for using her broadband connection to share 24 copyright-protected
songs. The case was most notable for the fact that after refusing to
settle for an initial $3,000, Thomas lost her case and was told she
needed to pay $80,000 per song — or $1.9 million. A U.S. district
court has now significantly reduced the amount of money Thomas must pay
down to $54,000, or $2,250 per song. Thomas’ attorneys say they haven’t
decided to challenge this penalty as well, while an anonymous source
tells CNET the music industry is simply interested in seeing
this case go away, and “don’t want to spend any more resources
challenging Davis’ decision to lower the damages.”
(For a full recap of Nesson’s bizarre defense strategy, read Copyrights and Campaigns by Ben Sheffner, who has been following the case closely.)
Nesson’s response, which is charitably described by Sheffner as reading “like an impassioned blog rant,” denies that he has overshadowed the issues at hand and that he will “continue to try to make as much of this case open to the internet as is possible under the law” since “the capacity to inform and educate the digital public is at the heart of this case.” Essentially, Nesson does not want the case to be about whether or not Joel Tenenbaum broke the law, but whether copyright law is fair.
Actually, Nesson takes this a step further:
The issue presented here is not only whether Joel Tenenbaum unfairly infringed copyright by sharing in music free on the open net. It is whether an entire digital generation did so and whether Joel will be individually punished for it. That generation needs to hear and see a case made on its behalf. The world needs to see and hear it.
This argument seems pretty disingenuous. There are a lot of people around Joel Tenenbaum’s age who never “unfairly infringed copyright by sharing music free on the open net” and probably even more who were swept up in the Napster craze but stopped sharing music when they understood that it was illegal. These people probably would not appreciate being accused by Nesson of having “unfairly” shared files, nor would they likely appreciate Nesson appointing himself as their spokesperson. Joel Tenenbaum isn’t being held individually responsible for a collective action, he’s being held responsible for his individual action of downloading copyrighted material. To act as though this case is about an entire generation is kind of like saying that individual speeders on the highway who get caught are being punished not only for all other speeders, but for all other drivers. It doesn’t make sense.
It’s the classic “but everybody else does it” defense. We don’t accept that from our children. Especially when it’s not remotely true.
Whether or not you buy Nesson’s argument that he’s protecting Joel Tenenbaum from martyrdom on behalf of everyone under thirty, one thing is clear: the Tenenbaum trial is now officially The Charles Nesson Show, and it promises to get more interesting as the drama–and legal hijinks–unfold.
How interesting will the trial get? During written discovery (PDF) in the Tenenbaum fair use defense, Sony presented the image of Nesson below, by asking Tenenbaum to “admit that the image attached hereto as Exhibit 1, with the caption, ‘Destroy Capitalism, Support Piracy,’ is a true and correct copy of an image that was posted to the Internet by your counsel.”
The problem? The movie was already available over P2P networks, no ticket necessary.
Now maybe none of the people who are sharing that particular movie illegally online would have gone to see it in theaters, so maybe the rainforests didn’t actually suffer much for this particular file being available online. But it certainly underscores the point that piracy of copyrighted content doesn’t just harm our digital society; it can even have a negative impact on the rest of our world too. And that’s a shame.
Underscoring that point, Sandoval cites Arts+Labs’ own Mike McCurry about the very real cost of piracy:
“There might be just a point here where the culture is changing on what’s legitimate behavior online,” said Mike McCurry, the former White House press secretary under President Bill Clinton and co-chairman of Arts+Labs, a collaborative group of technology and media companies. “I think perhaps something of a tipping point has been reached where people are finally saying that activity we thought was just okay or skirting around the edge has tipped over into something both dangerous, criminal, and unfair.”
Of course it isn’t the big stars or the label and studio executives who are hurt most by piracy, especially during a recession, as CNET acknowledges:
The tab for all that so-called free content is being picked up by stunt men, makeup artists, secretaries, sound engineers, editors, truck drivers, and lots of other people who work for media and entertainment companies, according to the executives. They maintain that at a time of massive corporate cutbacks and layoffs, media and entertainment firms have to cut a little deeper because of piracy. So, the stakes are higher now for content creators.
So what’s the way forward? If this is the tipping point, how do we knock the piracy racket all the way over? NBC Universal’s Rick Cotton says collaboration and experimentation by both ISPs and content creators are the key:
“What’s important is all the creators of the broadband Internet be working together to reduce pirating activity,” Cotton said.
We couldn’t agree more. Those who want to address piracy effectively support both consumer education and business experimentation to find new business models.
What can be said? We are certainly sorry that it came to this point. It did not have to. The desire to access and share content can be fulfilled without violating the rights of artists and creators. The right of artists to earn a fair living from their work has been vindicated. We are very glad to see that.
At CNet, Arts+Labs’ “Rick Carnes, president of the Songwriters’ Guild of America, said he and everybody else “put out of business by cyber-looting” was smiling after the verdict.”
“I would like to tell the Pirate Bay the same thing everybody has told us for the past 10 years,” Carnes said. “They should go out and find a new business model, one that doesn’t involve profiting from stolen property…What everybody who steals music should realize is that e-looting is not a victimless crime. Everyone who does it is hurting themselves. They are killing the music.
“They are turning the Internet into a cyber Somalia,” Carnes continued, “and that doesn’t do any good for anybody.”
Our digital society is stronger when the rights of our artists and creators are secure. We applaud the Swedish court for confirming these rights.
So, we are delighted to see confirmation of our take in Newsweek’s read of the conventional wisdom.
Read the full Newsweek CW report here.
On Friday, Arts+Labs executive director Coley Hudgins talked to CNET about some practical advice for keeping your documents safe from prying eyes on P2P networks:
Another potential risk comes from programs that may be on the computer that you don’t know about, and not just malware. For instance, if teenagers using the same computer that the tax preparation is done on have downloaded peer-to-peer software make sure the settings on the application do not allow for access to areas on the computer where sensitive data, like tax information, is stored.
Given the propensity for inadvertent file sharing, it might be wise to not use peer-to-peer programs on the same computer where tax data is located, said Coley Hudgins, executive director of Arts+Labs, a venture formed by Microsoft, Cisco, AT&T, NBC, and the Songwriters Guild of America that opposes the use of peer-to-peer networks for sharing copyright-protected content.
Of course the best way to make sure you aren’t sharing things inadvertently on file-sharing networks is not to use them, especially since so much of the traffic on P2P networks is illegal, copyrighted content. If you want to steer clear of cyber criminals, it’s a good idea not to use web applications that overwhelmingly traffic in stolen content.
But, as Coley told the Wall Street Journal, users who insist on using P2P applications should “take the time to understand how the software you downloaded works.”
As it is in many cases, a little education goes a long way.
But as Ross rightly notes, merely sending notices about infringement is a far cry from a three-strikes proposal, and AT&T has been emphatic about saying it has no intention of cutting off subscribers. AT&T’s CEO Jim Cicconi made this pretty clear, saying, “AT&T is not going to suspend or terminate anyone’s policy without a court order.”
The reality is that sending notices about copyright infringement is very effective consumer education. As Cicconi explained, “In most cases the behavior changed immediately” after receiving a notice. “It validated what so many of us knew instinctively: that so much of this is kids doing it without their parents’ knowledge.”
That’s good news. At Copyright Alliance, Ross points out that “most of us can be persuaded to play by the rules when it no longer seems to be in our interest to break them. The effect of these letters show that.”
Response to the letters also underscores the intuitive idea that once people understand that they’re breaking the law and learn that they have a reasonable alternative, most people don’t want to infringe copyright. That’s a big part of the reason there’s so much experimentation right now on the part of content creators and distributors to make their products available to as many people as possible.
The best way to address bad information is to provide good information. It’s hard to understand why the critics would object to AT&T and other ISP’s providing good information to consumers. If ISP’s can help reduce illegal activity and piracy by educating consumers, that is a win/win situation for everybody.
Unbeknownst to users, many P2P applications can make all of the files on a user’s machine or network available, not just the songs and movies that users intend to share. They’re also sharing tax returns, online shopping receipts, bank statements, passwords, credit information, and more available to the identity thieves and cybercriminals, who eagerly prowl P2P looking for these lucrative nuggets. That’s a lot to give away in exchange for music than can just as easily be acquired at a low cost on sites like iTunes, Amazon, Rhapsody, and other online music stores. The copyrighted material may seem to be “free,” but the price of getting it illegally can be quite expensive.
Of course that’s bad on an individual scale, but it’s nothing compared to what could be in store for the owners of computers infected with the Conficker virus. McKinnon explains:
Once activated, the virus will link together a massive network of hijacked computers that could be used for any number of nefarious activities. One of the more startling possibilities is that it will enable the virus’ creators to search and access the information in every file on every one of the infected computers. Think of it as an underground and malicious Google that would mine the world’s computers for financial and personal data, and then sell it to the highest bidder.
That wake up call is certainly a grim silver lining.
One family’s tax return was accessed and their $2,000 tax refund – money they needed for their college fund – was stolen. We’re glad that NBC helped the family get their refund back. Unfortunately, there is no word on compensation for the artists whose songs were being stolen. Their children also have college funds that suffer when their content is stolen.