The Copyright Wars head to the US Supreme Court

It would seem that SCOTUS has decided to take up an appeals case for Whitney Harper, a Texas college student who was accused of copyright violations by the RIAA. A Texas federal judge award the RIAA $7,400 for the infringement or $200 per file for the 37 songs cited in the case. This was much lower than the $27,750 total the RIAA was demanding, themselves pressing for the maximum $750 per file infringement. The Judge in the case reduced the amount based on Ms Harpers defense of “innocent infringement”.

Not happy with the $7,400, the RIAA themselves appealed the ruling, and a federal appeals court judge granted them the full $27,750. Now Ms Harper has filed with SCOTUS asking for a final ruling on the manner.

The RIAA has mounted a sustained and dubious litigation war on music fans for the past decade. While they have scored a few small victories in front of juries and sympathetic judges, the campaign has been a financial drain on the music industry, a Public Relations nightmare, and has done little or anything to curb piracy, especially by true criminals and counterfeiters who continue to create and sell bootleg CDs all over the US.

The problem is of course that current copyright law (as well as other Intellectual Property law) is ill-equipped to handle the demands of a modern digital world. 100 years ago Copyright law was arcane, confusing, and contradictory. This did not concerning most people as they never came into contact with copyright law. Today Copyright law is still  arcane, confusing, and contradictory however now most people can not go a single hour without coming into contact with situation that is governed by copyright law. In most cases, people are either unaware of their own personal copyright violations, or simply choose to ignore the law in favor of an expedience which they rightly assume is not harmful to the copyright holder. Examples of this include, playing music in a restaurant, inviting friends over to watch a sports event, singing campfire songs on a scouting trip, sharing with friends a home made video recording of your children dancing to a popular song, and even singing “happy birthday” to a child at a party. While most law abiding citizen may see nothing wrong with any of these activities, each and every one of them as been the subject of legal action by the recording industry within the last 10 years. These were not legal actions between large corporations, but large corporations suing middle and low income households claiming damages from the “misuse” of copyright they claim to own.

Because of the aforementioned general status of copyright law (arcane, confusing, and contradictory), the recording industry has proceeded on the belief that they hold absolute control over every aspect of of these copyrighted works with no regard for the legitimate fair and privet use by the public. There is also an effort unwary by the recording industry to undermined attempts by creators to license and distribute their own works through none traditional means. Resent statements the director of the recording industry group ASCAP suggest that the entire recording industry will viciously oppose any attempt to create new business models, license systems, or distribution networks by artists and creators that does not include existing corporate players. This is compounded by ASCAPs past attempts to create license fee payment system which would demand payment for license fees for music that ASCAP is not entitled too, trusting that ASCAP would pass those fees on to independent artists even if said artist expressly did not want fees to be charged for their work.

All of this is compounded by an irrational opposition by executives with-in the recording industry to adjust their business models to profit from this new economy. This persistent and escalating legal campaign by the recording industry seems not just to stop the minor threat of noncommercial infringement, but also an attempt to solidify their claim of exceptionalness control, and an attempt to set their current business model in legal stone.

Music on the Internet, whether streamed from a commercial site, shared privately among friends, or offered freely for others to download is another example of a situation where current copyright law does not offer clear guidance,  claims by the recording industry not withstanding. Some activities can and should be clear violations, while others should not. The case coming before SCOTUS should however address a single clear point, does noncommercial copyright infringement have the same pinaties as copyright infringement for which the infringer has a monitory benefit.

Piracy in the digital age is only sustainable if there is no viable alliterative for the market. In addition, Piracy in the digital age is not stoppable. Attempts to eliminate piracy via technological or legal means will have no effect on pirates, and will only serve to alienate and frustrate paying consumers. These paying costumers when faced with ever growing frustrations will themselves turn to piracy, thous computing the problem.

There is an even greater danger from a societal shift towards the disregard for copyright law. As outlined above, people will simply choose to ignore the law in favor of an expedience. When normal and natural human behavior becomes a violation of copyright law, as it has already stated to be, then people will not only lose respect for copyright law, but there will be a greater erosion of respect for the law in general.

This could be one of those moments in legal history that forever changes the course of litigation.

The only long term and viable solution here would be for the court to create situation which would force the recording industry to change their business model. The court needs to establish a situation where normal, natural, and harmless human practices do not become a violation of the law, but retain an economic incentive for artists to create. Ideally the embrace of new technology by creators could solve this problem. Technology now permits artist to have more direct access to the public to market their art, thus removing the need for most of the infrastructure of the recording industry.

This perhaps is the true fear of the RIAA: they are now irrelevant. Suing noncommercial copyright infringers is only part of a larger strategy to remain relevant by litigate themselves into a monopoly. If a legal framework can be established that places all music as suspect to copyright litigation, then the only “safe” method for publishing and distributing music becomes the organizations doing the threatening. In this light recording industry executives opposition to change becomes less irrational and more move evil in nature.

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