All is not well in the Googleplex, the land of the EFFluviati. The good people of Duluth, Minnesota made quick work of the defendant’s “zombie defense” in Capitol Records, et al v. Thomas, and handed down a clear signal that the zombie didn’t eat the homework–$220,000 worth of homework (and change), plus the plaintiffs’ legal fees. As one blogger called it, the “playlist of the century”. (“Dude! THREAT LEVEL knows where to score the sick playlist. Cash money plays for just 222,000 beans. That’s right. Just $222,000 to score 24 tracks of da bomb tunes.”)
The truly sad part of this is that I feel very confident (although the story is yet to be told and may never be told) that the defendant was sold a bill of goods by a lot of people in the anti-copyright crowd who probably told her she had a case worth fighting. They probably didn’t tell her that she had a case that feathers everyone’s nest but hers–if she lost. (I doubt that anyone said, “Think about how stupid that ‘zombie defense’ sounds–you may lose, and lose big.”) That wouldn’t be the first time such a thing happened, and it wouldn’t be the last.
Even if this defendant didn’t get sold a bill of goods directly by anti-copyright folk, it wouldn’t surprise me if she bought the bill indirectly. It certainly would make more sense than ZOMBIES IN THE COMPUTER (let’s call the zombie…oh, say “Harvey”…the imaginary friend) for her to think that the big, important and famous professors at Stanford and Harvard know what they’re doing and understand the law. They wouldn’t lionize pirates if it wasn’t a winning argument, right? Rich organizations like the EFF must surely have thought through their endless public statements railing on the organized recording industry–surely they wouldn’t put out misinformation? Surely they wouldn’t treat defendants as a means to an end? Surely they wouldn’t stop returning calls?
It’s unclear at this point exactly what truth can be proven as to who played what role in this poor defendant’s demise. Yet we can make some guesses as to who benefits.
I would guess that the Electronic Frontier Foundation wins because they get to whine and groan and moan about how a little person (who strangely turned down a reasonable settlement) was trampled by “Big Music” or “the cartel” or whatever other epithet is in vogue this week at Creative Commons. This is perfect for fundraising material, as we have seen with other political movements. At least one self-described EFF member is already starting the drumbeat for the “great” case on appeal, as is the EFF itself.
It also seems plausible that the defendant’s lawyers win because they can say they stood up to “Big Music” or “the cartel” or whatever other epithet is in vogue this week at Creative Commons. If they want that business, of course.
The creative community wins because…well…because we won.
But unless the defendant got a personal guarantee from some rich dude…oh, say John Perry Barlow…or has a speaking tour (maybe with Fair Use Project fav bad boy Rick Falkvinge?) lined up for the Berkman Center, the Stanford Law School and the Future of Music Coalition, she’s facing a very scary future. If she wants to appeal, someone’s likely going to have to post a bond. Maybe Professor Lester Lawrence Lessig III has some Google shares to contribute? Hard to know.
There are lots of statements already flying around by those in the anti-copyright crowd about how bad the publicity will be for the creative community. Let me offer this suggestion to those folk: You have dedicated yourselves to demonizing the only people protecting artists and songwriters from the destructive forces you have lionized–if you’re already Satan, you tend not to worry about even more negative publicity drummed up by your enemies.
There will be those who now rush to condemn the lawyers for the defense, I’m sure. That’s really unfair. The chances of this defendant pulling a win out of a hat with a jury seem so remote and unlikely that even the ghost of Melvin Belli would run for cover from the Zombie Defense. I applaud them for taking on such a difficult burden, and it is a triumph of our legal system that this contest was joined. (Gosh dang it, Marge, those ZOMBIES are coming out of the computer Internet again! Hide the children!)
It is actually very important that some of these cases go to trial so that defendants get their share of process and get to make their defense. The defense counsel is quoted on Wired.com as having “…speculated to jurors that [the defendant] could have been the victim of a spoof, cracker, zombie, drone and other attacks.”
Right. Now what’s really super cool to have in these situations is–proof. Not speculation about the supernatural. By the lawyer. But at least they got their day in court to take their best shot. It may be of interest that this turned from mere speculation to the bald assertion that the defendant’s Internet account was stolen, when the defendant was interviewed by CNN. Not in court where proof of such an assertion might have been exculpatory, but on CNN. (There’s also none of that nasty officer of the court stuff with CNN.)
We have trials because sometimes HARVEY THE ZOMBIE really did eat the homework. Not so today, but had the defense had better facts, had there been a REAL ZOMBIE instead of Harvey, for example, the outcome might have been different. (That computer Internet thing, it’s full of those ZOMBIES, Marge….) Of course, if the defense had better facts, the case probably would have settled or not been brought in the first place. But if cases in the never ending quest to make people do the right thing don’t go to trial sometimes, then the claims brought by the creative community look like a shakedown with the absence of process. That’s bad for everyone.
What is clear is that the anti-copyright crowd always seems to lose the important cases. They lost Eldred, Napster, Grokster, and now Thomas. When you look at these cases, the outcomes seem patently obvious. The contested issues in these cases all seem so trivial–Congress gets to decide what the copyright law should be, “sharing” with 60 million of your closest friends is not permitted, bad people don’t get the protection of the law and bad behavior should be punished, ZOMBIES notwithstanding. Do these holdings really seem so critical to civilized life that they were worth millions upon millions of dollars in legal fees and court time to litigate? Do the defendants not seem obviously wrong?
Did anyone tell the defendant that her chosen side always seems to lose? What is truly stunning about these people in the anti-copyright crowd is that they sit there with an absolute straight face and try to tell you the sun rises in the West—that what is obvious is untrue. I don’t know if they are victims of group think or what–maybe they just need to get out more or lay off the transfats. But when the anticopyright crowd fails to get a judge to believe it and they lose, they go all conspiratorial and can’t face the music. So to speak. Credit where credit is due, Trip Lessig at least admonished his recent hacker audience to face up to their defeat in Grokster.
Is the Thomas case going to stop the massive thievery that goes on every day online? No. There are two things that stop masses of people from violating societal norms and laws. One is the voice inside your head that is your mother, father, priest, rabbi, mentor–whoever–that says don’t beat your spouse, don’t murder, don’t lie, don’t steal. This voice is called “morals” in polite company, meaning that it is a behavioral code that governs human activity and makes outcomes somewhat predictable. This is why we can have Amber Alerts–there is an assumption that the vast majority of people will do the right thing.
The other is the promise of swift and certain punishment and usually involves the government–except in the case of the most massive instance of theft of private property in history. The government is nowhere to be seen.
In the case of pirate p2ps and illegal downloading, the morals step is just simply nonexistent. So if morality doesn’t count, then what about the second levee, swift and certain punishment? Also nonexistent because the government has entirely and abjectly abdicated its normal law enforcement role to private industry and to artists. If the EFFluviati are successful in weakening the resolve of the creative community to sue to protect their rights, then NO ONE will be there to fight them, which is, of course, exactly what the Grand Wizards of the EFFluvia want.
Does it make the defendants in other cases more likely to settle? Maybe. But it’s doubtful they’ll be running ZOMBIES into the court room unless the ZOMBIES were really there.
Does the decision strike a blow for the rule of law?
And the litigation is worth doing for that reason alone.
Declan Mcullagh has an interesting piece called “Four Reasons Why the RIAA Won” that’s worth reading. I’d offer a fifth reason that no one seems to be interested in hearing on the anti-copyright side of the house: The defendant lost because the jury found her Harvey the Zombie Defense singularly unpersuasive. I guess imaginary friends don’t make great witnesses. She lost because the jury found her guilty (or, more accurately, liable). The jury sent a signal that I believe they would have sent regardless of good lawyering–if the $150,000 maximum for “willful” infringement was available for the most egregious case, this defendant was about 6% as guilty as that. Meaning that the jury seems to have found the defendant’s behavior to be bad, but not reprehensible. Not a bad days work for the defense. Say thank you, and move on.
The people who heard the evidence evidently were not persuaded that Harvey the Zombie ate the homework. And then, of course, the principal reason why the ZOMBIES didn’t win was because this defendant chose to fight a case that hung on PARANORMAL INTERVENTION. (And when your child tells you that the ZOMBIES ate their homework, you’ll know who to thank. At least the dog will be grateful to be off the hook on the homework eating thing for once.)
Chalk one up for the dogs and actors. Tonight the lights will burn late in the Googleplex. Then the air will once more fill with a fine spray of EFFluvia like the fog rolling in over the Palo Alto Hills, the Gulfstreams will be counted safely in their hangers, and all in the family of The Man 2.0 will go back to sleep on clean white pillows of the finest Egyptian cotton.
Tomorrow, this defendant will be a distant memory for those who do no evil.