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Tuesday, January 26, 2010

More about Sony Music v. Tenenbaum

To all my readers:

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?).


Anonymous said...

On the surface I agree with you. It is wrong to steal (if downloading music is stealing is another issue). The issue isn't against whether the law was broken or not but if the law is reasonable. It seems that the fallacy in the law is the assumption that there is direct loss to producers of content (musicians, record labels, etc) for each individual download. This simply isn't true. Many individuals download music simply because it is free. They would never pay for it if they had to. So there isn't a strong correlation between number of downloads and sales lost. In fact many people download to check an artist out, then buy. Or as I have done a few times recently download the album while waiting for the CD to come in the mail. This is the problem with the law, and why it is considered extortion by some to rend a verdict of $20000 per song. That number is ludicrous and in no way relates to damages.

Charlie said...

I have only recently started agreeing with Roy and others on this subject.

In regards to the 20,000 $$$, etc. I agree that it's not like the user did 20,000 $ in damages to the industry. I prefer to think of this fine as a deterrent- as incentive NOT to download illegally. Like a speeding ticket, I most definately didn't do 200 bucks in damages to the state of Texas last summer, but I got fined as much. It's their way of preventing the action from happening, not their way of making you pay for damages. (and I feel dumb for speeding then, I didn't really need to be anyway.

Whether or not you agree that it is morally okay/wrong to get that music for free you should still obey the law. If you believe that law should allow you to download music like that, try to get it changed. For now, obey the law. If I didn't agree that it was wrong to stop at stop signs, it would be wrong to not do it just because I didn't agree and didn't think I would be caught. The proper course of action if you disagree with the laws in place is to try to change them, not break them anyway.

Thanks and please respond!

Jessica said...

About what "Anonymous" said above: Although I generally only download music illegally (gasp!) from artists I don't care about (I support artists that I love), I don't think this is the case for most of the population. I think there is a huge correlation between the number of downloads & sales lost. But I agree that it's ridiculous to fine such a huge amount of money - perhaps the copyright law should be amended. Makes more sense to be fined the amount it would have cost him to download the songs in the first place. What is iTunes up to now, $1.29/song?

Because of illegal downloading, musicians & record companies are being forced to find more creative ways to make money. I like this. For example, at the MM show I went to in Houston - there was a raffle to win a piece of Darren King original artwork drawn on an old drum head. Let's say they sold 300 tickets @ $1 each - the band made $300 on something that would have been thrown out anyway and the fans got a chance to own something rare. Genius.

Now, to be honest, I used to be of the "music is ultimately free anyway so I'm just gonna take it" persuasion, but that all changed years ago when I realized that I too might some day create music of sell-able quality. Perhaps the world just needs a new perspective.

Roy Mitchell-Cardenas said...

Downloading music ILLEGALLY is stealing.

The correlation between illegal downloading and sales lost is more closely correlated than you think. Record companies just don't release records: they fund artist development, give video, radio, and tour support, influence film and t.v. for placements for their bands, etc.

In a crazy way, I see them as modern "patrons of the arts" to a certain extent because of the millions of dollars they invest into artists, many of whom are never discovered.

Yes. In the past several decades, labels have made billions off of artists and definitely should have and should pay artist more off of each album sale, (which actually depends on the contract of the artist). But, generally speaking, record labels have helped launch the careers of tons of artists that you wouldn't have heard of otherwise.

I used to see them as nothing but these huge monsters, and maybe they still are in a certain way, but if they are so bad, why do many of the biggest bands renew their contracts or find new contracts with labels? Because the truth is that artists need the help from the label to have continued success. Very few completely indie artists actually make a decent living of their music.

THEREFORE, look at the bigger picture of entire business when you consider the damages involved and think about the precedent the judge is trying to set with allowing such damages. AND, think about the original intent of the Copyright Act and who it was intending to protect.

Also, if you are downloading music illegally of bands you "hate" or are "unsure" about, actually you are still helping them because labels look at those numbers to help them decide who to invest more money into to.

Also, if the law is not reasonable, which may certainly be the case to some, that does not give any one license to break the law.

Change is good for the music industry. It's sad that many artists are not getting their worth off these new changes (youtube, etc) because the technology moves too fast for the industry to keep up.

Jake said...

First, I agree that illegal downloading of music is stealing; arguments to the contrary seem tenuous at best. I also appreciate that some in the legal system are trying to use their position or voice to make this clear(er) to the general public. But the recent decisions in high-profile civil cases brought by the RIAA are difficult to swallow. For starters, it is baffling that the RIAA would believe that suing their own customers could ever be a good idea. (Although it does seem that someone finally realized the folly of this tact as they have since abandoned it.) The damages rewarded are no better. In fact, there seems to be a disconnect: the RIAA and many others decry the decline of CD sales as single-song downloads (legal and otherwise) skyrocket, but the damages allowed by copyright law are most-closely applicable to illegal copying of whole albums. Indeed, before the rise of the MP3, music pirates would have been duplicators and sellers of entire CD albums. The part of the rewards in the current lawsuits that bothers me is that these are for downloads of individual songs by individuals. I don't know how to reconcile these things.

This certainly doesn't mean that copyright owners (whether they are record label conglomerates or not) should be up a creek when it comes to monetizing their recordings, but I also don't agree that the intent of the Copyright Act was simply to prevent wholesale ripping off. Rather, it was intended to promote innovation and creativity by allowing a designer or creator to recoup their costs - and also profit from their discovery or creativity - while also spurring everyone on to even greater creativity. As I believe you know, it is difficult to be sympathetic with a recording industry that seems primarily content with resting on their laurels and maintaining the status quo by mostly producing derivative works. This is compounded by its collective response (or lack thereof) to the popularity of online content. It is only very recently that the music industry has even become remotely close to rivaling the pirate "industry" in terms of both the ease of access to and quality of the content they make available. Again, this does not excuse illegal downloading, but it does help explain it.

Perhaps I am naive, but I also find it difficult to think of record labels as "patrons of the arts." Their primary concern, after all, is always going to be the bottom line - making money. While there are undoubtedly many record label people who work in the industry because of their love for music and desire to make it heard by others, decisions are ultimately made based on whether or not something will be profitable. The true patrons of the art of music, it would seem, are the amateurs - the paying consumers who support artists simply because they love what the artists are doing. I'm in agreement with Jessica that MuteMath should be heartily congratulated for your enthusiasm in embracing fans and giving us reasons and ways to buy into a brand, an experience, something much more than just an album. The revival of vinyl releases also gives me much joy and provides some hope for the future of the industry.

But big name acts continue to sign with record labels because they have enough clout to demand really good terms to their contracts. And labels continue to offer these terms because they will still make a considerable amount of money off of these big names. Most indie artists, on the other hand, certainly do have a very hard time making a decent living; mostly, though, because they can't compete with the influence of the major labels. So yes, a record label deal can help artists make a living being artists, but I do wonder how much the help would be needed if the major labels didn't have a virtual death grip on the industry.

But maybe I'm wrong. :) These are just my observations as a listener and lover of music.

Anonymous said...

'Downloading music ILLEGALLY is stealing. '

Since you brought it up, no one has successfully been sued in court over downloading music. People are taken to court for distributing something they don't have the right to distribute. That is the crux of copyright infringement, it is not stealing as nothing is physically taken.

In the same light, once something become digital the distribution cost for each item approaches 0. So nothing of monetary value is being taken. Don't get me wrong there is still value in the item, but it is technically worthless. This is my problem with the amount of damages awarded by the court.

I believe that one should follow the laws. And currently the laws forbid such activity. However I think that they are grossly out of proportion with reality.

On a second note it is impossible to know how many copies of a song have been made and distributed outside of controlled distribution. This leads to people making absolute guesses that mean nothing but are taken seriously by those who want them to be meaningful (RIAA) and those who have no idea about technology (judges and juries).

Vintage cab used on MM debut (two 15" Jensen speakers).