Chalk One Up for the Dogs and Actors, or Where Have You Gone John Perry Barlow, the Google Nation Turns Its Lonely Eyes to You

“It’s plain that the dinosaurs of the recording industry have completely lost touch with reality,” said Fred von Lohmann, EFF senior staff attorney. “At a time when more Americans are using file-sharing software than voted for President Bush, more lawsuits are simply not the answer. It’s time to get artists paid and make file-sharing legal. EFF calls on Congress to hold hearings immediately on alternatives to the RIAA’s litigation campaign against the American public.”

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 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.

6 thoughts on “Chalk One Up for the Dogs and Actors, or Where Have You Gone John Perry Barlow, the Google Nation Turns Its Lonely Eyes to You

  1. Your blog reminds me a lot of those who preach sexual abstinence, Chris. Most of us operating in the real world understand human nature & are at least sympathetic to the desires & temptations that come with it. Things aren’t black & white and people aren’t perfect. When things become too easy, you can almost count on people to cave. There’s a lot to learn from the “safe sex” movement, who, with compassion & a good dose of reality, seek to, in light of popular behavior, promote and even monetize the best choices. There are those, like myself, who choose to abstain, but I know enough people to consider myself “in touch” and, as I consider it to be a moral issue, wouldn’t hold anyone to my own beliefs. Morals are, for all practical purposes, just beliefs, after all.Similar to sex, free music has proven to be something humans have a hard time passing up. If this phenomenon can be controlled & monetized, why would we fight against human nature? Why would we waste money on the legal fees? Can’t we just adapt the system to be the best for everyone?The same way that abstinence evangelists come across as crazy, out of touch, & lacking compassion, especially when demonizing secular compassion, I would say that you aren’t making the best impression. Then again, your writing style and the condescension that permeates your work both speak volumes about who it is you’re writing to and for. Anything but strict ideological conformity is obviously out of your field of vision.But this the truth, whether or not you choose to accept it… so long as the lawsuits persist, the community will be continually losing… money, fans, respect, & potential members.Love,Jon Cole


  2. I have to say that I never thought of what this “we” are doing in trying to establish a legitimate market in the online world as being like monetizing safe sex. THAT is a new one. Both the analogy and “monetizing safe sex”. Wow.Since you’re the one who’s going down the sex analogy, presumably you would have a problem with rape? Meaning that if you take someone’s sexuality/copyright without their consent that’s like, you know, like really uncool dude? I mean like I don’t want to like lay a guilt trip on you if rape is your thing, man, but it’s like really bad karma dude.I know that even mentioning the word “morals” in certain circles of extraordinarily heightened moral relativism is taboo. But surely you can agree that not doing murder, not doing violence, not doing rape and not stealing private property are not mere “beliefs”. These are the cornerstones of many civilizations, and are not just norms but are the most fundamental laws in any society and have been for thousands of years. In our society, these are laws that are enforceable civilly by citizens, or criminally by the government. I am not speaking of any particular beliefs that originate with me, but beliefs that are widely held in most countries, no matter what their creed or code. Shared morality that controls behavior is the glue that holds society together. It is morality–don’t steal, for example–as a behavioral force that keeps people from picking the locks on their neighbors house and helping themselves to his couch–or maybe even turfing him out of his bed so the intruder can have the bed and the neighbor can have the couch. If moral belief fails to stop behavior, then the law steps in, but the law can’t be there 100% of the time.If you read the first parable in Plato’s Republic, you will find the lesson of Glaucon’s ring. The ring in the story allowed the wearer to become invisible and anonymous–sort of like the Internet. The question was if no one saw you do evil, was it still evil? I did not conceive of private property. I live in a country that cherishes (or used to) private property and I live in a system of laws that protects that property. That’s not a mere belief of one person–there’s a whole social fabric built on it.The mere fact that Internet users are anonymous does not make bad behavior any better. Just because you can get away with it on the Internet doesn’t make it right. And actually the reason that jobs are evaporating is not because of the lawsuits. That’s what the EFF want everyone to believe. The lawsuits aren’t causing people to steal. The lawsuits may make them want to steal more in some petulant, defiant rage, but they would be stealing anyway.This is not 1999, or even 2005. There is a robust legitimate market developed for music online. Millions of tracks are available for purchase.No more excuses.


  3. There’s is a difference between rape & copyright infringement. If I stole someone’s guitar, that’s the equivalent. Here’s the comparison… in a perfect world, there would be no aids & there would be no abortion. There would be no broken homes. But that’s not going to happen. So since people are going to have sex, it’s far more productive to find a compromise, to teach safe sex, to minimize the negative impact & accentuate the positives. Then again, this is coming from a virgin, so I’m hardly an expert on the subject, I just notice the similarity in your method of preaching.Now in this same perfect world, everyone would pay for digital music. And also in this perfect world, the money that the labels aren’t spending on manufacturing & distribution would either go back into the pockets of the artists or would manifest themselves as lower prices for the consumer. In this imperfect world this is, as I understand it, not the case. Will the 24 artists who’s songs were in question in court receive their fair share of the $220,000? I doubt it. And where does EMI’s extra $.45 from DRM free mp3s go? You want to compare something to rape? You can start there.Point is, saints exist on neither side. Temptation is given into on both sides. That should be the start of reconciliation… the labels are fucks, but so are we. From there we should look for a solution somewhere in the middle, whether it’s a dramatic price drop in order to further legitimize legal downloading & elicit a model based on bulk transactions, or a more liberal subscription program, or SOMETHING.I never said downloading music illegally is right. Objectively, it has it’s benefits. But it’s still wrong. My point is that I can sympathize with people who compromise certain (thought not just any) moral beliefs. If you can’t, you must be a better man I am. But this is not an issue of morality, relive or absolute, it’s an issue of facing our own hypocrisy on both sides, & finding a gray-area solution that puts food on plates.The value of music has dropped, dramatically & practically irreversibly, as a side-effect of technological progress. Music will not be worth, on the whole, a dollar per song again under the current regime. But it is worth something, & consumers need to pay that “something.” The good news is that people are more interested in music than ever, thanks to illegal downloading. So lots of “something” can come close to or even equal or even surpass fewer $.99 transactions. If people can download legally for less, the current interest will be maintained & hopefully the industry will find itself in reasonable condition again. If legislation remains the weapon of choice, “reasonable condition” is second star to the right & straight on ’till morning (since we’re tossing out references to classic literature).This hardline stance is crippling the industry.As a side note, let me ask you this… since you’re equating intellectual property “theft” to actual theft, if I stole 24 Big Macs should I be fined $220,000?


  4. First of all, the defendant knew going into the case what the penalties were, or her lawyers did and I have to believe that was explained to her. The defendant chose to go to court and chose not to take the settlement. The outcome is of her choosing. I think that complaining about the size of the jury award is insulting the defendant’s intelligence, and also premature as these things are frequently reduced on appeal, if she chooses to appeal.This defendant said she refused to be victimized by “bullies” from RIAA and she wanted her day in court. She got it. She clearly doesn’t think of herself as a victim, so I don’t know why anyone else should think of her as a victim.When she choose to roll the dice and choose to go to court, she paid her money and she takes her chances. If the best she had in her back pocket was the Zombie Defense, one could argue that she maybe shouldn’t have gone.There is one copyright law, and it applies to both Prince and SONY BMG. So from an artist-copyright owner perspective, like it or not, them is us, and we are them when it comes to copyright issues. So keep that in mind when you want to have a good rant about the labels. If an artist chooses to give up their rights, or even decides simply not to enforce their rights in certain situations, that’s certainly their choice. But file bartering doesn’t respect that choice. There are statutory damages for copyright infringement, meaning that judges and juries get to choose the penalty within a range. This keeps juries from coming up with extremes on either end of the scale.If there were no statutory damages, what would one defendant’s pro-rata share be of the social cost of 300,000 lost jobs? Of 150,000 jobs? Of one job? The Congress doesn’t want the emotion of these losses to be something juries get to take into account, so they mandated statutory damages as a way of getting to a result.So to your point about stealing hamburgers, the comparison may make you feel good, but it is inapt. There are no statutory damages for stealing hamburgers. There are for stealing copyrighted works.You may not like statutory damages, and that’s fine, call your Congressperson. But everyone in this case knew going in what the downside could be if the jury wasn’t able to see Harvey the Zombie. Imaginary friends don’t make great witnesses.(


  5. Now… I don’t know exactly how all of this works, Chris. I’m a college dropout. And I didn’t ever even take any “real” classes when I went. So please correct me if I’m wrong on this one.I’ve read that the global economical cost of music sharing is $12.5 billion. ( That may or may not be correct, I don’t know, but it sounds close to me. Now, we know a lot of that is China & Russia & Germany & wherever else. But let’s pretend that’s all Americans. $12.5b divided by $220,000 comes out to roughly 56,000. Do you think that’s the number of file sharers who should be splitting the cost? 56,000? We know from our friends the Two Guy Trio (who are in dire need of a stylist… did I mention that yet? You might want to pass that along…) that there are over a million people with some degree of interest in their band, which would indicate that 56,000 is no less than 20% of people sharing files 3 years ago. But it’s more like 2%, I would guess. I’m sure there’s a figure bouncing around the interweb of the total number of musical pirates. I’d ask BigChampagne but they’d probably charge me for an answer. And their numbers don’t even account for torrent users, nevermind the variety of other ways to acquire music that I won’t even mention for fear of tipping anyone off.Now, again, I don’t know exactly how all of this works, but if you’re asking what her fair share of the cost would be, $5k splits the $12.5b among 2.5m virtual sea scourges, which is hardly the number of file sharers out there, but still doesn’t strike me as entirely unreasonable. Coincidentally, this is the high end of the settlements, which means a good argument could be made that even the settlements are inflated.So if that is your justification for the statutory damages, I would hope the $220,000 would be divided among the artists & low level workers who are taking this economic hit. Maybe each of the Big Four can hire someone back now. For a year, at least. Somehow I don’t see that happening. Do you?You make a good point… her layers new what they were getting into. And I don’t want to ascribe an unfair simplicity to the defendant, but in honesty it’s difficult not to. It seems that I could’ve provided her with a better defense. And you’re right, it probably will go down after appeal because it SHOULD go down. And that’s exactly my point.But the amount of damages is merely a footnote to the real story… legislation is continuing to fail. I think a good chunk of that $12.5b could find it’s way back to the industry if we would just try to figure out what music is worth to the modern consumer & how they want to consume it. You know this lack of respect for the industry is due in part to the lack of respect for the customer. If the labels aren’t willing to seek these funds, I don’t see them ever receiving them, unless they’re structured payments coming from a single mother of two.


  6. It’s actually simpler than the example you chose. Congress makes statutory damages available as a remedy for infringers. Statutory damages are available as an alternative to proving actual damages. This has been the law for a very, very long time.If you have a problem with that, call your Congressperson.Because the jury didn’t and doesn’t have say which of the jury instructions they are following in rendering their verdict, it is usually impossible to know what the jury based the decision on (often the reason why counsel for at least the losing side wants to meet with the jury after their verdict.)So while it may make people feel good to make a huge thing out of the making available instruction, it is likely going to end up being of little consequence.Much is also made of the vacating of a particular U.S. case that copyright community lawyers evidently used in their briefs on the “making available” instruction. I haven’t seen the briefs so I don’t know exactly how that was phrased, but you might find this quotation from Professor Jane C. Ginsburg of the Colubmia School of Law of some interest:“International intellectual property treaties assume that simply making a work of art available can violate the copyright, said Jane C. Ginsburg, an intellectual law professor at Columbia Law School.”It would be hard to see how we could be living up to our international obligations if the law were interpreted differently,” she said.” ( that even in the absence of any judicial rendering of the making available concept (well settled law in Europe and other places), there would likely be authority, and good authority, for including the making available instruction and suing for infringement of the making available right in the US.So the jury instruction does not seem to be a very interesting ground for appeal.That leaves the amount of the damages award. I note that in his CNN interview, the current defense attorney made it sound (to me anyway) that he was focused primarily on the making available jury instruction as his best ground for appeal. It’s of course unlikely that he’s going to lay out his strategy completely on national television, but that is what he said.Given the clear line of cases that support the appropriateness of a jury to render a verdict in line with the statutory rules. I have seen coverage on the case suggesting that the jury was charged to find “willful” infringement. This is an important distinction, as it what governs which part of the statutory damages continuum on which the plaintiff falls.It is also important for measuring fairness in the jury award as it establishes the maximum against which the award is to be measured.Even if compared to the nonwillfullness limitation of $30,000, the award is about 30% of what could be awarded.If compared to the $150,000 “willful” limitation (which was apparently the jury instruction), the award is an even smaller percentage of the maximum, approximately 6%.It is highly unlikely that there is any basis for overturning the award because the award is within the permissible range enunciated by Congress, for the very reason that so few works were subject to the damages award–meaning that the copyright community did not seek damages for the thousand or so other works at issue.The reason that Congress enunciates the permissible range is for the very reason that they want juries to follow the range.However, like everything else in the online space involving the payment of money for the use of copyrighted works, complying with the rules is not something anyone is willing to settle for, whether it’s XM Radio or this defendant.I know it’s all cute to fight authority, etc., but my guess is that many in the Congress have just about had it with their treatment by DiMA in the webcasting rates, and are unlikely to listen to every claim that comes along based on an unwillingness to pay money for content. And make no mistake, that’s exactly what this case is about.


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