FukDatShhh.CoM

What on earth is going on with that $222,000 RIAA judgment against that poor woman in Minnesota? Is the system really that broken?

Why do you always ask questions that you know will have answers that you don’t like?

Come on — almost a quarter-million dollars for sharing 24 songs on Kazaa? No one even uses that anymore.

Well, the truth is that the system isn’t broken at all, really — it’s working exactly as it was designed. Under the rules in place now, anyone who willfully infringes a copyright is on the hook for at least $750 and a max of $30,000 per infringement. Since each song you share is a unique copyrighted work, that means you get hit with that penalty for every track in your shared folder. This obviously lead to some strange hypothetical results — sharing that copy of “Wave of Mutilation” triggers the exact same legal mechanisms as sharing all of, say, OS X or Vista, since those are considered single copyrighted works, but that’s how we determine damages in our system.

Well, so why were the damages so ridiculous in this case?

A range from $750 to $30,000 is pretty huge, and we may never know exactly why the jury in the Jammie Thomas case settled on $9,250 per infringement as their number — and most observers seem to agree that it’s a figure that is out of proportion with whatever harm she may have caused the labels. There is also no conclusive evidence that damages of this size have done anything to halt the growth of P2P file-sharing.

The real problem that’s being brought to light is that our system doesn’t always keep pace with the rapid changes in technology. Every system has flaws, and it’s incredibly unlikely that lawmakers, of all people, will be able to draft legislation forward-looking enough to avoid similar breakdowns in the future.

So why even bother? If we can’t get it right, why even try to impose all these limitations? It just seems to lead to things like DRM.

What you’re asking is more of a philosophical question than a legal one — what law students will recognize as a “policy question.” The copyright system is designed to reward creation and penalize unauthorized copying — which is exactly why those fines for willful infringement are so high. If you were an author and someone straight-up copied your work and re-distributed it, wouldn’t you go after them for as much as you could? Just look at the way we react to less-obvious copying situations, like those Apple ads that seem to lift a little more than they should.

Now, if you copy something in a non-willful way, the copyright owner has to show how much they were damaged and how, so we don’t drop the hammer as hard on that kind of copying. But the main idea — straight from the Constitution — is that the copyright system should promote the “useful arts” by giving authors the exclusive rights to profit from their works.

Whatever, I’m an coder and I license everything I write with an open-source license, so how on earth does this broke-ass system help me?

Because open-source licenses like the GPL and Creative Commons wouldn’t be able to exist without strong copyright law to back them up.

How does that work? I thought they were all viral and subversive and damn the man! Talk hard!

Calm down, Harry. While open-source licenses are incredibly innovative ways of turning copyright law inside-out, they still depend on the existence of copyright to make all those sexy viral provisions stick. That’s all a license is, after all — a set of conditions under which an author lets you use his / her work. If you don’t own anything, how can you enforce your rules? The reason why open-source licenses have power is because anyone who breaks them is liable for — you guessed it — regular, old-fashioned copyright infringement, and all the penalties that come with it.

So you’re basically saying that there are parts of the system that are a little out-of-date when applied to the modern tech landscape, but that overall things aren’t as bad as they seem?

Exactly.

This was so much easier when I just got to flame away about how broken everything was.

Don’t worry, you can still do that. We won’t tell anyone.

Thanks.

No problem, Mr. Emo Pants. Just try not to get your guyliner all over everything like last time.

Is it illegal to unlock my iPhone?

No!

Really?

Well, no, but…

I knew it.

Look, there are a lot of legal issues surrounding unlocking, but the most applicable law in the US is everyone’s favorite piece of legislation, the DMCA. Just like any other piece of code, the iPhone’s firmware is protected by the Copyright Act, and circumventing the access controls in place to get at that code is a violation of the DMCA. However, the Copyright Office issued six exemptions to the DMCA last year, one of which allows consumers to unlock their cellphones “for the sole purpose of lawfully connecting to a wireless telephone communication network.”

That’s great! What’s the “but?”

There are a lot of “buts,” actually. For example, it’s most likely not legal to unlock iPhones and sell them on eBay, because your “sole purpose” wouldn’t be to connect to a cell network — it would be to profit from the sale of unlocked phones. TracFone has been suing resellers that unlock its phones and getting settlements, even though this exemption exists. So you might want to put those dreams of being the exclusive iPhone supplier to the Saudi royal family to bed — for now.

Well, that’s not so bad.

There’s more. Just because Apple and AT&T can’t sue you for violating the DMCA, there’s nothing saying they can’t sue you under some other law. Remember, all the ruling says is that cellphone firmware isn’t protected under the DMCA when you unlock to lawfully connect to a wireless network. That’s a pretty narrow rule, and it’s most certainly not the same as a rule saying it’s legal to unlock your cellphone.

Wow, lame.

Still more. Under the DMCA, the Copyright Office is allowed to make these exemptions, but they only last for three years. Since the unlocking rule was published in November of last year, that means it’ll expire in November of 2009. Of course, we’ll probably be on the third generation of the iPhone by then, but it still doesn’t bode well for that unlocking business you were about to start.

Wait, I thought you said this was legal?

Well, the truth of the matter is that unlocking your iPhone probably isn’t going to get you in any trouble, as long you’re only doing it for your personal benefit. If that’s what you intend to do, go right ahead. Just be aware of the risks, and keep in mind that you’ve probably hosed your warranty, and that Apple might well stop supporting your phone.

Since when has Fukdatshhh.com cared about warranties?

(Whistles, walks away.)

We hate to do another Apple-related KYR so soon, but this week’s announcement of Apple’s pay-and-pay-again iPhone / iTunes ringtone maker (followed up by statements made by Apple VP Phil Schiller) has had a lot of people asking us the following question:

So, is it illegal to make my own ringtones?

No!

Come on.

No, really!

What’s the catch?

Nothing!

You wouldn’t be doing this if there wasn’t a catch.

Oh, alright. But you’re not going to like it.

I knew that.

It’s really not so bad — it’s just, you know. You’re going to hate it.

Spit.

Well, you’re on the same side as the RIAA on this one. Hurts, doesn’t it?

Impossible! How can that be?

Well, the RIAA wanted to be able to distribute ringtones of its artists without having to pay them big money to do so (surprised?), and it won a decision last year before the Copyright Office saying that ringtones weren’t “derivative works,” meaning they didn’t infringe on the copyright of the songwriter. It’s a little more complicated than that, but essentially, if the RIAA hadn’t won, ringtones would cost even more, since no one would be able to make them without a license from the songwriter.

But I just want to make ringtones from the music I already legally own.

As long as you’re talking about music you’ve ripped from a CD, go ahead — no one’s trying to stop you. Since making a ringtone doesn’t count as a derivative work, you’re not infringing any copyrights. Just don’t sell or distribute anything, and you should be fine. Funny how this piece of advice keeps coming up, eh?

So why won’t Apple let me make ringtones inside iTunes with tracks I’ve ripped from CDs?

Judging from the fact that the iTMS EULA prohibits the use of downloaded files as ringtones, we’d say it’s more than likely because Apple’s contracts with the various labels represented in the iTMS specifically forbid it. We haven’t seen them, but we’d bet that ringtones — and the licenses for using songs as ringtones — have their own lengthy section in Apple’s contracts, and that Apple isn’t allowed to sell files for use as ringtones without coughing up more dough. Steve has said as much, after all. Otherwise the selection would include more than just the 500,000 songs you can get right now.

We’re still not exactly happy with Apple’s decision to lock out the consumer like this. For example, why can’t we use our own GarageBand compositions as ringtones? We obviously own the rights to music we create. But we can certainly see why the labels would insist on pricing ringtone rights separately, since it’s such big business.

So basically it’s legal to make ringtones for my own personal use, but only because of the RIAA — and I’m not allowed to use iTMS-purchased music, and I still have to jailbreak my iPhone or use something like iToner.

Yep.

Damn, why do even the good answers suck?

Hey, it could be worse — Apple could have dropped the price of the 8GB iPhone by $200 just two months after… oh, balls.

Preface: There’s been a lot of discussion about the RIAA’s, shall we say “controversial” (and we’re being generous here) tactics in suing P2P users who download copyrighted content; especially this week, what with the EFF releasing its “RIAA v. The People: Four Years Later” report. But it’s never been easy to find information about the nuts-and-bolts of what happens when you get that first letter from the RIAA. We’re not going to get into our feelings about the RIAA and MPAA (you probably already know what we think), but since we’ve (read: Nilay) been involved in a couple successful defenses — and a lot of unhappy settlements — we thought we’d try and break down the process for you. We’re not telling you how to avoid or get out of trouble with the RIAA, just how it is that trouble usually operates.

Help! I’m being sued by the RIAA!

Wow, bad luck for you. The RIAA really only sues about 6,000 people a year, mostly those who use FastTrack clients like Kazaa. Users of other networks have been sued, of course, but it’s by far Kazaa users who get sued the most often, and generally those who have been unknowingly sharing files. That’s a drop in the bucket compared the to estimated nine million people who use P2P software every month.

That doesn’t help me at all.

Well, it’s important to think about these things in context. Also, it’s important that you take a moment to ask yourself a really essential question.

What’s that?

Did you do it?

What? No!

Look, if you REALLY didn’t share anything, you can skip on a couple paragraphs. But it’s really important to be honest with at least one person here, even if that person is just yourself. If you really did share files, you’re really not going to gain anything by fighting some noble battle. Especially if money is important to you. Did we mention how much money the RIAA’s legal team has? If the RIAA’s logs show the IP address associated with your internet connection as having downloaded certain files, chances are you’re going to end up paying one way or another.

Whatever, sellout.

Look, at this point it’s not really a moral issue, it’s a financial one — if you did what they say you did, you’re vastly better off paying the money and moving on. It’s not a criminal charge, and the terms of the settlement will be most likely be confidential, so it won’t come up again in your life. Paying a lawyer to fight and lose for you will likely just cost you more money, because the RIAA will get at least $750 for each track you’ve shared, and for the average P2P user that adds up fast.

There have been cases where users with open Wi-Fi networks have had their cases dismissed, but those are fairly rare — maybe half a dozen of the tens of thousands cases filed. Although it’s a sad truth, the reality is that once you get caught — really caught — infringing copyrighted materials, very few people have sympathy for you, least of all the courts. So, take a moment, convince yourself that sharing the entire a-ha back catalog was worth it, and call a lawyer who’s handled RIAA cases before to take care of your settlement, which is usually somewhere between three and five thousand dollars. It’s by far the cheapest option.

Well, that’s great, but I didn’t do anything wrong.

In that case, the first thing you should do is check and see what kind of letter you’ve gotten from the RIAA. Who is it from? If you’re a college student, there’s a good possibility it’s from your school, saying you might be sued. In that case you should STAY AWAY FROM THE RIAA. Don’t visit the settlement website, don’t call the hotline. The RIAA doesn’t know exactly who you are yet, so don’t up and go telling them.

Of course they know who I am! I got this letter, didn’t I?

The only thing the RIAA knows is that your IP address was sharing files — that letter was from your school. Every school deals with this differently, but you need to be in touch with the legal department at your school in order to begin clearing this up — not necessarily the RIAA. Again, don’t give the RIAA any more than you need to.

Good for the college kids, but I’m sitting here holding a notice of an actual lawsuit, and I didn’t share any files either.

In that case, you need to act right away. Make sure you’ve got documentation showing what kind of internet service you have, how long you’ve had it, and what kind of computers you have hooked up to your router. It would also be good to catalog all the music on your machines. Generally this information is all you’ll need to give a lawyer to get started on your case — and although the RIAA is stubborn, they will drop cases once it’s obvious that they’ll lose, because they are terrified of losing in court. Don’t wait one extra second to do this, however — the longer you hold off, the less likely the RIAA is to dismiss your case, and the less likely it is that you’ll get your attorney’s fees back if you end up going to court.

Man, this is really depressing.

It is, but the more information you have about this, the better. We’re not big fans of the RIAA’s scare tactics — and we’re pretty certain those tactics aren’t having any effect on filesharing — but we’re not trying to sugarcoat reality, either. Stay safe, stay respectful, and most of all – know your rights.