Starting today, I am a full-time law student.
While I don’t think my experience will be as devastating as The Paper Chase or even Legally Blonde, the time requirements will mean that lots of extra-curricular will be replaced, including, most likely, frequent contribution to this blog. I have made a promise to myself to keep writing, but I’m holding to a once-a-week commitment, as opposed to my previous constant stream of rants. I hope you all understand, and I’m sure there are no shortage of other things to read.
That said, I have an open challenge left unanswered from last week, and I want to take the time to go over it.
Longtime buddy and partner in mischief Jared Simons is a very bright young political mind, currently working for the UN in New York (you should ask him about meeting Mahmoud Ahmadinejad). He recently posted an idea about how to handle a problem with copyright and asked for my comments. His thoughts are as follows:
My suggestion is that in the day and age that digital music is very quickly becoming the industry standard, if anyone wishes to protect their songs via copyright they should put an audio warning on each individual track. [...] Obviously most people would HATE the fact of needing to listen to even a 3 second warning at the beginning of each track saying something like, “By the way, this track is IP of someone, and illegally downloading it constitutes an infringement of copyright, and we’ll sue you if we find you.”
Jared’s comments stem from a recent RIAA case known as Maverick v. Harper. In this case, the defendant (who was 16 at the time of infringement via Kazaa) did not deny infringement, but claimed the often-forgotten “innocent infringement” defense, found in 17 U.S.C. § 504(c)(1), which states, in part:
[...] In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. [...]
Contrast this (as Be Kind Rewind did so majestically) with the maximum statutory fine for infringement, which is $150,000 per act, and don’t forget that a frequent scare tactic of the RIAA is to suggest that all of your college-aged downloads each worth of this bankrupting fine. “Innocent infringement” certainly does mitigate.
Now, the burden is on Ms. Harper to prove that she was not aware that her infringement was illegal. And let’s be clear: it was illegal. While some may be naïve, by now it has been drilled in the skulls of kids just a little younger than Jared and I that downloading copyrighted material that (the owner does not license for downloading) over a P2P network is infringement. But this wasn’t so clearly the case until Napster was shut down in 2000 and the lawsuits began, and even then it took our generation of college entrats to spread the message around. Even when I was entering school in 2003, residing in Kennedy Hall – the very dorm in which Shawn Fanning developed the Napster protocol 4 years before – I was educating my fellow residents about the law as it pertained to our love of Direct Connect and the other P2P networks du année. It’s a tough burden of proof, but she can do it.
Whether she’ll be able to have her success spread to other cases, however, is a whole other question. As we saw today with Elektra v. Barker, the RIAA will settle on cases where there’s a chance the ruling will generate some case law against stances the Association has on issues like innocent infringement and “making available,” a subject I wrote about extensively here, here, and here.
Since the burden of proof in “innocent infringement” is on the infringer, and copyright stories get increasingly larger news coverage as more and more students (and grandmothers and 6 year olds) are sued, Jared’s proposal effectively illustrates a way in which the RIAA could more or less wipe away any chance of sustaining an innocent infringement defense. And while Jared openly invites me to “rip [his] argument to shreds,” the raw, fundamental principle of what he’s suggesting is something I believe in: people need to understand copyright, at a consumer level, better.
Let me rephrase that. People need to understand and be reminded of a total picture of copyright. To some degree, that means going back to the fundamentals of copyright. For example, people should know:
- what specific types of works are protected, and which are not.
- how copyright comes into existence, and from that realize that they too already own many copyrights. This isn’t a strict producer/consumer relationship. This is the interchange of expressions.
- what rights come with copyright, and which do not.
- what the damages are for violation of copyright, not only in terms of maximums and minimums, but what they realistically come out to be in common law.
but more importantly, people should know:
- what rights consumers have over their purchases of copyright material (e.g. Fair Use and the First Sale Doctrine)
- what alternatives are offered to the standard reserved rights (I’m speaking here of Creative Commons and open-source), and that creators do use these frequently.
The standard talking points of the RIAA, MPAA, and other Big-IP groups suggest that the mere act of going onto a P2P network will find you in court. Truth be told, that isn’t the case. For example, the Creative Commons license I have used for most of my recorded music and photographs provides that you can copy, share, and remix these works of mine however you see fit, provided you give me credit for my source material, you do not use them for commercial purposes, and you share your end creations under the same license. So, should you hop on Limewire and download the latest tracks by me, that’s fine. If you download a text file of Moby Dick, or Hamlet, or the score of Mozart’s Fifth, or Night of the Living Dead, you’re fine. These are all in the public domain in the United States. There are many other exceptions, which may fall under Fair Use and other defenses.
But, you don’t hear this from Big-IP. You hear phrases such as, “Federal Law provides severe criminal and legal penalties,” or “Criminal copyright is investigated by the FBI,” and “a felony with a maximum penalty of five years in prison and/or a $250,000 fine.” The NFL got itself in some hot water for overreaching copyright claims last year from the FTC, as Ars Technica so masterfully reported. Here is where Jared’s audio-fingerprinting also would fail: you’re asking the industry to regulate itself. Be it energy, transactional business, finance, or intellectual property, we have yet to find a circumstance where that succeeds.
There are a multitude of other problems I see as well, for less legalese reasons: interference with the artistic integrity of a recording, interruption of the listening experience which degrades the medium, the likelihood of a program coming along which just snips off the message as programs have with DRM and watermarking, and so forth. But ultimately, the root of these problems is the same, and were I of more clout I would challenge any copyright statement that does not acknowledge the rights granted by law for those of us who are using copyrighted material.
So, while Jared’s idea may have some big devils in those details, the principle of education is great, and efforts to educate are underway. I am very proud of the work I did at the Volunteer Lawyers for the Arts of Massachusetts, founding the Teen Art-Law project aimed at educating youth in Boston High Schools about copyright and music. Our curriculum intentionally focused on the positive rights of songwriters and recordings, and how they could protect their own ideas as opposed to preaching to them about downloading. Here at GWU we have a chapter of the national organization Street Law, whose mission is to teach high schoolers about law and advocacy through engaging classroom interactions. While they are more focused on general criminal law and advocacy, they could easily provide for seminars on copyright. Right up the road we have American University’s fantastic Center for Social Media, which has published many quality articles on the issues of copyright for social media creators.
But more can be done for those of us who aren’t in high school, or actively engaged in social media. Perhaps, to twist the idea Jared put forth, rather than putting a copyright notice on songs, we have an artist create an advocacy/protest song about your truthful rights that will spread amongst the masses. Dare we also ask that she or he license it for free distribution so others can copy it and spread the message? This idea of practical messaging is nothing new in music, but has yet to be done effectively in the field of copyright. The Kleptones piece above is excellent commentary, but does not offer any practical advice.
So come on, musicians, let’s make an anthem. Here are some songs to inspire:
