Thanks for your recent comments on the last
post about the Department of Justice's support
for the ruling involving illegal downloading in
Sony v. Tenenbaum. It was interesting to see
the reasoning behind why some of you agreed
and others disagreed. Because of your comments,
I feel I need to explain my views on this ruling a bit more.
First of all, I think here’s the main problem in a nutshell:
"Many computer users are either ignorant that
copyright laws apply to Internet activity, or they
simply believe that they will not be caught or
prosecuted for their conduct. Also, many infringers
do not consider the current copyright infringement
penalties a real threat and continue infringing,
even after a copyright owner puts them on notice
that their actions constitute infringement and
that they should stop the activity or face legal action."
H.R. Rep. 106-216, at 3 (1999).
Illegal downloading has crippled the music industry,
mainly in terms of CDs sales. Do you know what
it is play a show and not be able to sell your CDs
because bootleggers are undercutting you outside
of the venue? (This happened to a friend of mine
more while on tour in Latin America.) As another example,
about two years ago, I heard from a reliable source
that “Typical” had been illegal downloaded more
than 500,000 times. That is just
one song, on one album, from one artist.
The point is that selling CDs was once a viable means of
income for record labels, artists, and other entities
in the music business, but this has almost completely
vanished. Now, it seems an artist has to work twice as hard
to make half as much.
However, there exists a legal alternative to downloading
music via iTunes, Amazon, and others that thankfully
is gaining ground and becoming increasingly popular
little by little, but because of its ease and supposed anonymity,
people still choose to download music illegally.
So how does the court or record industry measure
the value of these lost sales from illegal downloading?
The current the statutory damages for copyright
infringement range between “$750 and $30,000
per infringed work, with a maximum of $150,000
for a willful violation.” Pub. L. No. 106-160, § 2.
Some may think that these damages are far-fetched
(Professor Nesson calls this extortion
on part of the RIAA in the video below),
but are they? Think about the hundreds of thousands
of computer users who are stealing and infringing on
material that is supposedly protected under copyright
laws, and by the way, illegal downloading is stealing,
which is why I quite don’t understand the moral
stance against this ruling. Let’s remember
Commandment 8: You shall not steal.
What happens to those who steal and are caught?
What is the correct moral path to take to uphold
the code? Well, that depends on which moral code
one adheres to, right? The code that applies here
is the Copyright Act. This is about upholding a statute,
not really about morals.
I think the Court is simply trying to uphold the current statutory
law. The damages are in accordance
to a 1999 amendment made to the Copyright Act,
which was established in 1790 (and as an example
as to the severity in which the statute was originally
designed to treat its infringers, it makes each one
of them liable for “the sum of fifty cents for every
sheet which shall be found in his or their possession.”)
Image what $.50 would buy back in the 1790s. So, is the
original design of severity in the Copyright Act seem
immoral? Does the punishment not fit the crime?
Will I, as an artist, directly see any of this money
recently awarded as damages? No. Of course not,
but that is not the point. The point is to uphold
copyright law and to teach the public that copyright
infringement is a serious offense (both civil and criminal
– “Congress’ intent to create a civil remedy of
statutory damages is further evidenced by its
inclusion of a separate section within the Copyright
Act establishing criminal offenses and penalties for
infringement.”), and if illegal downloading is
lessened because of it, I will indirectly see this
money because my whole industry will gain from it.
Also, Defendant Tenenbaum argues that “the Copyright
Act’s statutory damages provision is unconstitutional
as applied to infringers who do not seek commercial
gain because the damages it authorizes are
disproportionate to the harm caused by non-commercial
infringement.” However, the Court concludes that
“the language and history of the Copyright Act
demonstrate that statutory damages may be awarded
against an infringer who does not seek to profit from
I encourage you to read Memo from the DoJ (linked above), and
watch the two videos below. Please, let me know what
you think. By the way, pay particular attention to what Oppenheim
says about Tenenbaum's changing stance, and Nesson's
views of the RIAA (the RIAA posed as a traffic cop giving out
unwarranted tickets, really?).