[First published in the Minnepaolis StarTribune on October 06, 2012]
Pirates and Pop-Stars: The Recording Industry Oversteps
by Drew Hamre
This is a story of pirates and pop stars, of Beltway intrigue and an industry we shouldn’t love, but probably do.
It’s also the story of Jammie Thomas-Rasset, the Brainerd mother of four fined $222,000 for downloading and making available 24 songs in a file-sharing application. And it’s the story of Joel Tenenbaum, a freshly minted physics doctorate from Boston U fined $675,000 for posting 30 songs.
If the penalties strike you as outlandish, you’re not alone. Presiding trial judges have called the fines "appalling ... severe and oppressive” (in Thomas-Rasset’s case when the fine reached $1.5-million) and "grossly excessive" (in Tenenbaum’s). However, higher courts have imposed precedents that restrain judges in reducing these statutory damages (which are specified by Congress, rather than assessed in court).
Thomas-Rasset and Tenenbaum both infringed for non-commercial personal use, and Tenenbaum’s judge has questioned whether Congress actually intended statutory damages to apply in such cases. Trial judges in both cases have pleaded with Congress to fix the problem, with Tenenbaum’s saying “something (is) wrong with a law that routinely threatens teenagers and students with astronomical penalties”. Adding insult to injury: no one knows if actual damages exceed the cost of the songs (roughly $50). Under copyright law, however, if statutory damages are applied then actual damages are moot.
(A quick aside to cynics thinking “just declare bankruptcy”: Bankruptcy protection is uncertain, and contingent on court interpretation of ‘willfulness and malice’.)
The lawsuits against Thomas-Rasset and Tenenbaum have been spear-headed not by musicians, but by the RIAA -- the record labels’ notoriously aggressive trade organization. The RIAA last year argued for trillions in damages from file-sharing service LimeWire. The RIAA was a frontline supporter of SOPA/PIPA web censorship, and actually sued Tenenbaum for criticizing the statutory damages (losing decisively on free speech grounds). The RIAA still views mix tapes/CDs as illegal.
The RIAA is a Beltway powerhouse. Since 2009, five key members of the Department of Justice (including the Solicitor General and Associate Attorney General) have come from Chicago law firm Jenner/Block, an RIAA favorite to whom they paid $10.25-million in fees over the last three years. In February 2011, the DoJ actually filed a brief supporting the constitutionality of a $1.5-million judgment against Thomas-Rasset (since superseded).
In November 1999, someone inserted language without public debate into an unrelated bill that potentially made it less likely that sound recording copyrights would revert to the creating artists after 35 years, but would instead remain property of the record labels. Several months later, the person reported to be responsible (a Congressional IP attorney who said he worked at the “direction of his chairman”) joined the RIAA as senior vice president for government relations (chief lobbyist).
Outraged recording artists forced a Congressional Hearing in May 2000, by which time Congress seemed remarkably eager to make the whole mess disappear. President Clinton repealed the change that October.
(A quick aside to anyone thinking the RIAA protects artists: Rosen in her Congressional statement said, “Neither I nor anyone at the RIAA has ever claimed … that we represent artists”.)
In 2008, the RIAA stopped suing individuals like Thomas-Rasset and Tenenbaum. However, these older cases lurch along, pitbulls off the leash. And while none of the forgoing is meant to excuse the infringement by Thomas-Rasset and Tenenbaum (or their subsequent dissembling), it’s clearly time cooler heads prevailed. Punishment must fit the crime.
Congress needs to re-assess statutory damages in copyright law. Current laws were crafted during the initial piracy panic (which ‘flipped everyone’s circuit breakers’ according to an industry CEO). The seas are calmer now. Canada this summer passed a major revision of their copyright laws, and it clearly distinguishes commercial and non-commercial copyright violations and caps statutory damages for the latter at $5,000 per proceeding.
As judges and legal scholars have argued, American copyright law needs a digital upgrade. Not to re-open old wounds, but surely there must be legislators who are (once again) remarkably eager to have this whole mess disappear. And quickly, please.