Recording industry shows how to lose by winning

As it seeks to fight digital theft, intellectual-property expert Nancy Prager says the music business is waging the wrong campaign.

For the past four years the Recording Industry Association of America has led the charge against illegal file sharing on the Internet.

The collective focus of the organization has been to hold people who upload music to peer-to-peer networks responsible for stealing from its members' organizations. The primary method for enforcing their rights against illegal file sharers has been the threat of litigation.

Now, an important milestone has occurred to add muscle to its campaign against illegal file sharing. A jury found Jammie Thomas, the first defendant to go to trial in an RIAA case, liable for illegally making available 24 songs on the Kazaa network, and awarded the plaintiffs $220,000 in damages.

While victories in the court of law are necessary to preserve the RIAA members' interests in the music they promote and distribute, it is not clear that such victories translate to the court of public opinion. Though she does not make an ideal martyr, anticopyright organizations and activists have held Thomas up as a victim of the tyrannical RIAA, and the greedy music labels.

The RIAA may have lost in the most important court of all, the court of public opinion.

According to Cary Sherman, president of the RIAA, the outcome of the Thomas case will further deter people from illegally sharing music on the Internet. Yet, there are many people who do not know why file sharing is illegal, or even if it should be.

Many attorneys and copy-left activists are looking at the Thomas case as an opportunity for higher courts to consider whether seeding peer-to-peer networks with songs is copyright infringement. In the United States, owners of copyrights have the exclusive right to distribute their works. Entities from BitTorrent to Harvard Business School define peer-to-peer networks as distribution platforms. Therefore, it is not a huge reach that making music available on a peer-to-peer network violates the right of copyright owners to distribution.

The campaign against downloading really should be a campaign against uploading. Technically, the infringing act occurs when a person uploads content without permission from the copyright owner. Thomas' decision to make the songs available on Kazaa was not hers to make.

The jury agreed that Thomas did not have the right to upload the songs, and awarded the plaintiffs $220,000 in damages. The troops have rallied around Thomas claiming that the damages award was excessive.

However, the jurors were aware of the range in which they could issue damages. They chose a value that they thought would not only compensate the plaintiffs, but also perhaps to discourage the defendant from participating in illegal activities.

Regardless of the outcome of this particular case, statutory damages are an important tool for copyright owners as it may be impossible to establish actual damages for copyright infringement. That is, in a decentralized distribution model like peer-to-peer file sharing--Napster 1.0 and Grokster--determining how many people obtained copies of a particular work may be impossible.

Fundamentally, the outcome in the Thomas case will likely cause future defendants in file-sharing cases great pause before they decide to fight the RIAA in court. However, the RIAA may have lost in the most important court of all, the court of public opinion. It may have missed the opportunity to use the case as a means to educate the public about the importance of copyright. Instead, Thomas, and her supporters, will continue to argue that she has been the victim of the abusive tactics of a greedy industry.

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