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The Truth About Duluth


Well. The first music file-sharing case has come and gone. A 30-year old single mom in Duluth, Minn. was found guilty of copyright infringement for having 25 songs on her hard drive, and was assessed damages of $220,000. The woman claims steadfastly that she didn’t do it. And the case is interesting in all sorts of ways.

For example, if she had taken, say, 25 double cheeseburgers from McDonalds (which carry the same $.99 price tag), do you think she’d be holding the bag for over 200 grand? The jury that hung the lady included five people who owned MP3 players and several who didn’t own computers and had never been on the Internet.

The RIAA trotted in a number of experts and recording industry executives to make their case. Sony counsel and witness Jennifer Pariser testified that she had personally “seen” thousands of Sony employees lose their jobs because of piracy. Imagine! I wonder how many Sony employees she has seen lose their jobs because Sony put spyware in its CDs, or because Sony price-fixed the prices of its CDs with other labels, or because Sony was deeply involved in a radio-payola scandal, or because people avoid buying Sony products because Sony has this pernicious habit of suing its own customers, or because Sony, like the rest of the major labels, has pretty much stopped developing artists and instead drops an endless supply of dreck on us, for example, don’tmakemesayhernameOKIwill, Britney Spears??? Just askin’! Pariser also played for the jury an “authentic recording” of Journey’s “Don’t Stop Believin’ ” along with an illegally downloaded version of the same song, while swaying back and forth to the groovy Journey beat!

The judge denied the RIAA’s bid to put its chief counsel Cary Sherman on the stand, saying he wouldn’t contribute any relevant information. Must have been a long, lonely plane ride home from Duluth. To counter the RIAA’s inference that the defendant had ditched her hard drive to rid herself of incriminating evidence, the defense put on the stand a card-carrying member of Best Buy’s Geek Squad, in uniform, to testify that he’d replaced the hard drive a couple of years ago because it was really broken. And finally, the morning of closing arguments, the judge changed his charge to the jury, and told them that simply making music available for others to download was copyright infringement, even if no actual distribution of any music had in fact taken place. This is a fine point, but a crucial one, because the RIAA doesn’t catch people in the act of downloading or uploading. It only catches computers at IP addresses with music available for download. And the issue of whether that is infringement is far from settled.

In the end, the absurdity of the verdict resulted in more bad PR for the labels, more talk about the labels’ methods and the absurdity of the current copyright law, and a bunch of sympathy for a lady in Duluth, who is viewed very much as a victim. And she’s appealing.

Meantime, Radiohead announced early last week that they would release their new album In Rainbows themselves, through their Web site, on Oct. 10. And you can pay what you want for it. That’s right. If you want to download it for free, you can do that. But watch what’s going to happen—Radiohead’s gonna make a fortune. Betcha a nickel.

Payment by tip-jar has been suggested by anti-copyright activists for years, and derided by the industry as pie-in-the-sky idealistic hooey. But for certain artists, it’ll work fine. Better than fine: Jane Siberry, the wonderful Canadian singer so acceptably eccentric that she changed her name to Issa and no one thought it strange, has had her music up for download with tip-jar payment for a couple of years. At the moment, she’s averaging $1.18 per download in voluntary payments. That’s $.19 more per song than people would pay at iTunes.

And if Radiohead were still on a major label (their deal ran out a couple years ago), a download would probably fetch them around $.15 a song, once the label and online vendor took their cuts from the $.99 price. So, doing the math, they will be coming out better by selling directly if they get paid anything over $1.50 or so for the complete album. And they will get a lot more than that.

What’s it mean? It means that the bigger an artist is—and especially the more loyal a following that an artist has, a following that feels a personal connection—the more irrelevant a record label becomes. It won’t work for everybody, but if Radiohead does well, and they will, expect their model to be followed by lots of others, as soon as they can shake the shackles of their big-label deals.

Leaving the labels with nothing to do but peddle tripe to teenagers and sue single moms.

—Paul Rapp

Paul Rapp is an intellectual-property lawyer with offices in Albany and Housatonic, Mass. He teaches art-and-entertainment law at Albany Law School, and regularly appears as part of the Copyright Forum on WAMC’s Vox Pop. Contact info can be found at www.paul

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