An idealistic view is that the purpose of copyright is available to
induce creators to share their creations with the public in order to
foster the growth of learning and knowledge. In exchange for their
creations, copyright law provides creators with the incentive of exclusive
rights. Lydia Pallas Loren, however, argues in her article, “The Purpose
of Copyright” (http://www.open-spaces.com/article-v2n1-loren.php), that
modern copyright law in the US has become exactly what the framers of the
US constitution feared: “a tool for censorship and monopolistic
oppression.” She states that most people view the purpose of copyright
“to protect authors against those who would pilfer the author’s work.”
The decision in the first US music downloading case appears to reflect
that opinion.
In that case, Ms. Thomas, a mother of two, was sued by six record
companies for allegedly sharing 1702 songs on Kazaa. As reported by
Joshua Freed (www.thestar.com), she has been ordered to pay $222000 in
damages for copyright infringement of 24 songs. Many of the other 26000
actions initiated by the record companies have each settled for only a few
thousand dollars. The lead lawyer in the case hopes that this will send a
message to people that downloading and distributing music is wrong. In my
view it seems to send the message that if you try to stand up to large
corporations, you are going to be liable for a lot more than a few
thousand dollars. This has the potential effect of deterring anyone from
standing up to record companies even in cases where the copyright
infringement is defensible, as in cases of fair use. For example, budding
musicians and school classes benefit from being able to access music but
would likely lack the money or courage to go up against the music
industry. If the goal of copyright is indeed to promote knowledge and
learning, then this is a bad decision.
The lawyer’s statement also suggests that they were seeking more than
just compensation here, that they were actively seeking to give a message
of deterrence. I agree that there was copyright infringement but the
amount of damages seems completely out of proportion with the crime given
that her copying was likely just for personal enjoyment. Assume for a
moment that many more of these cases were to go to court. Given that the
copyright law allows for $750-30000 per infringement with up to $150000
where the infringement was willful, the music industry has the potential
to be awarded a lot of money from individuals (as discussed by Joshua
Freed in “Music giants vow more suits over downloading”
(www.thestar.com). One could argue that this would never happen on the
grounds that most cases will settle before ever getting to court, but it
does increase the possibility that the record companies will ask for
higher valued settlements now because of this dangerous precedent.
Finally, as Michael Geist argues (“Music industry needs innovation not
intervention” available at www.thestar.com), artists and consumers are
responding to the new digital reality and so should the music industry.
Many artists are selling their music directly online (Led Zeppelin and
Radiohead for example). There are also websites now that allow you to
purchase songs. With new technology any business must evolve, including
the music industry. For example, any music company that had continued to
exclusively produce vinyl records would have lost a lot of money to those
companies selling music on CD. Furthermore, in his blog
(www.michaelgeist.ca), Michael Geist questions whether the more recent
loss of sales revenue can even be attributed to illegal downloading. To
increase their sales revenue, the music industry needs to adopt some new
ideas.
After the US case involving Napster in 2001, it seems clear that the free
sharing of music files on peer-to-peer file sharing networks is copyright
infringement. By making unauthorized copies of music available to a large
group of people for free, Ms. Thomas was indeed infringing copyright and
should be liable for the damages. However, how long should record
companies be able to use individuals as scapegoats for their loss of sales
revenue? At what point should courts say enough is enough and tell record
companies that they need to modernize their business models? The number
of people downloading songs on these websites is apparently growing, not
shrinking. That is an awful lot of lawsuits.
One Response
Few would disagree that if rights under the Copyright Act are to have any meaning and value, copyrighted content on the internet needs to be protected and enforced. But when it comes to the appropriate method of enforcement and protection, the Comment says, as opposed to the assertions of music companies, that suing individual infringers and obtaining huge damages in costly legal battles is not just and that the music industry should modernize their business models. Such a divergence of thought raises a fundamental jurisprudential issue- that of characterisation of the grant under the copyright laws. While the music companies and other right holders would have us believe that the grant under the copyright law is “property”, many users would argue that it is just a right to do or to prevent others from doing something for a given period. Hence some of the traditional features of property such as it being capable of stolen does not attach to it. Even if one violates the right of the copyright holder, one should not be punished in the same manner and to the same extent had the subject matter been a tangible property. While the doctrinal underpinnings of copyright law which is encouragement and dissemination of artistic and intellectual works and a proper balance between the user and right holder rights might not give much support to the argument of the music companies, the current practice and content of copyright law, both domestically and internationally, seem to be in their favour.
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