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A lot of people are talking about the $220,000 award given to the RIAA by a Minnesota jury this week. I was asked for my comments by about a half-dozen CBC radio stations from across the country yesterday. In a series of interviews from St. John to Victoria I tried to convey a couple of basic points.
First, I was repeatedly asked about this significance of this case. My
response: It depends on who you ask. The RIAA welcomed the precedent,
which it can use in subsequent lawsuits throughout the US and maybe
even elsewhere. No doubt they believe they've won a significant
victory, but I'd question that assessment. Sure, most people will
probably take note of such a staggering award, and some might even
change their behaviour as a result. But once the story fades from the
headlines, I doubt the jury's damage award will put any dent in p2p
file sharing. So what did they really win? The research shows p2p is more popular than ever. All
that lawsuits do is isolate music fans, and as importantly, music
creators.
That led to questions about what I think the recording industry should do instead. That's when I emphasized that I do not necessarily condone sharing music on p2p networks. I just recognize it is inevitable. So instead of working against consumers and creators, why not work with them? There are lots of brilliant people in the music industry, and no shortage of creative commentators suggesting solutions to its sales woes. Why not licence instead of litigate? Voluntary collective licencing of p2p networks and their users is a tremendously promising yet untapped revenue source. I realize the rights-clearance thicket is an impediment here, but with co-operation, surely something can be done.
Second, I was asked whether this could happen in Canada. The answer:
Never say never, but it isn't likely. CRIA tried unsuccessfully to sue
alleged p2p users several years ago, when the Federal Court of Appeal rejected
its demand that ISPs turn over subscriber's personal information based
on sketchy and stale evidence. It is also apparent that Canada's
private copying right covers at least some of allegedly infringing
activities at issue in the US cases.
Third, when interviewers wondered if I had any other thoughts on this case, I remarked that there's a lesson to be learned for Canadian lawmakers. It boggles my mind how any just legal system can allow a jury to make an award that is many thousands of times greater than the value of the right violated. There is no theory of justice on which to base such a disproportionate windfall to one party where nominal if any damages could actually be proven. Canadian lawmakers should repeal the provisions of Canadian law that provide for outrageous minimum statutory damage awards in cases like these. Again, I'm not defending p2p file sharing here. I'm just pleading for some common sense when it comes to copyright infringement claims.
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