Well, as long as there isn’t a defense for the crime…

Joel Tenenbaum’s case has been the background for a week of a very bizarre copyright law and file sharing policy changes.  Curiously, the Tenenbaum team won’t be shaking up the way the law is applied, but seems to be seeking to actually minimize the actual damages under the 8th amendment.  This is the proverbial other side to the recording industries lawsuit coin, can they justify the damages that they’re claiming?  After all,  it’s not like stealing a CD from the store.  It’s not like they could just take an original copy and make as many other ones as they wanted so long as they had space…

As a lot of individuals are keenly aware, the music industry has been declining for years.  The slumping sales are blamed on a number of factors, ranging from an increased emphasis on other entertainment products (DVDs and Video Games), the economy slumping, and lets not forget a pirates.  The deficit that was developed in the industry was somewhere around $10 billion in loss of revenue from 1999, the point where Napster came into being.  Now, I’m not an economist, but it’s assumed that pirates make up a relatively small portion of the internet (which isn’t really what you’d believe based on the claims of the recording industry), then in the US, a 1% piracy rate is about 3 million people at any given time sharing.  That’s about $3,333 in lost sales per pirate.  It’s stated that the industry charges retailers $.70 per $.99 download.    Essentially, Mr. Tenenbaum would have had to share 4,761 songs to have made an impact on the industry.

Given that Mr. Tenenbaum is being sued for 30 songs, at the minimum rate per song, $750, he at best faces fines of $22,500, a rate of over 7 times the quantity of music that he allegedly stole and distributed.  For those familiar with this argument, you’re realizing that how Peer 2 Peer sharing works is that it’s assumed that the next guy down the line passes the buck to the next guy.  Based on this thought, our 3 million people downloaded about $30 in songs, and have caused the recording industry an estimated $67.5 billion dollars in minimum damages under the current fines.

Now,  I’m not a doctorate in math, but I’ve had a few college courses, and I kind of doubt that $67.5 billion is the same as $10 billion.  Now, if you look back at the case featuring Jammie Thomas-Rasset, the amount of $150,000 per song was considered a fair fine by Sony Music Entertainment Deputy General Counsel Wade Leak.  If Mr. Leak is correct, then the amount of damage that the pirates have caused to the music industry over the past 10 years is actually $450,000,000,000 [and that's 1 song, per person, I don't want to try to write out what an album of 10 songs per person will cost].  For those that don’t know, the Iraq war is estimated to have cost $3 trillion.  In other words, 3 million people downloading music from the internet have cost the music industry a little less than a 7th of the Iraq war.  What’s truly scary, is that’s a conservative estimate.

Based on this, the music industry was about to experience the most significant growth spike in the history of business, or because the industry can’t figure out how to quantify damages (which they’ve more or less admitted).

There are important ramifications to the outcome of the damage awards in this case, as their is a good opportunity for Judge Nancy Gertner to give the people of the US some reasonable protection against a clearly unfair law.

But wait, there’s more!

Meanwhile, the background noise is no less distracting.  The house today essentially heard a proposal from Edolphus Towns representative to New York calling for a ban of Peer 2 Peer or… Predator – Prey file sharing.  Now, I’m not entirely sure if Representative Towns has seen our flag, but it’s not Chinese.   More importantly, I’m not sure Mr. Towns has noticed that the government isn’t so good at designing Internet based systems.  How often is it that some teenager hacks into the Pentagon, and it shows up in the odd sock drawer of the New York Times?  Someone needs to step up to the plate and remind the government that it’s job is not to protect every citizen from themselves.  Some level of personal responsibility must be given.

Just to ice the recording industry cake, the fiasco with music sold with DRM is coming to a head.  With Walmart planning to shut down it’s DRM server again, the only choice for customers is to burn all the DRM laced content to CDs.  Big Content, a group representing the recording industry and MPAA, suggests that,  actually instead of trying to explain it, I’ll let their representative Steven Metalitz put it in his own words:

“We reject the view that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards. No one expects computers or other electronics devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so.”

In other words, we don’t really see why we should ensure content for a system we asked for which is now causing a problem.

Really?  Last time I check I bought that copy of Lord of the Rings: Return of the King, and didn’t really expect that the MPAA would show up at the door asking for it back in a few years because their plan to protect it’s content failed.  Given that DRM free media is now more or less standard for download services like Amazon or iTunes, it’s confusing why there would be opposition to granting an exception to the licensing for these individuals who stand to have to buy all their music all over again.  Get real. I’ll be over to Mr. Metalitz’s  place since I want that couch back.

In a final bizarre turn of the day,  Podcasts have now been patented [potentially on unstable ground], and the AP is still trying DRM it’s news content.  Just a suggestion for all the would be copyright loving nutters out there who want to make money on everything:  Eventually, there has to be a justifiable loss in order to claim that information being taken caused you to lose something.  I.E. Someone else taking your headline is at best ad-revenue, and you’re probably going to have a very hard time quantifying what visitors would have come to your content, and which users were already going to the other content provider.

I’ll be away the next few days, but make sure to keep reading up on Tenenbaum, the ending should be something to speculate over.