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Feb. 1st, 2010
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I don't know if any of you out there have been following the long-running trials on behalf of the Recording Industry Association of America (RIAA) versus their own consumers, but one in particular - against one Jammie Thomas-Rasset of Minnesota - is proving just how completely out of touch the entire recording industry is, and how obvious it is that the major label system is in horrible hands as long as it relies upon the RIAA to represent them in any meaningful way.
Ms. Thomas-Rasset is charged with sharing 24 songs illegally. Her case's court documents make clear that there was no proof that any further sharing of these songs took place.
Wired's "Threat Level" blog has a listing of the 24 songs in question. (link)
So: 24 songs. 24 already popular, already high-earning songs.
Let's assume that Ms. Thomas-Rasset, who has admitted numerous times that she is far from being a computer whiz, nor is she an active or voracious sharer of music, actually caused these songs to be shared in any meaningful way, which is arguably impossible to prove.
At iTunes standard price of $1.39 per song, we get $33.36.
This is the total that Ms. Thomas-Rasset saved herself by downloading these probably lower-resolution copies via Kazaa.
But if we want to say that she potentially contributed to the further sharing of these low-res recordings to, say, five more individuals (which is again impossible to prove, but could be assumed to be true for the average "computer always on" music sharer):
$33.36 x 5 people = $166.80
This is how much she would personally be responsible for having shared illegally herself. This is again an inaccurate value since the way actual file sharing works is not purely a one-to-one sharing situation, but instead a many-to-one relationship. But let's ignore that for now.
If each of those five (5) people in turn shared those same files - the exact ones they downloaded ONLY from her, not from anyone else - with up to five more people, that would be (let's assume):
5 people x 5 additional people each = 25 people + 5 original people sharing from Ms. Thomas-Rasset = 30 people + Ms. Thomas-Rasset = 31 people.
$1.39 per song x 24 songs x 31 people total = $1,034.16
Real world: that is most likely where that situation ends.
In fact, legally speaking, she can really only be held responsible for having shared with five (5) people herself. Anything they did beyond that is actually not her fault. They are human beings with brains and consciences and computers and sharing software, and she cannot control how she uses any of those collective assets.
The RIAA's minimum damages per shared song is (inexplicably) $750.00, but for some reason they were claiming $1.92 million dollars total in her case.
$1.92 million / 24 songs is $80,000 -- PER SONG!
The judge reduced this to $54,000, which results in $2,250 PER SONG!
In what retarded alternate universe could either of these be considered an appropriate deterrent?
Was she burning CD's and selling them? No.
Was she openly inviting people to come and share all 24 of those songs between ONLY herself and up to five other people? Evidence (and the reality of how most non-savvy people use sharing software) points to no.
Was she mass-producing copies which she then sold wholesale? No she was not.
Did she own and operate a CD pressing and distribution center?
In fact at any point, was she profiting in any way whatsoever from the personal-use downloading of 24 songs?
No she was not.
Let me put this another way.
Let's guess how many times she *might* have heard all 24 of these songs without ever having downloaded them.
Each of these songs are routinely played on AAA and Classic Rock radio numerous times a day. In fact: you can likely hear each of these songs in their entirety while shopping at any drug store or grocer, and while dining at pretty much any diner or roadhouse restaurant.
Are radio stations on the hook for the same price for allowing these same 24 songs to be played and listened to by millions of people across North America? Arguably not. They do pay blanket licensing fees so that they can have access to those songs, and play them anytime they like, and log that play so that eventually the atrist's publishing company can earn a performance royalty, which may or may not mean that the artist sees a tiny portion of that royalty. But that whole system is still vastly inaccurate. Have they ever been charged $1.92 million for allowing those same 24 songs to be heard by a tiny, tiny fraction of those millions of listeners?
Ms. Thomas-Rasset might have saved herself a whole lot of hassle had she merely turned on a radio.
But what does this say about radio, if the personal-use download of 24 songs is somehow deemed by the RIAA to be worth 1.92 million US dollars?
Keep in mind that her first trial resulted in a mistrial because of the judge's instructions regarding "making available".
"U.S. District Judge Michael Davis declared a mistrial, saying he'd incorrectly instructed the jury that merely making copyrighted work available on a file sharing program constituted infringement, regardless of whether anybody downloaded the content." [http://www.wired.com/threatlevel/2009/05/new-jammie-lawyers/]
This is pretty crucial, because my above-mentioned totals are STILL too high if that statement is true. And in fact my suggested total is much more likely to be closer to the reality of this situation.
If $54,000 is a legitimate damage to apply to her sharing of 24 songs, how many people would she have had to shared to make this realistic?
$54k / $1.39 38,849 individual downloads.
38,849 / 24 songs = 1,619 individuals downloading all 24 songs.
Grand total at low to medium resolution we are looking at from 88 to 100 mb of file size. Let's go with the higher end: 100mb.
Let's assume that she was a ravenous sharer of these 24 songs.
If her cable connection gives her 150 kb/s all the time, every day (a speed I personally do not see ever, and Canada generally has faster broadband than the US,) and she shares all 24 files with all 1,619 individuals, and there are no breaks in her connection and she never shuts her sharing software or her computer down:
I'll spare you the boring mathematical details, but it appears that she would have to have been sharing for some 300 hours. That's 12.5 days straight, no breaks, no shutting down, running at full, uncapped internet speed used for nothing else.
My own cable company caps me at 60gb per month, so she'd likely also be paying a surcharge to her cable company for that.
If $1.92 million is considered "acceptable" damages: you're talking about sharing non-stop to 57,554 individuals. I don't know anyone who's shared any file, of any size, with that many people.
Again, sparing you the details (but go ahead and contact me for them if you want) this would take an estimated 444 days to share to all individuals. That's 1.21 years solid.
The RIAA is trying to impress upon the public that this sole individual, Jammie Thomas-Rasset, is somehow singularly responsible for gold-single-levels of downloading of these 24 songs. They're trying to use her singular case to recoup what they claim are "lost" sales of these songs, when iTunes has very likely continued to sell many thousands of copies of these songs.
The real question is: how many people is it realistically likely that this person ended up sharing the songs with? 57 to 58 thousand? 1.6 thousand? Or a handful?
Given that Beyoncé (who just won another boatload of Grammies last night) has sold in excess of 2.7 million copies of her "I Am... Sasha Fierce" CD, not including 3.5 million downloads of her "Single Ladies" song, I am fairly certain that Ms. Thomas-Rasset's sharing of her form group's early hit "Bills, Bills, Bills" has caused even the slightest dent in her earnings. In fact I would question whether any of these artists have seen any measurable drop in their income as a result of this single individual's sharing of a measly 24 songs. Yet this is the example the RIAA hopes to make.
I get it. Downloading is "killing the music industry" (Remind me: Wasn't that what both "home taping", DAT tapes and online radio were doing?) I get that mass downloading is bad, etc. I get it. But come on. In place of any competing concept, the methods that happen to be illegal and free are the currently also the easiest and most hassle-free ways to consume music. Making an example of one of the only people to challenge their strong arm tactics is certainly not going to win the RIAA or their labels any new fans.
If this is how the industry is going to continue to act, why would anyone care to see them fail?
As always, I .