Remember Jammie Thomas, the single mom that lost her suit against the RIAA and was ordered to pay $220,000 for participating in P2P file sharing? Well, the Department of Justice has told her to pony up.
Although Thomas illegally shared a total of 1,702 songs over the Kazaa file-sharing network, the RIAA only focused on 24 songs. Statutes allow for damages between $750 and $30,000 per infringement, with a maximum of $150,000 for a willful violation. A jury of her peers ordered Thomas to pay $9,250 for each of the 24 songs she “stole.”Not surprisingly, she thought that judgment was unfair and appealed. Thomas argued that since the music labels made about 70 cents per song, she should be liable for only that amount.
The DOJ decided this was absurd. In a brief filed in US District Court in Minnesota, Acting Assistant Attorney General (and Metallica fan) Jeffrey Bucholtz said that damages assessed by the jury of her peers were not excessive.
The RIAA has 26,000 other lawsuits pending. Many previous suits against parents and grandmothers of minors that file share, as well as college students and hackers, have settled out of court for flat fees of about $5,000.
But, inspired by organizations like EFF (Electronic Frontier Foundation), Thomas chose to fight rather than settle. The EFF, an “advocacy” group that is opposed to the RIAA suing P2P users, claims that P2P falls within public policy.
It is one of several organizations supported by the tech industry, which feels that P2P sharing of music files is not a crime.
Thomas’ lawyer, Brian Toder, opted to use the arguments posted on their websites in court, instead of consulting something more conventional—like a law book.
Net result (no pun intended): Ms. Thomas, unemployed mother of two, will either have to pay the full amount or appeal to a higher court. How much of this money will go to the musicians is anyone’s guess. Many artists are still waiting for their share of the $400+ million that labels received from settlements with Napster over five years ago, and more recently Kazaa and YouTube.
THE EFF SOLUTION
Instead of lawsuits, the EFF proposes that the music industry charge a voluntary $5 per month for an all-you-can-eat buffet of music downloading.
Though the site offers no practical details on how to monitor/administrate this system, how the money would be divided between publishers and record companies, how to fairly compensate artists, or the fact that Apple—who controls about 80% of the “player” market—refuses to go toward a subscription model, it does offer historical precedent as to why this should work: the “radio model.”
The EFF says that songwriters got radio to “come in from the cold” by forming “voluntary” organizations like ASCAP and BMI to make payment easy and painless.
It’s unfortunate that whoever researched that suggestion didn’t look into several surreptitious cases, like the one between
ASCAP and the Girl Scouts of America (GSA), wherein the songwriter-run agency shook down the evil cookie pushers for not buying a license to sing “Puff the Magic Dragon” around campfires. Here’s a short “greatest hits” list of ASCAP/BMI arm-twisting taken from Confessions of Record Producer (3rd Edition):
- NASA was contacted for a license by copyright holders of “Mustang Sally” (registered with BMI) after astronaut
- Sally Ride sang “ride, Sally, ride” during a press conference—while orbiting Earth. BMI claimed its territory is “the known universe.”
- ASCAP has been known to threaten legal action for the singing of “Happy Birthday to You” at ice-cream parlors and children’s birthday venues.
- In 2002, BMI sued a bar for having karaoke night without a license. One of the “infringing” songs named in the complaint was “God Bless America” (ironically an ASCAP song).
- In 2004, BMI supported one of its publishers when it sued a website (JibJab.com) for using “This Land Is Your Land” as the basis for a new political satire song.
- In 1999, BMI requested that record stores buy licenses to play CDs while customers shop. It also requested that stores buy licenses every time artists perform their own material during in-store promotions. Stores flat-out refused, daring them to sue. BMI opted not to.
Too bad the EFF doesn’t think artists labels should have the same rights as songwriters.
What? You don’t believe such a well-respected advocacy group (especially on funded by well-educated tech companies) could be so wrong on the fact?
Moses Avalon is former record producer and recording engineer who has worked with Grammy winning artists and received RIAA platinum records. He is now one of the nation’s leading music business consultants and artists’ rights advocates and author of a top-selling music business reference, Confessions of a Record Producer. More of his articles can be found at www.mosesavalon.com.