Some of our regular readers may have noticed my conspicuous absence from the blog for a bit and it is high time I revealed the reason. For the past month or so I have been working with Professor Charles Nesson of Harvard Law School in preparing a plea to the Supreme Court to hear the case of Whitney Harper, the “innocent infringer”. Our plea takes the form of a petition for certiorari to the United States Supreme Court, just recently filed by her lawyer, Kiwi Camara, and will take further shape in the expressions of support we can gather for it.
Whitney Harper is one of the 40,000+ targets of legal action the RIAA has brought against ordinary Americans in downloading music for free. Each one of these is a classic case of the little guy against giant multinational corporations. An army of lawyers with essentially limitless financial resources against individual defendants with pro bono lawyers.
These battles are fought in a legal system that cares little about what is just and appropriate for the Internet Era. All the while, legal precedent is being shaped that is unnerving for those who care about the future of music and the freedom of the internet.
Whitney Harper’s case is important, though it has yet to be noticed. If upheld, the decision essentially makes downloading of copyrighted material a strict liability offense when the plaintiffs only seek the statutory minimum of $750 per work. A recent study found that the average British teenager had 800 illegally downloaded songs on their iPod. This means that each teenager in the UK is liable for $600,000 on their iPod alone. If you spread that out over the 40,000 or so lawsuits already filed by the RIAA, that equates to roughly $24 BILLION.
As yet, the RIAA has only requested damages for a handful of songs in each case. However, the labels may be less generous if the judicial system supports their arguments. Furthermore, it would be bad policy to continually rely on a plaintiff’s beneficence to litigate only a small sample of the files they are entitled, especially when windfall judgments are all but guaranteed.
Moreover, if it goes unreviewed this case provides a key step in the legal logic that will be used to justify ISPs terminating users’ net connections for violating copyrights. It would effectively disallow defense of any kind based on innocence.
Ireland has become the first country to implement very aggressive “internet filtering” policies. Under this scheme, Eircom—the largest ISP in Ireland—receives a list of IP addresses from IRMA, the Irish Recorded Music Association. Infringers are sent warnings through their ISP and after three strikes their internet service is shut off. Obama is prepared to put the frame work in place without consulting the House or Senate.
A leaked draft of the ACTA convention contemplates criminal liability for inciting copyright violation (prison as well as fines), creates oversight panels, and contemplates institutionalized surveillance of data traffic across the internet to enforce these policies.
The Background
Whitney Harper was 16 at the time of her infringement and understood KaZaA and other filesharing programs to be akin to listening
on a legitimate internet radio station. In fact, at the time KaZaA claimed to be “100% legal” on its site. She had no intent to possess the music, let alone share or distribute it. The district courts decided that there was a genuine issue as to the character of her infringement and allowed her to press what is known as the “innocent infringer defense”. This allows the courts to reduce the statutory minimums from $750 per infringed work to $200.
The labels fought this by arguing that notices appeared on the legitimate CDs available at record stores. According to copyright law, when a notice appears “on the phonorecord or phonorecords to which a defendant…had access” no weight shall be given to an innocent infringer defense. The district court found this reasoning to be lacking since the media involved were mp3 files without copyright notices on them and the CDs themselves were never in the equation.
On appeal, the Fifth Circuit reversed that aspect of the decision and the minimums were raised to $750 and made automatic in the sense of eliminating any need for a jury trial. They found that notice on CDs, which the defendant never saw, may not have known existed, and was too young and untutored to appreciate were sufficient to foreclose the innocent infringer defense as a matter of law. As such, the qualities of a defendant—age, education, understanding of the situation, cognitive abilities, etc—have no bearing on the application of law and assessment of damages on the basis of the industry’s internet investigation.
Why this is a Terrible Decision
Many of the relevant sections of the copyright laws were written before many of us had computers in our homes and before the spread of the internet. This was during the transition from analog to digital and no one writing the laws or otherwise foresaw the ability of exponential duplication. At the time, there was no way to duplicate music without having a physical object in front of you. Under these circumstances no leniency need be granted to a sentient person who willfully chooses to ignore a warning in their hands, in front of their face that says “HEY STUPID DON’T COPY ME!!”
The appellate Harper decision extends that notion unreasonably far by taking the notice out that person’s hands, out of their home, and putting it across town or maybe even in another town altogether. Under the Harper decision, everyone is beholden to a warning that they may not understand, may not know to look for, located on an object that they may not know exists, located in a store that they may never go to. All based on some metaphysical possibility that there is “access” to copyright notice somewhere out there in the ether.
Copyright is not generally addressed in an academic setting until college. Furthermore, there is the very real possibility that the youth of today has never and will never hold a physical CD or set foot in a real record store. As such, it seems that an individual’s mindset and experience should have a very real bearing on the outcome of these cases. Not according to the Fifth Circuit—as long as CDs have notice on them, whether you’ve seen them or not, whether you are old enough to read or mentally capable enough to understand, you are responsible for the strictures of copyright.
But not every CD sold at a record store contains copyright notice. Just a cursory glance at my personal collection reveals a shocking number of very high profile records without any copyright notice on the outer container: Antony and the Johnsons Crying Light, Arcade Fire Funeral and Neon Bible, Deathcab for Cutie You Can Play These Songs with Chords, The Decemberists Castaways and Cutouts, Sunny Day Real Estate Diary, Wilco Yankee Hotel Foxtrot.
Even the district court agreed that some CDs or even the majority of CDs possessing copyright notices on them does little to establish that downloading is illegal. The court also found that there was a genuine question as to whether or not Harper would have or should have known that such notices were applicable in the situation as she understood it. The appellate court disagreed.
The Importance of this Case
If the appellate decision holds up, it means that no further information can be or needs to be taken into account in a filesharing case. It will affirm the sufficiency of “access” as defined in the Fifth Circuit. This essentially becomes a legal shortcut to acquiring damages. All a label needs is a private investigatory body like MediaSentry to supply their lawyers with a list of filesharers to sue. If defendants can’t dispute ownership of the files, then that is all the courts need to file summary judgment, without hearing any arguments, without going before a jury.
Ultimately that is what the labels and copyright industry want—fewer questions and fewer nuances. Many of these cases request only the statutory minimums. The reason is that if the labels do not ask for anything above that, then there can be no legal question as to the severity of damage done by filesharers. There can be no questions of constitutionality, exorbitance, injustice, or impropriety. If this decision stands, then filesharing cases will become a streamlined, disinterested, purely mechanical process.
Why You Should Care
Many artists, including Jason Mraz, Steve Winwood, and Heart, have said that they support filesharing. Others such as Adam Duritz, Annie Lennox, Chuck D, Peter Gabriel, David Gray, Pink Floyd’s Nick Mason, and The Clash’s Mick Jones have indicated that they do not believe the public should be prosecuted for downloads.
Whatever your views are, you do not need to condone filesharing in this case. Innocent infringement does not absolve liability. It is still an admission of guilt, but it allows a decrease in the statutory minimums if mitigating circumstances are allowed to be heard and deemed to be germane. Defendants are still forced to pay a minimum of $200/song, which many would agree is sufficient in any case of filesharing if not still exorbitant. But most importantly, allowing a defendant to press innocent infringement affords them the opportunity be heard by a jury rather than fall victim to an automatic process that controls the outcome of the case, the damages, and maybe their internet connection.
This petition does not attempt to question the legality of filesharing, nor does it attempt to call into question the fairness of the laws. All it asks is for the preservation of an enclave for innocence.
Artists should not condone their labels using their music to litigate against and alienate their audience. Do not give them a free pass to fleece your fans. If you believe that filesharing could be a useful tool in connecting with your audience, the Harper decision creates a world where your fans would be and should be afraid to download anything you put out on your site, on P2P, or anywhere else on the net. If you support a free internet, you should not condone a legal precedent which allows something you’ve never seen at some non-uniform location out there in the universe to hold you responsible for actions that violate its orders. The consequences are apparent in Ireland and could very well become apparent here in the states in the near future.
But in the interest of the case at hand, as a society we should not condone a world that throws the book at someone who knows not what they do, who intends no harm in their actions, and whose accuser makes no specific claims of intentional or inadvertent harm. Our legal system should not be used to play Gotcha with unwitting citizens and entitle their tormentors to unjust, bankrupting windfalls.
Forget the I/Os, forget the gear (for now). Heck, even forget about the talent. In today’s music production world, you cannot record anything of any kind without a good computer. For the audiophiles out there, I too am a tape guy when the opportunity presents itself. However, the availability of the medium coupled with budgets and real-world artist demands often preclude the use of our beloved reel-to-reels.
I knew it was going to be loud. I think I knew it intuitively just from the clues hidden in the mix of their timeless album Loveless. I definitely knew it before I heard people in the parking lot spreading apocryphal stories about audience lawsuits over hearing loss.
My girlfriend and I met at a Swell Season concert. Many of you might know them as “that band in the movie Once” that won an Academy Award for Best Original Song from a Motion Picture, but they are in fact a real couple with a real band making real music.
In practice this is totally false. In fact there are a number of CDs that sound absolutely horrendous in the car—The Who’s 2006 release Endless Wire comes to mind (which is a shame because Pete Townsend takes the time to outline every piece of vintage gear that they recorded and mixed with in the liner notes; proving once again it’s not what you have, it’s how you use it). But still, the car listen is a pretty decent barometer in most cases.
A friend of mine is an exceptionally talented bass player. He’s played all over the world with musicians from Michael Brecker to Andy Timmons and he’s also an excellent storyteller. One day we were hanging out and he started reminiscing about this gig he played during apartheid in South Africa. He began by saying that he had this six-month contract to play as the house band at a nightclub.
