Digital Myths and Facts #2

This is a continuing column highlighting (some) of the gibberish out there about the music industry in general and the intersection of technology and music online in particular.

Lots of material every day yet only so many hours to get to everything…

1. MYTH: The RIAA’s RIAA lawsuits against RIAA defendants don’t produce an RIAA result…

FACT: How many times can one journalist mention RIAA in one sentence about the Capitol Records v. Thomas case? What exactly is an “RIAA defendant”? Aside from bad usage, that is.

2. MYTH: The RIAA fined defendant Thomas $x.

FACT: A jury of the defendant’s peers rendered a verdict all by themselves, including the award of damages and attorneys fees.

3. MYTH: The RIAA is bankrupting a poor defendant.

FACT: The defendant knew when she decided to litigate what the potential downside was, and her lawyers surely advised her of same. That a “poor” defendant would take the kind of risk she took by exposing herself to hundreds of thousands of dollars of damages claims without some insurance policy that she would not be bankrupted is something of a headscratcher. (Since it’s not possible to get insurance against willful copyright infringement, that “insurance policy” would have to take the form of a promise to her to pay her judgement made by a tech millionaire or billionaire–or, ahem…company.) I’d guess that the Grand Wizards of the EFFluviati could raise a couple hundred thousand in a phone call or two given the service that the defendant did for the larger interests.

4. MYTH: The RIAA didn’t prove its case because they didn’t prove that Thomas was in fact sitting at her computer with her MAC address using her account and downloading onto her hard drive (that she subsequently replaced–is that intentional despoliation of evidence?).

FACT: The recording industry made a circumstantial case that if it looks like a duck, quacks like a duck, uploads like a duck and downloads like a duck, then it’s a duck. The lawyer for the defense made a statement that the defendant’s computer could–not “was” but “could”–have been taken over by ZOMBIES. The defendant offered no evidence to the contrary, that is, was not able to produce any evidence that there was anything unusual about her computer usage other than that she didn’t want to be found liable in the instant case. The jury evidently believed that it was more likely than not that there was a duck–and not a ZOMBIE–in the room.

Had the defendant showed some evidence that there had been problems with her computer that suggested ZOMBIES in the machine, like other problems, other instances of inconsistent behavior that she hadn’t written term papers about, that kind of thing–it’s likely that the jury would have assigned more than zero credibility to the tale. Had that proof been offered up by the defense, the plaintiffs should have also taken those facts into account when considering whether to bring their case. One would think that if there was such proof available, the defense would have made those facts front and center in their case.

5. MYTH: Harvey.


FACT: Harvey is not a zombie you silly rabbit. Invisible friends don’t make good witnesses.