Les Misérables: Would Victor Hugo Applaud Huge Music Download Fines?

Portrait of “Cosette” by Emile Bayard, from the original edition of Les Misérables (1862). The author, Victor Hugo, was the instigator of the Berne Convention, which established international copyright to protect writers and artists.

OK, this post is bound to be controversial. I will absolutely publish any opposing points of view, provided they’re civil. However, I get to moderate the comments, and won’t publish any that overstep the bounds of civilized argument.

This week we heard that a Boston graduate student, Joel Tenenbaum, will probably have to declare bankruptcy after a jury awarded the music industry $645,000 in damages because he had “willfully violated the copyright” on 30 downloaded songs. The court heard that the 30 songs were only the ones on which the music industry (which brought the case) focused, but Tenenbaum admitted on the witness stand that he had downloaded and shared more than 800 songs between 1999 and 2007.

Last month, a federal jury in Minneapolis ruled that Jammie Thomas-Rasset must pay $1.92 million, or $80,000 on each of 24 songs, after a similar conclusion.

Associated Press, which reported the case, said the music industry typically offered to settle such cases for about $5,000, though it has said that it stopped filing such lawsuits last August, and is instead working with Internet service providers to fight the worst offenders. Cases already filed, however, were proceeding to trial.

The jury awards are draconian, no question. And you have to feel sympathy for those singled out for prosecution. But I’m not sure the music industry had much choice here. Presumably they made an offer to settle, which was refused. At which point, there’s no alternative but to bring a case to trial – otherwise you might as well tell every defendant just to refuse to settle…

Once the accused makes the decision to put the matter into the hands of a jury, it’s a crapshoot – as anyone who has watched some of the more outrageous examples of damages awarded in US cases can see.

The music industry’s often painted as a collection of “fat cat evil megacorporations oppressing the innocent”. However, it was not the music industry which instituted international copyright law. The Berne Convention was adopted in 1886, at the instigation of French author Victor Hugo – to protect creative people. (As of December 2008, there were 164 countries which were parties to the agreement.)

Unfortunately, the ease with which digital data can be copied has spawned a generation which thinks everything is free – or ought to be. A type designer friend of mine has referred to this generation as Generation P (for Parasite). That’s a bit unfair; digital theft is not committed only by the young…

In my view, it’s not enough to work only with the Internet service providers to tackle this issue.

I’m all for the democratization of content creation and distribution which the Internet has brought about. Now anyone can be an author, a musician, a film-maker, a type designer, an artist. All the old barriers to entry – equipment, distribution chains, etc – are now irrelevant. But some people are better at it than others, and some want to make it their career. They ought to be able to make a living – a good living, or a very good living indeed – if they are talented enough.

So I support bringing cases of copyright infringement. All computer users need to learn that stealing a set of digital bits that contain the work of someone else is still stealing from the creator of the work, whether those bits represent music, video, a book or a typeface design. And theft should carry a cost.

“Pour encourager les autres”, as another Frenchman – Voltaire – said in Candide.

I wonder what Victor Hugo – whose novel, Les Misérables, highlighted the lives of the French urban poor, would have made of it all…


9 thoughts on “Les Misérables: Would Victor Hugo Applaud Huge Music Download Fines?

  1. Timo

    Well, the larger reason behind online-piracy is, that untill recently there simply has not been a legal alternative which offers even near the same usability than just downloading the songs out from P2P network.That is changing (and has changed) for the music industry. iTunes and other services offering DRM-free music, which you can listen anywhere on any device you might own, greatly limits the need to download music illegaly. Services like Spotify have stopped many people from downloading any songs at all, because there's no real need. Just open the program, do a search and click and there, you have music. And it's legal too.Music industry has finally realized that business models which worked in 1980's and 1990's don't work that good anymore and need to be changed.Now I'm waiting that the tv and movie industry figures that out too, and we can get services which'll allow one to dowload the just aired episode of your favourite show in HD quality to your computer, and sit there to be watched when you feel like it and as often you like.Also, I'm not opposed to DRM itself, just badly implemented DRM as was the case with music industry.

  2. Richard Fink

    Bill,"All computer users need to learn that stealing a set of digital bits that contain the work of someone else is still stealing from the creator of the work, whether those bits represent music, video, a book or a typeface design. And theft should carry a cost."If the work has been "stolen", how is it that the creators of the work are still in possession of it?But let's let that go. Since stealing is stealing, then I assume you agree with those who, like Jack Valenti of the RIAA, feel that the term of copyright should be "forever minus one day". And if so, why do you feel entitled to use the "Portrait of Cosette" in your post without remuneration? Does Emile Bayard have no heirs entitled to inherit the fruits of his labors? (As if they were the ones who would get the money, anyway.)As far as the music industry's strategy, it will get them enemies, nothing else.What stupidity, to sue a kid who's got nothing just to prove some kind of a point?What the Internet has taught us is that it was never, ever copyright law that protected artists. It was the cost of reproduction.The copyright monopoly is granted by the public through it's representatives in Congress who were bought off, not by artists directly, but by the industries who had acquired the rights to the works of those artists, sometimes fairly sometimes not.And through it all, the public has never, ever had a seat at the table when any of this legislation was drafted. Royalties are a tax by another name. And we have always had taxation without representation when it comes to copyright.As you know, I've been a pretty vocal proponent for respecting the IP rights of those who produce fonts. That's only because I believe it's in the public's interests.However, I find the current copyright law, with a term of twice the lifetime plus 20 years of the work's creator, to be very much against the public's interest.It's absurd and, a very recent development with no reasonable justification ever offered, I might add.Copyright laws are useless if the public insists on nullifying them through its behavior.There aren't enough courts, lawyers, and judges to handle the volume.

  3. Bill Hill

    You're putting words in my mouth, Richard :)Author's lifetime + 20 years sounds pretty fair to me.If I'd spent years writing a great book, I'd like to think that was money in the bank, so I could be earning royalties for the rest of my life and my children would get some benefit.After that, content should become public domain.

  4. Richard Fink

    @billI knew you'd call me out, first thing, on putting words in your mouth! Perversely, that's why I tried. ;)Anyway, I've been through this "term of copyright" thing with bowerbird months ago, and I still can't get it right.For works created after 2002, it is:"70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first."Based on all the empirical evidence available, this is a preposterously bad deal for the citizenry who grant the monopoly in the first place.I didn't deliberately try to fool you, but obviously you think it could be rolled back substantially and still be quite fair.Me too. And I've got some other major beefs with the current copyright laws.If you read up on it, it's tough to find any IP scholars or lawyers who think that the current copyright laws are OK. Except, of course, for people like Judge Richard Posner who are clueless about the Internet, and industry mouthpieces.

  5. Bill Hill

    Yes, we need new copyright laws for the digital age. They should protect creative people, of whom there can now be many, many more.The term of protection should be reasonable. I picked "creator's lifetime + 20 years" off the top of my head because it seemed fair.There should also be reasonable "Fair Use".

  6. dan

    I agree 1000000 percent. Stealing is stealing. Theft is theft. The entire music download theft industry is a shame on an entire generation of thieves. We must learn what's right and what's wrong. Theft is theft. Put all the music that does not belong to you back. People think that because rock stars and movie stars are rich and famous and get US$20 million per movie, that's it's okay to steal their creative work. It's not. Wrong is wrong.RE:"Yes, we need new copyright laws for the digital age. They should protect creative people, of whom there can now be many, many more.The term of protection should be reasonable. I picked "creator's lifetime + 20 years" off the top of my head because it seemed fair."

  7. Steven

    Of course, your opinion is controversial, but I do agree. I recently got into an online spat with someone who thought that it was ok to post an entire Hollywood movie (which had been physically STOLEN from a warehouse) online because “the studio had made enough money on it.” I tried to find out who'd appointed him arbiter of how much money is "enough," but he never would tell me.I will admit to a certain level of hypocrisy – I've downloaded my share of free content. But I will not try to rationalize that it is not wrong to do so – definitely the province of "Generation P," and I don't believe that is too harsh a characterization.

  8. Bill Hill

    I don't download content. Once, I got a copy of an Ali Farka Toure CD from my son. I listened to it to see if I liked it, and when I did, ordered a copy from Amazon.People might think I'm naive or stupid. But I'm a musician and a writer. I'm working on my second CD, and a book, and I'd like people to buy them.I treat others' content as I'd like my own to be treated.


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