iPods, Napster and Kazaa, Oh My

Yesterday a federal jury returned a verdict of $220,000 against a woman from Minnesota named Jammie Thomas in a music copyright violation case. She was sued in that case by the Recording Industry Association of America (RIAA) for allegedly making available "for sharing" over 1,700 songs through the Kazaa peer-to-peer website. In spite of the actual number of songs she illegally uploaded to the site and made available for download, only 24 songs were at issue in the case. The jury sided with the RIAA and returned a verdict against her of $222,000, though the award could have been much higher under current copyright law. First, a little history on music file sharing is in order.

You may remember a site from a few years ago called "Napster." That was one of the original (and largest) peer-to-peer music sharing sites. A "peer-to-peer" network is basically a big database of songs which allows anyone with access to the network to upload or download songs. Problem is, each time a song is shared for free in this fashion, it violates the copyright of the song's owner.

Napster came about in 1998 when a college student named Shawn Fanning wrote a clever new file sharing software program. The program allowed music lovers to share songs over the internet. The real innovation was that the Napster program was faster and easier than anything before it and that, unlike other sites, the actual song files did not reside on Napster hardware. Instead, the song files were sitting on each user's own computer. Napster was like the dating service that linked users together. What the users did with their songs was their business.

In 1999 Napster, Inc. set up shop in California and by December of 2000, the wildly popular site had over 20 million users. But, this system was just too fun and too easy and too cheap to last. Eventually the heavy metal band Metallica alleged copyright infringement by Napster. The musicians sought to force Napster to shut down or to pay them the royalties they were losing on the freely-traded songs. Ironically, some bands, like Limp Bizkit, embraced the new technology and actively promoted it, going on Napster sponsored music tours.

Napster interposed basically two defenses against the corporate juggernaut. First, that Metallica (and others) could not prove that users of Napster's software were breaking the law. No one had any proof that users were illegally sharing music over Napster's site for free. To counter this, Metallica hired a company called NetPD to investigate Napster file downloads. NetPD proved that Napster users had illegally swapped over 300,000 Metallica songs in just 3 days. Napster shut down those users and extracted promises and affidavits from others that they would not misuse Napster's system to break the law. Other complaints followed by musicians like Dr. Dre, using the same technique Metallica did.

Many may recall the impassioned testimony by Metallica's drummer, Lars Ulrich, before congress. Some also remember that as the day heavy metal died.

Next Napster argued that it was not actually trading in the copyright protected music itself--the users were doing it from their own computers. This is the same logic that protected VCR makers under the Digital Millennium Copyright Act. But the courts saw things differently and ordered Napster to stop trading in copyrighted material. The essence of the reasoning is this: Making a file available for other users of a peer to peer network to download constitutes an infringement of the exclusive distribution rights of the owners, as well as of the reproduction right. Napster shut down in 2001 and reopened a few years later to sell music in accordance with copyright law.

Lawsuits forced Napster to go legit and now it's basically just another version of iTunes, with a better logo. The heir apparent to Napster for the past few years has been Kazaa, also a peer-to-peer music sharing site.

Now back to the Jamie Thomas case. She tried some of the same defenses that Napster used, contending that they could not prove that she downloaded anything or was involved with Kazaa. Unfortunately, she foolishly used the same user ID name for her e-mail and for the Kazaa account. Suspicious. The RIAA was also able to match an IP address to Thomas. That's all the jury needed to finger Thomas as the Kazaa account owner.

Here are the two key jury instructions that sealed the deal:

JURY INSTRUCTION NO. 14: The act of downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive reproduction right.

JURY INSTRUCTION NO. 15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.

Obviously Instruction No. 15 is the killer. Just by making the songs available for download--even if no one ever downloads a song--is a violation of the law. The jury actually did Thomas quite a favor. The jurors awarded $9,250 in damages for each of the 24 songs, for a total of $222,000. They could have awarded up to $18,000 per song. For 24 songs that's $720,000. But, they split the baby. Maybe there were a few old Napster users on the panel.

So, if you or your kids are sharing mp3 music files using Kazaa or a similar site, save your pennies. The RIAA is coming for you. I wonder what Beethoven would have made of all this.

This excellent post by Declan McCullagh has some good links and information: Article.