Court is Wrong to Award RIAA $22.5K From File Trader.

By Jon Newton 12/9/05

A federal US appeals court has upheld a $22,500 judgment against Cecilia Gonzalez, a 29-year-old Chicago mother and a victim in one of the first Big Four p2p file sharing cases.

The mother of five children, in September, 2003, she was among the first 261 people to be named at the beginning of by the Big Four Organized Music cartel's twisted sue 'em all marketing campaign.

Sony BMG (Japan, Germany) Vivendi Universal (France), EMI (Britain) and Warner Music (US) are using their misnamed Recording Industry Association of America (RIAA) to try to gain control of the as yet unestablished online music business.


Cecilia Gonzalez

They're attempting to achieve this by creating an aura of palpable legal terror they hope will compel the average person to turn to sites they supply and support, such as iTunes, RealNetworks and Napster, rather than the independent competition which is, to their distress, appearing online.

They're trying to sue their customers into buying 'product'. However, they're failing, demonstrably. By far the vast majority of online music lovers refuse to be steamrolled into paying $1 and more each for Organized Music's lossy, low fidelity music tracks. Nonetheless, secure in the knowledge that the mainstream media will continue with their unbalanced reporting under which only one side of the coin, the music industry's, is presented, the labels are pressing ahead.

The cartel implies it's successfully "prosecuted" some 17,000 people when in reality, not one of them, including Gonzalez, has ever been before a judge. And not one of them, including Gonzalez, has ever been found guilty of anything by a jury of their peers.

It says its war against its own customers is persuading significant numbers of them to abandon the p2p networks and according to Edgar Bronfman jr, the Canadian who runs Warner Music, the "five-year legal fight against unauthorized downloading or sharing of songs is starting to pay off after thousands of music fans were sued and file-sharing companies such as Grokster Inc. were shut down"

To the contrary, at the very least, 51 million people in America alone currently share music with each other via the p2p networks, and the number is going up, not down. In the US in November, 2004, on average, 5,445,275 people were simultaneously logged onto one or more of the p2p networks at any one time, says p2p research firm BigChampagne.

By November this year, the number had risen to 6,530,408.

However, this isn't being covered by the corporate-owned traditional media who continue to quote only cartel disinformation releases.

Pure PR double-speak

"The three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago threw out Gonzalez's arguments that her Internet activities were permitted under U.S. copyright laws," says the Associated Press. "The court rejected her defense that she was innocently sampling music to find songs she might buy later and compared her downloading and distributing the songs to shoplifting."

AP fails to point out the comparison is 100% erroneous - pure PR double-speak.

Shoplifters steal. They remove something from its rightful owners, depriving them of its use and of its value. File sharers 'share'. Nothing is taken from anyone, physically or otherwise. Nothing is re-sold. And no sales have ever been shown to be lost because of it, spurious Big Music claims to the contrary notwithstanding.

The heavily compressed, low quality digital files the industry sells, or tries to sell, online, aren't new. They already exist as uncompressed, hi-fi (high fidedlity) CD and DVD tracks. But intelligent consumers flatly refuse to 'consume' this grossly over-priced, formulaic Organized Music 'product' under their own volition. So sue them into it.

"Gonzalez had rejected a proposed settlement from music companies of about $3,500," says AP. "A federal judge later filed a summary judgment against her and ordered her to pay $750 for each of 30 songs she was accused of illegally distributing over the Internet."

However, a settlement is anything but. In fact, it's a farce; the reason no one has yet appeared before a judge or a jury. None of the very ordinary men, women and even children being sued has a hope of finding the money with which to buy the legal assistance they'll need to be adequately represented in an open court. And Organized Music has counted on that all along.

Gonzalez says she downloaded the tracks she's being accused of stealing as try-before-you-buy samples, and that she and her husband "regularly buy music CDs and own more than 250".

"However, the appeals panel said Gonzalez never deleted songs off her computer she decided not to buy, and judges said she could have been liable for more than 1,000 songs found on her computer," says AP

"A copy downloaded, played, and retained on one's hard drive for future use is a direct substitute for a purchased copy," the judges wrote, adds the story.

"They said her defense that she downloaded fewer songs than many other computer users 'is no more relevant than a thief's contention that he shoplifted only 30 compact discs, planning to listen to them at home and pay later'."

The words could almost have been written by the RIAA itself.

Music Gonzalez already owned

The picture of Mrs Gonzalez in the upper right is from a photo by Jim Newberry that appears in The Meter in which Bob Mehr writes Gonzalez used Kazaa, "to download songs she already owned on CD onto her computer. She wanted to be able to listen to them in any order, but didn't want to manually copy her whole CD collection onto her hard drive -- she and her husband own about 250. She also used Kazaa to download a few songs she didn't own, but only to 'listen to them and determine if they were something she would be interested in purchasing'.

"Of the roughly 1,000 songs she downloaded, Baker says, the overwhelming majority duplicated tracks on discs she'd paid for.

"In her deposition, Gonzalez testified that she and her husband spent about $30 per month on CDs, and that 'her ability to download music off the Internet for free did not affect how many CDs she and her husband ended up buying.'

"But the RIAA wasn't interested in splitting hairs or discussing intentions. Even if Gonzalez had copied only her own CDs onto her computer, the act of making those songs available on a file-sharing network - even accidentally and for just a few days - still would've been illegal.

"During the discovery phase, the record companies' attorney asked to see Gonzalez's CD collection. 'I said, *Great, go to her house, make a list,* says [her l;awyer, Geoff] Baker. 'And that was in an effort to make sure they understood that they were barking up the wrong tree here. That they were looking to go penalize one of their good customers.'

"Investigators photographed and catalogued each of Gonzalez's CDs; Baker claims that the record companies narrowed their suit to include just 30 songs after realizing they'd weaken their case by pursuing judgments on downloaded music Gonzalez already owned."

Meanwhile, in another component of the sue 'em all marketing and sales scheme, Organized Music member Sony BMG has been found guilty of selling CDs containing secret, and dangerous, SunnComm MediaMax DRM spyware which is installed on buyers' computers without their knowledge or permission.

With it, hackers can, "booby-trap the MediaMax files so that hostile software is run automatically when you install and run the MediaMax patch," say researchers.

Will the label properly be brought to book for this?

No chance.


Jon Newton is the editor of p2pnet.net and is a regular contributer to MP3 Newswire. Jon's site is devoted to the politics of digital music and his insights as well as those of his co-writers can be read there. We urge you to explore it.

Other MP3 stories:
Ipsos-Reid: Only 2% of Consumers Care About Legal Issues With Downloading Music
Santangelo Loses Lawyer. To Defend Herself in File Share Trial

 


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