The Truth about Jammie Thomas-Rassert and Copyright Law

The gist is that the Obama administration officials with the U.S. Department of Justice ruled last Friday that the $1.92M USD fine against music-downloader Jammie Thomas-Rassert is perfectly legal. If you haven't been following this case, Jammie was found guilty of illegal copying of two albums. I aim to answer several questions here: what does copyright violation have to do with stealing, what are the political and historical roots of copyright law, what are the comparative consequences of copyright violation and other crime, and what should be done as individuals about this problem. I'll try to reply with links if anything here is challenged.

I originally wrote this as a comment on an article at Inside Tech, but it was so long I doubt anyone is going to read it in that format.

She did not steal anything, first off. At common law, larceny is "the tresspassory taking and carrying away of the personal property of another with the intent to permanently deprive". That is theft. Two major elements are missing here: "carrying away" and "intent to permanently deprive". The former implies that the victim has lost something, the latter that the defendant has intent not only to gain, but to deprive the victim.

Let's get this straight: copyright violation is copying something without permission. It is not stealing, any propaganda from the IP industry notwithstanding. By any legal or rational convention, the two acts are only vaguely related. Copying without permission is against the law for entirely different reasons than theft/larceny, the elements of the legal definition are entirely different, and in a really bullshit twist, modern copyright law puts burden of proof of participation, intent, and damages on the defendant - meaning you are essentially guilty until proven innocent, which is against all legal precedent and principled thinking. All the prosecution has to prove is that a computer on your network offered to share the file(s) in question to at least one other person at least one time. Or more specifically, a node (computer, router, modem, etc) had the same internet address as your modem at about the same time, which is physically impossible to prove beyond a reasonable doubt anyway because of the way network technology works. That's a point that requires its own article to discuss.

Now let's talk political theory. What is copyright, exactly? Is file sharing communism? Let's examine that idea. Copyright is a state-granted monopoly on the ability to reproduce an intellectual work. That means that the state is backing up the copyright holder's claim with force. This is not a feature of laissez-faire capitalism, which holds that the state may not interfere with economic activity except to prevent exchange coerced through fraud or force. This is also not a feature of Marxism, in which the state owns all goods and property and distributes it to the public. We can reason from there that file sharing is also not Marxist, since file sharers do not propose a state which owns copyrighted works and distributes it to them for free. So if copyright law is not capitalist, and it's not Marxist, what is it?

State-granted monopoly is a feature elsewhere exclusive to medieval European feudalism, imperial mercantilism, and Mussolini's national socialism. In European feudalism, the king authorized or turned a blind eye to use of force, including assassination, in order to protect guild secrets. In mercantilism during the colonial era, for instance with Imperial Britain, one company, e.g. East India Trading Company, is granted exclusive authority over a market sector. In Mussolini's brand of socialism, which he said should be called corporatism, the state awards monopolies to favored corporations and competition is thought to be destructive. Mussolini's socialism was, you may recall, later adopted by national socialists in Germany, leading many to fairly call this fascist economic policy. I'm not calling the RIAA Hitler here for the sake of demonizing them (they do that enough on their own), just setting the record straight on political theory and history. Still the most accurate anti-filesharing propaganda poster would read, "Every time you illegally download an MP3, you're fighting SOCIALISM."

As Inside Tech reports, Jammie would have been fined around $1,000 for stealing the two albums from a store and actually depriving it of profits, vs. $1.92 million to copy them. Just to put this in perspective, you'd have to steal anywhere between 10 and 100 automobiles to get a similar penalty to sharing 2 albums on the internet. As a car thief, you'd actually profit, but as a copyright violator, you're paying out of pocket to do promotion and distribution for the recording artist. Before you dispute that, all independent studies show illegal copying has a neutral or positive effect on sales, while on the flip side the recording industry has been shown to have blatantly and knowingly lied to congress multiple times concerning their projected damages from copyright violation. In all fairness, maybe they should be paying you the going rate for album promotion.

Edit: as an aside, courts have been holding that debts incurred from copyright violation judgments cannot be discharged by bankruptcy. Since the debt holder in court judgments may use liens and petition the sheriff to recover their losses, that means if you get stuck with one of these massive judgments the offended party owns you for all intents and purposes for the rest of your life. Comparatively, if you had stolen a CD you'd spend a few weeks to a few months in prison, pay a small fine, and within a year or two recover a normal life.

What are we going to do about these egregious miscarriages of justice? We need to protest these laws by refusing to recognize them, and being politically active against them. Along with activism, the best thing to do is to practice civil disobedience. Fight back. Fight harder, fight smarter. If you are a file sharer, or otherwise engaged in any civil disobedience or political dissent, it is imperative that you understand data security. The three biggest things you can learn about to reduce your risk are: onion routing, deniable encryption, and public key cryptography. Please see the linked articles for explanations, I'm not going to repeat it here. The gist is that they will respectively grant you almost impenetrable anonymity, unbreakable file security and deniability and highly secure data exchange. Note that in the U.S. your 5th amendment rights against self incrimination mean you don't have to give up your encryption keys and passwords, but in Britain the law may compel you to do so. Also beware of key loggers, radio frequency emission interception (picking up the electronic signatures of your keystrokes remotely using sensitive EMF bugs) and other forms of "black-bag cryptography" where keys are simply stolen. Otherwise it is impossible even for government intelligence agencies to break strong asymmetric encryption at the moment.

As a citizen in a representative democracy you have not only a right but a duty to stand up to injustice, especially when perpetrated by the state. If you can somehow come away from all this thinking justice is being done in these copyright violation cases, please pray to whatever deity you believe in to save your sorry soul. Otherwise, you need to understand and apply all these concepts at a bare minimum if you're going to be serious about this. Do that, and we have a good chance of winning the fight, even if Obama and the Tories turn our respective countries into socialist police states. What are you waiting for? Get off your ass, get secure, and then get LOUD!