If you have not yet, you should consider contributing to the RIAA scapegoats. Jesse Jordan‘s story is particularly extraordinary. He built a search engine for RPI’s network — one of a half-dozen such engines running at the time. Three-fourths of the files in the directory were not music files. Yet he was sued by record companies, demanding hundreds of millions in damages.
When they discovered that he had saved $12,000, they gave him a classic Sopranos-like choice: Either defend yourself in court (which would cost his family over $200,000) or pay us $12,000. He handed over the $12,000.
He, and some of the other student defendants, have set-up donation booths. Whatever your view about these issues, you should consider contributing. Whether or not the RIAA is right about the law, there is something deeply wrong about using the law to squash the likes of Jesse. He was not running Napster; indeed, he did nothing more than hack an improvement to an already existing search technology that existed in RPI’s net. Yet as the RIAA lawyers knew, it would cost him more to fight this suit than to settle it. So his defense would never get a chance to show that the law is not yet as extreme as the RIAA lawyers would like it to be.
Our legal system gives companies like A&M Records the power to do this to people like Jesse. We each, individually, by donating to these students, can help remove some of the burdens of that flaw. We all, collectively, should do something to change that legal system to remove that flaw. Soon.
“We each, by donating to [the RIAA], can help remove some of the burdens of that flaw”?
Why not work for a mandatory award to the accused, proportional to the amount sought, in the event a plaintiff loses? I think the RIAA (etc.) would be reluctant to ask for $20MM in the event that losing the case could cost them, say, $10MM. And wouldn’t a healthy contingent fee promote the development of copyright defense law — and make copyright defense much more accessible to those of us who have only twelve grand (or less)?
I want to help, too. But I don’t believe that throwing money (indirectly) toward the RIAA will somehow make fair the imbalance of burdens between typical copyright litigants. There’s got to be another way … ?
That’s right. We should reform the law so that it favors the petty thieves over rich victims. Then I can start embezzling from my law firm right away.
Can I take pre-donations for a legal defense fund for my censorware work? The threat of what it would cost me if I get sued has basically forced me to quit.
If you assume Jesse Jordan is gulty, Win is right. But ours was supposed to be a legal system that didn’t make any such presumption. My complaint is that no rational person would require the RIAA to prove its case — because of the costs and burdens of this system. And thus, the filing of a complaint is the equivalent of a finding of guilt.
Is there any kind of insurance to protect against lawsuits like this? I’m thinking i’d like to see a policy that covers court costs/attorney’s fees in the event that someone sues you (and would not cover the costs of any judgment against you). Does such a thing exist? Is it inexpensive? I’m looking for about $300,000 worth of coverage with a $5,000 deductible and $200 a year premium (after the EFF and FSF membership discounts). It seems like these corporations might not be so sue-happy if they knew they had a real fight comming.
Well, you’ve now just put your finger on a failing of our civil legal system that effects everyone from Jesse Jordan to Exxon. The threat of a lawsuit, regardless of merit, is enough to extort a settlement, whether it is the little guy doing the extorting or the big guy. Some kind of reform in the legal system itself is needed, where the threshold for getting tagged for filing a frivolous lawsuit is not so high. But I doubt that would help Mr. Jordan because I suspect the RIAA’s case would have merit.
I agree that the RIAA is stupid to pursue him, but I can’t envision a legal system that says you can only sue the relatively bigger tortfeasors first.
Like you, I feel bad for the individuals who are now getting in trouble. But the “music should be free” movement left RIAA with no choice. If you stop the music industry from suing the middle-men, you cannot then complain when the music industry moves against the end-users.
I myself would prefer a world where (a) the middle-men are responsible for litigating and negotiating with the music industry, and (b) individuals are largely immune. I have even said that in print with Bill Landes, arguing that having penalties in essence randomly imposed on individuals is worse than litigation against middle-men whose products have both good and bad uses.
But right now the “music should be free” movement wants to ignore such tradeoffs, having its cake and eating it too. That strikes me as short-sighted and suggests that Jesse should be just as mad at the EFF as he is at RIAA.
Doug, I’m not sure who the “music should be free” movement is. That’s certainly not what the EFF is about. Nor is it what Jesse Jordan was promoting.
Greg, while the reality is sad, I love the idea. We can call it ‘Innovator’s Insurance’.
-kd
Doug:
Ummm…maybe I came to the party too late, but I must have missed the “music should be free” movement you keep talking about.
I can recall talk about information and media being referred to as BEING “free” in terms of free speech, lack of monetary cost (illegaly and legally), and in response to the idea that copyrights are like other property rights, rather than the artificial monopolies they are….but no real “movement” that advocated companies giving away rather than selling products.
What there is, and should be, is a movement pushing for the idea that new technology dictates that the products being offered change, and that laws should change accordingly.
Music is no longer an album I play from start to finish on a machine dedicated solely to that task. It is now something that I can play with and manipulate the way I use pictures to change my desktop or make collages. I want to buy products that acknowledge that, not deliberately sabotage the idea. That isn’t bad….its just different.
Hi Larry –
I was just trying not to name names and distract from the basic point I was trying to make, which is that the arguments against liability for Aimster et al have been short-sighted.
By taking the extreme position that Aimster should get off scot free merely because we can imagine some non-infringing uses (which is the EFF’s position, yes?), courts and advocates have invited the Jesse Jordan and Verizon problems.
It might have made more sense overall to require that Aimster and Grokster take some modest steps toward respecting existing property rights. It would not have been so hard for Aimster to filter out obviously copyrighted music. The filter would have been imperfect, but it would have helped, and courts certainly all the time ask parties to take “reasonable” precautions just like that.
By taking the harder line, the EFF and its allies pushed the music industry to do exactly what it is doing: ask Verizon to name its subscribers who share music, and ask a random subset of those to pay up or face litigation.
In regards to Matt’s earlier comment, to some degree a counter-suit (the professional lawyers here can correct me if I’m wrong) can seek damanges if the first suit was without merit.
The problem with a system in which bringing the suit risks significant losses, though, is pretty obvious. Lawsuits, rather than (hopefully, though obviously not always) being a means of rectifying an injustice, would become a gamble. When a case is felt to be strong enough, it owuld be brought, but a case with the least bit risk may fail a cost-benefit-analysis performed by the plaintiffs, who may then hesitate to bring a legitimate complaint to court.
To some degree, out-of-court settlements are desirable in that they save court costs when both sides know what the outcome will be anyway. But obviously they can also be abused, when the legal resources of one party far outmatches that of the opponent.
I would imagine (again, I hope Prof. Lessig or one of the ther lawyers here can comment) that it would be difficult to find a good lawyer to defend you and even file a countersuit on the proposed retainer of the winnings of that countersuit. If the defendant cannot afford decent representation, or cannot really afford to fight the charges, we have found the true flaw in the system.
Jenny –
Yes and no. I agree that we should embrace new technology rather than clinging only to the familiar; but at the same time I don’t see why technology should dictate either law or policy.
Why not some middle ground — for example, laws that protect the expectations of the many firms that invested in copryighted work pre-P2P, while changing the rules going forward such that folks like you can take full advantage of the latest technologies? Or why not let firms choose whether to create products for your technologies, or the old ones, rather than forcing everyone to be part of the new technology?
Just because there are new technologies does not mean that we have to immediately change the law to accomodate them. Quite the opposite, we might say that new technologies need to show some balance: respecting pre-existing rights while simultaneously allowing us to explore and understand the new ideas that might ultimately carry the day.
Doug-
I’m so disappointed that you’re actually believing the RIAA’s characterization of EFF’s role in this. You should know better. We have never said that anything should be free. In fact, if you’ve ever heard any EFF staffers talk about this topic (and we’ve been talking our little voices out), we’re constantly calling for new ways of compensating artists and copyright holders in a digital world. The problem here is that the RIAA and its member companies are going to be the last ones to suggest alternative payment schemes–they like the current ones just fine, thank you very much. So their reaction has been to kill off anything that threatens current models. This is a real problem, not only because the cat is out of the bag, but because the public is quite fond of file sharing. Nuking whole technologies because there are problems with payment schemes is not the right approach, and holding technologists accountable for, heaven forbid, creating new technologies, is also not the right approach.
If you could allow yourself to step away from the RIAA rhetoric for a minute and try to envision this from a different angle, perhaps you could help move this debate forward. We the people have built the musical equivalent of the Library of Alexandria. It contains one-of-a-kind recordings, and recordings that are no longer marketed by their record companies because they don’t believe there is a market for those recordings. (Someone who called in to a radio show I was on this morning said he got a live recording of Jimi Hendrix and John Lennon performing together off a file sharing network, for example.) Instead of burning down the library and killing the building’s architects, help us figure out how to pay the artists/copyright holders. There should be no free ride; we’re actually in agreement on that. But we shouldn’t limit ourselves to only technologies that fit into the RIAA’s current payment models, either.
Got any answers that don’t involve a match?
Shari
Shari Steele, Executive Director
Electronic Frontier Foundation
Doug,
No, that was not EFF’s position on the Aimster case either. The “extreme” position the EFF (and the American Association of Law Libraries, ALA, American Research Libraries, Computer & Communications Industry Association, Consumer Electronics Association, Digital Future Coalition, Home Recording Rights Coalition, Music Library Association, Net Coalition and Public Knowledge) advanced in the 7th circuit was the position in Sony. It did not take a position on the ultimate resolution of the appeal. It simply opposed five “exceptions” to Sony that the content industry was advancing.
And as for “middle positions,” why isn’t the middle position the same middle position that Congress has always embraced in this context — compensation, but through statutory licenses? That seems a fine way to “respect pre-existing rights while simulteneously allowing us to explore and understand the new ideas that might ultimately carry the day.”
Larry –
The “position in Sony” is what we are all fighting about. Some people think Sony is rightly understood as a blanket exception to liability: show substantial non-infringing use, and the case is over. Others — including the Ninth Circuit in Napster — think that Sony says something else. Under that reading, Sony still requires firms to take reasonable precautions against infringement even if there are also substantial non-infringing uses.
Phrased another way, there were no reasonable precautions available to VCR manufacturers; there are many available to Aimster; and that is an important distinction.
Has the RIAA embraced that view? Nope. Nor has EFF.
As for licenses, I agree — the Netanel and Fisher proposals both have a lot of merit and are worth discussing. But let’s be straight: compulsory licenses are in no way the position Congress has “always embraced” in this setting. Compulsory licenses are used sparingly throughout the law, and while there are some examples (cable being one) there are many reasons to think that we are all better off in a world where prices are set by competitive markets, not government fiat.
In fact, you yourself publicly worry that Congress is too influenced by interest groups to be trusted; why would you then want to give Congress the power to reneg on its promises (eg existing copyrights) and set prices too?
Larry –
On (1), yes. As I said right away when you first asked about it, I was not intending any sort of subtle point there. Sorry for the confusion. Just my inexperience as a blog-contributor coming through.
On (2), not sure where you are going. If the courts rule that any “substantial noninfringing use” absolves Aimster, even if (a) Aimster had the specific intent of encouraging the bad acts or (b) Aimster could have significantly discouraged the bad acts without significantly interfering with legitimate acts, then I think that we will have an unwise, extreme result that naturally will lead to problems like the Jesse Jordan problem.
As I said from the start, we’d be much better off holding Aimster accountable for its design decisions — namely its decision to do almost nothing to respect existing copyright rights — rather than letting Aimster off scot-free and instead putting the pressure on Jesse.
And Shari certainly is not going that way. See her line about “heaven forbid” actually holding people responsible for the technologies they create.
To Doug Lichtman:
I have some more-grounded questions. Note I approach the following
questions from the perspective of a programmer perpetually worried
about the prospect of DMCA lawsuits and similar.
That is, I’m not someone who just talks about these cases as my
job. I’m profoundly concerned with the potential for being
one of these cases (for volunteer work too!)
Jesse Jordan was accused of 1) direct infringement 2) contributory infringement
He’s denied claim #1, and claim #2 is legally highly contestable.
By what logic do you say the RIAA “had no choice”? This is NOT
Aimster, where the practical issue there is if they were doing
a nudge-nudge-wink-wink encouragement of copyright infringement.
Why in the world should Jesse Jordan be mad at EFF???
Again, this case, the case right here, isn’t Aimster/Grokster/Napster …
Don’t lawyers always say that liability depends on the facts of the case?
Seth –
The “had no choice” is just the idea that RIAA was running out of people to hold accountable. They tried Aimster/Napster first. But as that became unworkable thanks to the interpretation of Sony discussed above, RIAA had no one left to sue but some randomly selected person like Jesse.
I am on your side about this being a rotten position for someone like you to be in. I have been pushing for a different approach where RIAA gets to sue Aimster — and gets meaningful relief in terms of some help defending and transitioning copyright as we move into these new technologies — but then, in exchange, RIAA is not allowed to sue people like Jesse and you.
Wouldn’t that make more sense? Napster and Aimster have the resources, the public attention, and so on to fight this battle. They should not get to escape on a mere wink and a nudge.
You can buy legal insurance. When I worked at Microsoft we were able to purchase legal insurance for about $20 a month. MS covered part of it, but not too much. It came through ARAG Group.
While most people used it for things like rental agreements I know one person who won several thousand in small claims court; and all the expenses were covered by the plan.
On another note, it is cases like these that are why pro bono work exists. If you happen to be a first rate attorney, maybe these donations could cover some of your costs as well. Nothing like a high profile case to earn a reputation . . .
Doug,
It’s not true that there’s nothing Sony could have done to
control allegedly infringing home recording. In fact, the
plaintiffs in Sony advocated a technological approach
in which VCRs would be built to comply with directions embedded by
copyright holders. My link includes a quotation from Lardner’s
Fast Forward on this subject. I’ve described it as a
precursor to the current MPAA broadcast flag proposal.
You make it sound as if the RIAA was some kind of rampaging vampire (driven mad
by the leaking of its needed life-force, copyright profits), which then must be
given someone’s blood in order to be sated. And so if one target was defended, by the holy incantations of lawyers, I mean priests, it then “had no choice” but to prowl the earth looking for another, weaker, victim.
The RIAA has won most of its actions – Napster, Aimster. It did have one low-level loss, Streamcast/Grokster. But it’s not as if they’ve been losing regularly, with no “alternative” but to start beating-up, out of frustrated desperation, on college students who are very arguably NOT violating the relevant law.
I’m generally suspicious of anyone proposing a deal where neither of the deal parties have the slightest interest in it. Usually the proposer ends up telling everyone else what a great idea they have, overlooking the detail that nobody else wants it (no offense intended).
Seth raises an interesting point that has bothered me for some time: what does the RIAA gain from some of these lawsuits but more enemies?
I’d imagine most of the strategy is based on the idea that if they let some punk kids get away with piracy now, those kids grow up to be the next napster. Fine. But when the technology is fundamentally hampered by only working on RPI’s campus LAN, then it CAN’T grow up to be the next napster.
Presumably, even with an out-of-court settlement, the RIAA’s costs were far above the 12 thousand they got in return. Perhaps the plan is something as sinister as to strike the fear of god (or the RIAA) into potential pirates, but that seems a bit simplistic.
Pretty much the best I can come up with is that the RIAA truly feels piracy is responsible for declining sales and that even the small fish are dangerous. But this explanation just doesn’t really satisfy me. Anyone have any comments?
Thanks.
One thing that has not been directly mentioned here, but Ed Felten addresses (http://www.freedom-to-tinker.com/archives/000407.html): The talk here is due to the search engine, which the RIAA claims is contributory infringement if I get my terminology correct. Jordan was also accused of direct infringement – sharing mp3s off of his computer. Given that, I’m a little more leery of contributing to his fund, although clearly the contributory infringement portion of the suit was way out of line (i.e. how is google not liable in the same way?). Does anyone know more about the direct infringement portion of the claim?
Yes. He’s denied it.
See my blog entry Jesse Jordan, RIAA, and direct copyright infringement
Doug,
To clarify: I did not mean to say that technology should dictate EVERYTHING about laws that are a response to technology, just that changes in technology will obviously necessitate changes in these types of laws.
Safety and maintaining order are two universal reasons for laws about transportation, but the exact laws themselves must take the nature of the machine into account; we don’t regulate cars the way we do planes, and vice versa. Likewise, while the purpose of copyrights exists independently of changes in technology, the need to enact laws to preserve this purpose IS a direct result of the technology (if memory serves correctly, copyrights followed the invention of the printing press). The technology involved will therefore, in many ways, dictate the WAY in which that purpose is preserved.
This is after all, what the media companies themselves have been asking for, and gotten: new laws in reaction to new technology. The problem is that they, and congress, have used these laws to maintain the way in which “intellectual property” is defined (and their money is made), rather than realising that new laws are needed because new technology changes the very definition of what we consider to be “IP.”
It is easy to understand that being able to make copies of pictures as easily as one can make copies of books means that photography needs to be copyrightable. What people have a harder time with is the way that computers change the nature of copies themselves, most notabley blurring the line between creator/publisher/audience, thus changing the balance between the rights of the copyright holder and the user.
“…why not let firms choose whether to create products for your technologies, or the old ones, rather than forcing everyone to be part of the new technology?”
I’m not trying to force anyone to do anything (except maybe label their products accurately). I’m just pointing out the stupidity of people that, to paraphrase the best graduation speech I’ve ever heard, put a rat in a cage, put food outside of the cage, and then pretend to be shocked when the rat tries to get out.
The media industry keeps pointing to P2P as the reasons for their failing sales; they keep telling congress that they are losing money because I’m a thief. They either don’t see or don’t care that the reason I’ve bought a total of maybe three CDs in the past two years isn’t because I’ve been stealing it instead (I haven’t) it’s because I just don’t like their products or the price they’re selling them at.
They are welcome to keep selling their old products; they can even disable their old products so they won’t work with new third party technology – as long as they are up front about it, but why, exactly, do they feel that its ok to blame me when they realise that their old product isn’t as popular as it was when it was new?
“Why not some middle ground…we might say that new technologies need to show some balance”
mini-rant
Why, when I disagree with someone, do they always bring out the “compromise” trump card? Why must they always phrase it as if they expect me to be unreasonable and disagree with them? Is there something about the way I phrase things that makes them think that I am immune to the idea?
mini-rant end
Again, to clarify:
When I said this:
“new technology dictates that the products being offered change, and that laws should change accordingly”
I meant this:
the MARKET dictates that products being offered change, and policies that affect the market should acknowledge that. We should also change the laws to accomodate new technology when needed, and its usually needed when you are dealing with technology regulating laws like coprights.
Did you think I thought we should use LAWS to make RIAA members start selling MP3s (or whatever new format comes up)?
On a more positive note…I get DSL soon, which means that I will soon be making up for two dry music years by splurging at the Apple Music store. Woohoo!
Jenny,
It seems that you think the search engine was designed for swapping
music and that people are just pretending that it had other uses.
Actually it was designed to search the campus for shared files
in Windows shares. I don’t think the major use was for music sharing.
The search engine certainly wasn’t specifically designed for such
purposes.
Do you have evidence to the contrary?
And anyway, about the idea of liability for service providers,
would you support lawsuits against the University for providing
networks for sharing files? Against the manufactures of the switches
and routers that run that network? Do you see the problem with the
mafIAA’s idea of contributory infringement?
The RIAA’s plan to pursue legal action against individuals is only possible because KaZaA and other systems provide direct, bare IP connection to other users. The RIAA’s announcement has already resulted in file sharing companies describing plans for more robust file sharing systems which provide true anonymity. From a technological point of view, it is difficult for the current KaZaA architecture to be upgraded to provide secure anonymity. The RIAA may succeed in destroying the KaZaA file sharing model just as they destroyed Napster. But if they view P2P as a kind of social virus, they are just making the next dominant model that much more resistant to treatment. See: RIAA lawsuits may destroy the music industry.