Saturday, October 06, 2007

RIAA Continues Its Uphill Battle To Alienate Customers

This past week, a landmark decision was made in federal court that currently sets a new precedent for two types of cyber crimes, file-sharing and computer hijacking. I wish I could say I've been following this case since it first broke in 2005 like most people say they have, but quite frankly, I've had better stuff to do with my time and attention, like not much of anything, really. That didn't stop me from not keeping up on this case until I read on several people's blogs that the verdict came in. I blame the court system for this. In a country that guarantees us a swift and fair trial system, the average civil case can take more than two years just to go to court, by which point the ADHD news media has focused its attention on newer and shinier distractions.

For those of you who, like me, haven't been following this case too closely, the gist is that a Minnesota mother of two was accused by the RIAA of file-sharing. She contests that she was the victim of computer hijacking and took the RIAA to court. The RIAA had a good laugh out of it because they are a multifaceted corporate conglomerate that can afford lawyers that could unequivocally prove to you that you don't exist, and they enjoy suing people who can typically afford lawyers that are having trouble holding onto the cars that they're living out of. So it stands to reason that the jury considered the evidence and decided that Jammie Thomas was, in fact, guilty and had to pay a considerable fine to the RIAA.

Honestly, I have no idea whether or not Jammie Thomas was a victim of computer hijacking, which she claims. That's primarily something that only she truly knows and has to live with. However, the prosecution did provide an abundance of evidence to the defense's lack thereof. For instance, the defense speculated that IP addresses can be spoofed and proxied, but the prosecution provided evidence that Jammie Thomas had been using the KaZaa service from a password-protected computer with a user name that she'd used across multiple websites, and that the songs in question did in fact reside in her shared folder. So yeah, she was probably guilty.

However, I'm not necessarily convinced that she intentionally shared the files. You have to keep in mind not everyone adapted well to the Information Age. Some of us haven't been using computers since the Eighties or even early Nineties. In fact, I find most people's lack of computer savvy distrubing to the point of frustrating. I've known plenty of thirty-year-olds who don't even know how to scan their computer for spyware or never to click on a banner ad, no matter how enticing it might seem. This is a mother of two, which means she has had better things to do than learn how to use a computer, like a social life.

Allow me to paint the members of the jury a different picture of the sinister criminal mastermind that I'm sure the RIAA made her out to be. She's working a middle-class wage slave job and struggling to provide for herself and her children. People at work keep talking about downloading this and that and convince her that she can save a lot of money on disposable pop music with a peer-to-peer platform like KaZaa. They convince her it's a victimless crime and no one ever gets caught, so she decides to try it. Unfortunately, not being quite as knowledgeable on advanced technological concepts like file sharing and having too pressing a social schedule to, you know, educate herself on the laws governing what she's doing or the features of the programs she's using, she just installs the program, searches for songs, downloads and enjoys.

A lot of people are guilty of this. They'll just download a program and select the "express install" option without concerning themselves on what's being installed on their machines. That's how so many people end up with five hundred toolbars on Internet Explorer that make the program take a day and a half to load. So she likely had no idea that the default setting of these peer-to-peer programs allow other users to upload from their download destination folder. In fact, some people are foolish enough to let the programs search their hard drive and allow uploading of any folder that has some form of media file inside it. She probably didn't even know that she was allowing music to be uploaded from her machine, and just assumed she was the victim of computer hacking, when in reality she was just the victim of her own stupidity. Unfortunately, if she were truly facing a jury of her peers, then her fate was probably being decided by twelve people as technologically inept as she was, and such points were likely never brought up in their deliberation.

Of course, in a country where we sentence the mentally handicapped to death, I suppose ignorance is no alibi, but I do think intent should be taken into consideration when deciding punishment. With that being said, I think $220,000 is a bit excessive for the 24 songs they were able to charge her with sharing. Many say she lost the case and are apalled at the amount of the judgment, being five times the woman's annual salary, but in a way she did win. She took the RIAA to court to get out of paying upwards of $3.6 million in fines, and $220 thousand is far less than that, even with lawyer fees.

The problem I have with the judgment is that it seems a bit excessive. At $9,250 per song, the RIAA really made out with this punishment. Considering that they generally charge around one dollar per song for a legal Internet download, they're asserting that each of the 24 songs would have to be uploaded from her computer by 9,250 people. Of course, the prosecution asserted that, "We don't have to prove who got the file from the defendant." So what they're basically saying is that they are just suing KaZaa users from a list at random, whether or not they have any evidence that the user actually committed a criminal act. They are literally claiming that they don't have to prove that the defendant broke the law in order to sue them!

Bear in mind here that downloading music is still as yet not a crime, only uploading. When downloading music, you're simply taking advantage of what is out there. It's like finding a $5 bill on the sidewalk or using an antenna to intercept a radio signal. However, when uploading, you're willfully offering copies of the files to be downloaded by those who wish to take advantage of it. That is where the RIAA and MPAA will get you. The propogandist commercials that inform you that "downloading copyrighted material is a crime" are technically wrong. Uploading copyrighted material is the real crime, and even then it's not technically a crime, otherwise the cases would be tried in criminal court and not civil court.

This still doesn't change the most apalling outcome of this whole mockery of justice, that the prosecution asserted that they don't have to prove their rights were actually violated in order to claim compensation for their rights being violated. That's like suing someone for shooting you and claiming you don't have to prove that you were ever really shot. The jury allowed them to set a price for each song of $9,250, which is 770 times the average cost of the CD that the song came from. Last I checked, that is far greater than the song is actually worth, and the worth of the music depreciates inversely by its popularity to the point where the average Justin Timberlake or Natasha Bedingfield song would be worth a sixteenth of a peso.

If they sued me, I would set a new precedent in the RIAA's uphill battle to alienate their customers. I would force them to prove their rights were violated, and I would demand to only be charged for the number of violations, in other words, per each time the individual songs were uploaded from my computer. It would be the only fair and just punishment. For them to claim that I was stealing from them and in return steal from me far more than the gross worth of their product is a far greater injustice than it would be for me to actually steal from them. Also, I sincerely doubt they could absolutely not provide the evidence I require, and if they did, I would countersue them for illegally monitoring my personal computer. I would require them to provide proof that their figures were in any way valid or accurate because, frankly, unsupported mathematics is bullshit.

Of course, in saying all of this, I am in no way claiming to have engaged in any illegal activity. I am merely declaring my intended course of action were I ever accused. The ongoing saga of file-sharing is fascinating to me in its legal ramifications. Like most people I would actually like to see the RIAA fail hard because they're primarily a middle-man conglomerate of businessmen who have little to do with music but claim all the creative rights and most of the money for the hard work of the bands they claim to promote and protect. The labels spend more time flooding the market with fabricated disposable pop musicians who insult the intelligence of their fans with shallow, unintelligent drivel backed up by computer synthesized music than they do promoting real and talented artists and bands, and they keep most of the money for themselves. I'm not going to do anything illegal to protest the RIAA, but I guarantee you I'm going to follow these court cases and laugh every time they fail.

So a middle class working mom will have to do without luxuries like food or clothing for her two children to pay an arbitrary figure because a record exect might otherwise have to go with the 1918 bottle of Merlot instead of the 1916 for his meal one evening. Let this be a lesson to you: Never, never, never upload from your download destination folder. Most programs set this as the default; change it. Of course, a lot of users won't let you download if you're not uploading, but most of them only check to see if you are uploading, and not what you're uploading. Fill a folder with a bunch of public domain stuff and set it as your upload folder. That way you're not uploading anything that's illegal to upload. This shit's not hard. It just takes a minute to educate yourself and think about what you're doing before you start doing it.

np: KMFDM - "Tohuvabohu" (On an actual CD. That I bought.)


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