damages And The Constitution...

from the getting-into-the-legal-weeds dept

Doug Lichtman is a well known intellectual property law professor who is a fairly big supporter of the copyright system. He's reached out to us, because of a podcast he recently recorded discussing the Joel Tenenbaum lawsuit. To be honest, I'd pretty much stopped covering anything to do with that lawsuit, because over the last couple of months, it's turned into something of a circus side-show, with both sides running around and making decisions as if they've never actually been in a court of law before. Even the judge has been making mistakes.

However, Lichtman specifically was hoping for the perspective of folks around here on the podcast, because (as he noted in his email), most of his listeners tend to be strongly pro-copyright, and he was hoping to at least find out what those of us less sure of the benefits of copyright think. To be honest, after listening to the podcast twice, it may be a bit too down in the legal weeds for many readers here -- though, if you really are interested in the legal specifics, have a listen. The first part involves Lichtman talking to Charles Nesson himself about the case, followed by three "legal experts" and then a guy from the RIAA who seems to honestly believe that the RIAA's lawsuit strategy was a success because it taught more people that file sharing was illegal. This is wrong on many different levels, since it clearly didn't impact user behavior, and has created other problems, such as the false belief in some that all file sharing is illegal (even of authorized content) and has framed the RIAA as being anti-consumer, making it that much harder for the major record labels to eventually make the shift in business models that are necessary to succeed these days.

The overall "conclusion" that Lichtman comes to is that Nesson and Tenenbaum are likely to lose the case, as precedent suggests that courts will likely find the statutory damages in the copyright act to be within the range of being constitutional. I actually agree that this is the likely outcome, though I find it, and the reasoning behind it, quite troubling. I also hope that, when (if) the case really goes to trial, Nesson has worked up a better argument than he gave on the podcast. While he does raise some good points, a lot of it feels like he only has a superficial understanding of both what's happening and the law itself. When really pressed on legal issues by Lichtman, he resorted to an emotional argument ("it's just a kid clicking on links!") which hardly is legally compelling.

However, in listening to the "experts," it sounds like it would be possible to make a more compelling case against the statutory rates by pointing out some rather simple facts: file sharing, in and of itself, creates no damage for artists -- and thus, the statutory rates have nothing to do with being a "remedy," but have everything to do with being punitive, which would make it a criminal issue, rather than a civil one.

Now, I can hear the copyright supporters (including Lichtman) shouting that it's ridiculous to claim that file sharing creates no damages for the artists -- but that's not what I said. I said, file sharing in and of itself creates no damage. And that's easily proven: just point to the increasingly large number of artists who have embraced file sharing on purpose and who have found that it's helped them earn more money. Then, what you realize is that file sharing combined with a bad business model may create damages, but those damages may be alleviated by putting in place a better business model (again, pointing to evidence of artists who have done exactly that). At that point, the "damages" have gone away. The fault is almost entirely on the part of the artist who picked a bad business model, and then did nothing to alleviate the problem when it became clear that the market was going in a different direction.

In that case, there's no actual evidence of damages, and it's difficult to see the constitutionality of charging someone $750, let alone $150,000, when there's no actual evidence of damages -- and the only actual "damage" may have been caused by the artist themselves by picking a bad business model.

Part of my problem with all of these discussions is that copyright supporters seem to automatically assume that file sharing must be bad -- but there's plenty of evidence to counter that, with artists' wide embrace of it (successfully in many cases) being exhibit A. If file sharing was really so damaging, there would be no such examples. But we see more and more every day. So it's not file sharing that's the problem. The real problem is a bad business model combined with file sharing. And it's rather ridiculous to fine Joel Tenenbaum (or anyone) because some record labels and musicians chose a bad business model.

Filed Under: charles nesson, constitutionality, doug lichtman, lawsuit, tenenbaum


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  1. identicon
    Shane, 19 Mar 2009 @ 1:25pm

    Doug Lichtman's show is called "IP Colloquium" and himself a "moderator." Neither is true. It is not a colloquium but an edited interview program with Lichtman serving as interviewer. Now he's trying to pimp his misleadingly named show via Tech Dirt.

    In a show purporting to be about the constitutionality of statutory damages in copyright Lichtman didn't even bother to interview the one lawyer who has successfully brought up the question in court against the RIAA.

    Ray Beckerman thoroughly savaged this so called Colloquium, and even took down his the link to the show because Beckerman thought the show was so egregiously deficient in it's coverage of the issues involved.

    I noted this at Beckerman's blog:

    Lichtman is clearly more than just playing at devil's advocate but, instead, actually thinks that statutory damages of $150,000 per song on Joel are reasonable even though they have *nothing* to do with any damage actually and directly related to damage alleged to have been caused by Joel. The host has no problem with the RIAA wielding the power of a government criminal prosecutor with none of the obligations or higher standards of evidence, and with none of the criminal procedural protections for defendants.

    From the IP "colloquium's" about page (which is seemingly copy protected by using an all flash interface which makes cutting and pasting text difficult...):

    "The Intellectual Property Colloquium is an online audio program devoted to intellectual property topics. We aspire to be something like an NPR talk show, but focused on copyrights, patents, and aimed primarily at a legal audience. Our programs are neither lectures or debates. They are instead conversations, with guests drawn from academia, the entertainment community, the judiciary and various technology industries."

    So, if their programs are neither lectures nor debates where do they get off calling them "colloquia"?? And the interviewer a "moderator??" I call foul. Colloquium has a specific meaning and the name "IP 'Colloquium' " seems deliberately chosen to give a false impression of what the the IP audio program realy is.

    Just the about page seems to hint at a pro-IP position. And Doug Lichtman? While he isn't a hardline copyright maximalist, he's one of the Lawyers who joined the Viacom legal team in their bid to sue Google over You Tube. But he didn't just join there team, he even wrote an Op/Ed for the LA Times where he explains his position:

    "The problem is that users upload excerpts of copyrighted movies and television programs without authorization, and then YouTube happily distributes that contraband to the public. And Google, knowing all this and benefiting from the attention the unauthorized videos bring, has refused to take even simple steps that would reduce the infringement without meaningfully interfering with the service's legitimate use. That is what led me to join Viacom Inc.'s legal team."

    ....where he conveniently forgets to mention that You Tube complies with with the DMCA takedown notices as required by the DMCA lobbied for by the copyright industry, including his client Viacom. By "simple steps" Doug means "do whatever Viacom demands without question."

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