Our ability as a society to transmit vast amounts of information has grown
exponentially over the last decade. Volumes of encyclopedia, books,
magazines, newspapers—let alone music—have become almost instantly
downloadable and retrievable, further feeding the frenzy of electronic
consumption. While to downloaders and users it may seem that there is
little or no real value to data they acquire through their activity, the
owners of that data take a significantly different stance. In the
recording industry, the battle between user and owner has been growing
over the decade and now we are faced with a question: what is the value of
¦lt;br /> In early October 2007, Sony BMG , Arista Records, Interscope Records, UMG
Recordings, Capitol Records, and Warner Brothers Records, each brought a
lawsuit against Jammie Thomas, a 30-year-old mother of two from Duluth,
Minnesota. While it was not the first time the recording industry had
sued an individual, it was the first time a suit such as this reached the
courtroom. Ms. Thomas was alleged to have downloaded and shared almost
2,000 songs in violation of copyright laws. In the end, the recording
companies decided to only pursue the infringement of copyright in 24
songs. Nevertheless, the provisions of the Copyright Act in the US
allow for penalties of $750-$30,000 per song. Ms. Thomas was found liable
for $222,000US or $9,250US per song.
¦lt;br /> The policy behind copyright law is two fold. On the one hand, we want to
encourage the creation of unique expression by offering protection in
copyright for the creator of that expression. On the other, we want to
encourage those who hold copyright to disseminate the unique expression
and add to the pool of knowledge from which we all draw. At trial, there
was no evidence that Ms. Thomas actually shared anything, only that she
made “the song’s available”. The claimant asserted that the mere
“making available” of the songs constituted distribution and willful
infringement with which, it appears, the jury agreed.
¦lt;br /> What is the most unbelievably shocking part of this trial is that Ms.
Thomas could have purchased each song for roughly $.99US through Apple’s
iTunes or some similar service. As a result, the market value of the songs
in total was about $20US. How can it be a fit decision to force someone to
pay $222,000 to make up for illegally using something worth $20? It seems
clear that if copyright holders could sue every infringer and succeed as
they did against Ms. Thomas, claimants would receive a windfall. Would it
not behoove copyright holders to encourage infringement then?
¦lt;br /> Record companies argue that decisions such as the ruling against Ms.
Thomas are necessary to deter others from committing the same infringement
that would result in a further profit loss for the record companies.
Record companies’ revenues have slipped, indeed, from twenty to eight
billion USD last year. So, will making an example out of Ms. Thomas
actually help? In all likelihood, no. While such decisions may decrease
the risk of copyright infringement via public file sharing programs like
KaZaa, it is impossible with the present level of technology for copyright
holders to stop private sharing via the internet. For example, if one were
to share a copyrighted file with another user over MSN’s Instant
Messenger, the data stream is encrypted and its contents unknown to the
outside observer. Considering the number of private file transfer that
occur each day it seems farcical that a copyright holder could hope to
catch all infringers all of the time.
¦lt;br /> So, then, what are we left with? Unlike many other works, the products of
the recording industry are consumed on a far greater level worldwide. Even
J.K. Rowling cannot hope to sell as many Harry Potter books as the
recording industry sells songs. The solution, then, may lie in preemptive
action. As I mentioned earlier, the level of our technology while it
allows for almost limitless sharing of information does not provide for
complete and certain monitoring of that sharing. Increasing levies on
merchandise such as CDs could significantly reduce the loss of profits
suffered by the recording industry. Or, alternatively, the recording
industry could realize that their products are not worth $.99 a song and
lower their prices. Either way, something must be done. The Ms. Thomases
of the world cannot bear the might of Sony BMG and Sony BMG cannot bear
the might of all those Ms. Thomases.
 Lewis Krauskopf and Gavin Haycock, “Music Industry Wins Song-Download
Case” Reuters (05 October 2007) online: Reuters <http://www.reuters.com>.
 Joshua Freed, “Music Download Case Goes to Jury” Boston Globe (04
October 2007) online: Boston Globe <http://www.boston.com>.
 Supra, note 1.