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 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.
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 rapp.com.