by Mike Masnick
Fri, Apr 17th 2009 12:39am
from the no-surprise,-but-disappointing dept
by Mike Masnick
Thu, Mar 19th 2009 1:03pm
from the getting-into-the-legal-weeds dept
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.
by Mike Masnick
Wed, Jan 21st 2009 1:13am
from the context-is-king dept
by Mike Masnick
Thu, Nov 20th 2008 3:39pm
from the that's-quite-a-witness-list dept
However, there is some interesting news in the case, as Ray Beckerman has posted the proposed witness list put forth by Tenenbaum's legal team and it is quite the star-studded list. It's becoming quite clear (if it wasn't already) that this is a case where a bunch of different folks in the "copyfighting" realm are converging to confront the RIAA's legal strategy. The list includes:
- John Perry Barlow (former songwriter for The Grateful Dead, founder of the EFF, and well known digital thinker)
- Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)
- Prof. Lawrence Lessig (needs no introduction, I imagine, for folks around here)
- Matthew Oppenheim (who has a somewhat murky relationship with the RIAA, at times representing the RIAA, and at other times insisting he does not represent the RIAA)
- Prof. Terry Fisher (a director of Harvard's Berkman Center and author of Promises to Keep, an early book looking at how the internet was changing the entertainment industry, and how it's business models need to change)
- Prof. Wendy Seltzer (well known copyfighter, law professor, former staff attorney at the EFF and founder of the Chilling Effects site)
- Prof. John Palfrey (Harvard law professor, co-director of the Berkman Center, author of Born Digital)
- Prof. Jonathan Zittrain (Harvard and Oxford law professor, co-director of the Berkman Center, author of The Future of the Internet)
- Andrew Grant (former antipiracy specialist at DRM company Macrovision)