Facing the Kazaa Consequences

Like other publications, this very page recently questioned the role and tactics of record companies in the digital music marketplace. The Crimson may be cavalier about the impact of theft on our colleagues in the music community. After having watched thousands of regular, working class employees laid off and no longer in the music profession, we are not.

Whatever one might see as the future for record companies, the importance of their creative and business role to date cannot be denied. Record companies have invested enormous sums of money to find and develop talent, and to record and market music. They have been integral to the creative process, whether it is pairing a recording artist with the right song or helping to perfect that artist’s sound. On the business side, record companies have helped artists expose their music to the widest possible audience. It is well documented that record companies risk their capital knowing that only a few artists ever find that audience.

Record companies understand that the music industry is changing. They are evolving in an attempt to take advantage of the opportunities that new technologies offer for artists and fans. Record companies are actively partnering with new digital music services and experimenting with new products and business deals with artists to give music fans what they want when they want it. Only the future will tell us which models are successful and the roles record companies and others will play in delivering those models to consumers.

What we do know today is that no business can sustain itself if the product it produces is pervasively looted without consequences. There is no denying that the music industry has experienced a sharp decline in revenues in the past few years. A disproportionate share of this loss is attributable to music theft–a problem that is, unfortunately, quite prevalent on college campuses.

Which brings us to the case of the Recording Industry Association of America (RIAA) vs. Jammie Thomas, and the inaccurate and misleading statements expressed in the public sphere.

First, it has been suggested that the RIAA “picked” Thomas for this case. When we bring a legal action against an infringer, we do not know who that person is or any demographic information about them. We do not have the ability to screen defendants based on their perceived sympathy or anything else. We target theft; nothing more.

Second, Thomas herself decided to bring her case to trial, not us. We tried to settle the case. She refused. Of course, she has a right to have her day in court if she so chooses. But the decision to take the case to a jury was made by her.

Third, the implication that Thomas was found liable for infringement because she was out-gunned by an adversary with greater resources is simply false. The jury—twelve of Thomas’ peers from Minnesota—determined she committed copyright infringement. And they made that determination quickly and without reservation. One juror has openly stated: “She lied…I think she thought a jury from Duluth would be naïve. We’re not that stupid up here.”

Finally, our position has not been to request any sort of harsh punishment. Indeed, we did not even ask the jury to award a specific amount of damages. The jury decided the damage award after instruction from the judge. Based on some reports, jurors believed that the award should have been even higher.

The characterization of our lawsuits as attempts to stave off change and preserve the well-lined pockets of rich executives and artists is so 2003. It is not only a simplistic and unfair characterization, but it is out of step with those that have taken a serious look at the problems the industry is facing. It also ignores the simple fact that stealing is, as Harvard’s own Justice Breyer put it, “garden variety theft.”

One thing we all can agree on is the desire for the lawsuits to go away. Record companies would rather invest in new business models and focus on creating music than spend time and money filing lawsuits. We hope the day arrives soon when lawsuits are not necessary to foster a marketplace that rewards investment in creativity and compensates those who make the best music in the world.



Steven Marks is the executive vice president and General Counsel of the Recording Industry Association of America.