MediaSlap blog

Can Music Copyright Exist on the Web? – Part III

July 28, 2009

A Modern Mess

“The answer, my friend, is blowin’ in the wind… The answer is somewhere in the wind.”
Blowin’ In The Wind – Bob Dylan

And, indeed, answers to Music Copyright existing on the internet do reflect prevailing winds. I’ve attempted to complete the third part of this series since April 2009, and every time I felt I had a succinct conclusion, the winds changed direction. And many facets of this debate will change after this article has been finished and posted. But much like the swing of a pendulum, it’s the back & forth shifting that began to make sense and explain the modern mess that currently surrounds copyright law issues.

As discussed in Part II, the historical legal precedents for copyright infringement carry stringent federal statutory racketeering charges involving the possibility of both criminal and civil penalties. With legislation introduced in the latter part of the 20th century, Congress sought to loosen hard-clad exclusivities of the author’s rights over their creative works. What Congress didn’t see coming was a computer revolution that gave everyday people the ability to quickly and easily violate copyright statutes before being aware of the law itself! And record companies didn’t invite public sympathies as they built irresponsible rock-star images for themselves and their artists (Many of these artists were actually broke after the record company “dole” ended).

Year 2000 was not only a new decade, a new century, but a new millennium. And the expected chaos of that date change, for the most part, came and went unnoticed to most of the world. But to the RIAA and the record industry they represent, it WAS the feared meltdown. The Digital Millennium Copyright Act (DMCA), passed in October 1998, tried desperately to stem the free-flow of mp3’s by introducing Digital Rights Management (DRM) protections with the net effect of trying to extinguish a four-alarm fire with a garden hose. The greatest harm came from a file-sharing network launched in June 1999 named Napster, who foreshadowed the present-day loss of product distribution control. In fact, there was a period of debate over whether Napster was actually GOOD as a promotional tool for record sales (in one form or another, this debate continues today). Somewhat ironically, the RIAA filed suit against Napster on Pearl Harbor Day, December 7th, 1999, but did not  gain an injunction to stop file-trading until March of 2001. But the stage was set. Subsequent Napster-imitation platforms proliferated in various guises like eDonkey2000, Kazaa and The Pirate Bay, to name a few. And peer-to-peer (P2P) download technology was vastly improved with the BitTorrent protocol, a distributed-data method whereby a single file can be pulled in parts from many peer computers.

Loss of control of distribution is a knife to the heart of everything that copyright law holds sacred. In this new millennium, there was no one better to pursue copyright infringements on behalf of the record companies, distributors, music publishers, artists and copyright holders than the RIAA, who touts themselves as “the trade group that represents the U.S. recording industry” and whose mission is “to foster a business and legal climate that supports and promotes our members’ creative and financial vitality.” Since 1999, the RIAA has initiated lawsuits against file-sharing networks, portable audio device manufacturers, internet service providers, colleges and universities, as well as numerous individuals who either posted, downloaded or provided assistance in the illegal transfer of music files. Because of in-exacting methods used to identify infringers based on ISP identification of an IP address, the RIAA has embarrassingly sued dead people as well as people with no computer at all.

Early this year, the RIAA announced that it was no longer going to pursue NEW cases against individuals and announced a new campaign of cooperation with Internet Service Providers world-wide based on a “three-strikes” doctrine of notifications to violators, then disconnection of service upon the “third strike”. One major problem – No negotiations had taken place and no ISP’s anywhere were on-board with the RIAA’s plan. To say that the response from ISP’s has been mixed would be an exaggeration. So far, only the French and Irish governments have expressed what could be termed as a momentary interest in the plan and there have been outright rejections from New Zealand, Norway, Germany, and Spain while most state-side providers have simply denied knowledge of any such agreement.

Meanwhile, the RIAA continues to win previously-docketed cases in the U.S. In the matter of Capitol Records v. Jammie Thomas-Rasset, the Minnesota single-mother of four was ordered to pay 1.92 million dollars for infringement of 24 songs posted to Kazaa (Before you get outraged, consider she was offered a pre-trial settlement for less than $5000). Arista recently prevailed against Usenet after a long, drawn-out battle. And why shouldn’t they? The attorneys representing these clients somehow think that a court, somewhere, somehow, is going to change punishments that are statutory ie. they are written into the law! These attorneys are barking up the wrong tree – Laws are changed by CONGRESS, not the courts! In the matter of Sony BMG Music v. Tenebaum (a Boston University Grad student facing 30 infringements), the U.S. Department of Justice ruled that statutory damages sought by Sony ARE constitutional because of THE LAW (from $750 to $150,000 per infringement). My friends, you can argue all you want, but until you change THE LAW…. You’re just wasting everyone’s time and money.

On the international scene this past April, Sony Music, Warner Bros., EMI Music and Columbia Pictures prevailed in a Stockholm district court against Pirate Bay, a Swedish-based BitTorrent P2P who had defiantly thumbed its nose at major labels for years. The fines accessed were $3.56 million dollars and the principles, each sentenced to one year in prison, remain out of jail only due to the appeal process and recently sold the company. With precedent at hand, at least two other countries are now set to launch further suits against PB. Semi-ironically, Sweden recently passed an anti-piracy law, IPRED, requiring ISP’s to reveal the identities of repeat infringers.

*Part IV of this article

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Entry Filed under: Media, Networking, blogs, commentary, copyright, music, web. Tags: anti-pirate, artist, BitTorent, file sharing, infringment, music copyright, pirate, RIAA.