The Wider Implications of an RIAA Lawsuit
The landmark first of its kind civil trial brought by the Recording Industry Association of America (RIAA) against a Minnesota woman accused of illegally sharing 24 copyrighted music files accomplished exactly this: nothing. On the same day a jury handed down a responsible verdict and awarded the RIAA $220,000 worth of damages, millions of internet users went merrily about their business and continued using P2P networks to share billions of copyrighted works without as much as stopping to blink an eye. But there are a few reasons why you should care about what happened to Jammie Thomas, the 30 year old single mother who the RIAA turned into public enemy number one in their absurd quest to try and shove the MP3 genie back into the bottle; the tactics used against her are a threat to all of us who use the internet for just about anything, the case against her was fundamentally flawed, and the judge and the jury couldn’t have been any more clueless if they’d been rounded up on Sesame Street.
First off, I’m not a lawyer – but just from reading what’s been reported on sites like Wired and CNet News, the lawyer for Ms. Thomas tried to sell the jury on the idea that the defendant’s IP addressed had been spoofed, even tho her Kazaa username was the same name she’d used for her email addresses and IM identities – the jury didn’t buy it, and neither do I. Yes, I believe Ms. Thomas did share files on Kazaa and the RIAA caught her with her hand in the cookie jar – but that isn’t the real problem here.
What concerns me is how the RIAA is able to find out who we are, including being able to get our IP addresses, the MAC address of our modems and the NIC cards in our computers, and then being able to browse thru the contents of our hard drives to see if they find anything they can use against us later; meaning that the real problem here are the telecommunications companies which cooperate with this modern day Gestapo.
Jammie Thomas used Charter Communications for her home ISP, and apparently we can conclude that Charter was willing to throw one of their subscribers to the wolves. There’s no real clear law that I can find which says that an ISP must cooperate with a private entity (maybe someone can help me out here) – so it appears to me that Charter decided somewhere along that way that it wasn’t willing to duke it out in court with the RIAA over giving up its subscriber details and they simply just capitulated. But let’s back up for a moment.
The RIAA claims that Jammie Thomas was sharing over 1700 copyrighted works, yet it only chose to litigate on 24 tracks. Why not go for the jugular and throw everything at her and hope to get some of what they were looking for? Could it be that the RIAA knew that its case was a longshot at best? It doesn’t make sense. Or maybe, unlike the judge in this case, the RIAA believed that it had to prove an actual transfer of data from one user to another and they only had her on the 24 tracks – that makes a whole lot more sense. Which brings us to the fatal and most dangerous flaw in all of this, the Judge.
In his instructions to the jury, Judge Michael Davis told jurors that that the mere act of leaving copyrighted tracks in a public directory from which downloads was easy was essentially as bad as proving that actual downloads of these infringing files took place. Um, not so fast… that’s not how it works in the real world, and this isn’t The People’s Court Judge Wapner.
In what could prove to be the one thing which saves Ms. Thomas on appeal, this one jury instruction is a potential tipping point, and rightfully so. Wired magazine interviewed one of the jurors in the case, a man who also claims to have never used the internet, and the money quote from this genius was: “I think she thought a jury from Duluth would be naïve. We’re not that stupid up here.” – the juror also claims that they decided her guilt in about five minutes and spent the next five hours haggling over how much money to award the RIAA. No, you’re not stupid… just a fucking moron.
It’s pretty amazing to me that the RIAA came out of this case looking like the victim when their tactics are questionable at best, criminal at worst, but that does seem to be what’s happened here. Without getting too deep into whether or not you should or shouldn’t share copyrighted music, the RIAA is not good for musicians and artists; this is an argument about a bad distribution model and a dinosaur industry desperately trying to retain its monopoly status – but for me the bigger question is about privacy online, which brings me right back to net neutrality.
We’re currently living in a society where the American government continues to push for more access to our communications networks in the name of fighting global terrorism, with warrantless wiretaps and unmitigated access to telecom networks, with a president demanding retroactive immunity for telecom companies and no judicial oversight. How long will it be before the RIAA or some other entity persuades congress to give them the same kind of unfettered access to our data? Think that’s an off the wall idea? Could any of us have envisioned that we’d be where we are right now ten years ago? I couldn’t, so I don’t put anything past a government and court system which believes that the mere appearance of impropriety is enough to slam the door shut.
Some will say, fighting terrorism and file sharing aren’t even in the same ballpark – and they’d be right… now. But what about down the road? What about when AT&T can squelch free speech by informing their subscribers that if you say nasty things about us on the interwebs, we’ll just cut the line and shut you up that way. How do you think AT&T plans to patrol the streets of cyberia to enforce its new fatwa against free speech? How does the RIAA know what’s on my hard drive or what the MAC address is on my cable modem? How, indeed. What’s going to be next? What you can and can’t blog about? I’ve already been thru that one.
A legal defense fund has been set up for Jammie Thomas here, and I’m debating on whether or not to donate, but I think I may. Not because I think she didn’t share songs, but because the implications for all of us are just too important to ignore.
Domo Arigato, Nina - San :)
(go Sox!)