You could have......

Let me tell you a story about a couple who had a long drive to attend a relative’s wedding. Not wanting to drive all night, they stopped a hotel before 10pm to rest. Early next morning as they were checking out, the husband was surprised to see a bill worth $400 for one night’s stay. He immediately called for the manager. The latter explained that the hotel was an establishment with 5 star facilities such as an Olympic sized pool, 24 hour world class gym and sauna, 24 hour business center and 3 nightly broadway-type shows. The husband claimed that they just slept for the night to rest. The manager claimed that the couple could have used those facilities mentioned that is why the rate was so high. Frustrated, the husband wrote a check for $50. Upon presentment of the check, the manager protested the low amount. The husband then said “You see, I have a beautiful wife and I am charging you $350 for sleeping with her”. “But I did not!” bawled the manager. In response, the husband said, “Ah, but you could have…”

I began this article on a funny note to prepare you on what’s to come. Last year, the Minnesota District Court (a Federal court as opposed to a state court), in Capitol Records vs. Jammie Thomas convicted the defendant (a single mother) of distributing 24 songs from her computer. Ms. Thomas had a “shared folder” in her computer which was open to users in the Kazaa Peer to Peer (P2P) network. A jury convicted her of “making available” the songs for download. The ultimate fact in this case is that NO ONE downloaded a song from her computer.

Fortunately, the judge in that case is reviewing whether his instruction to the jury that “making available” as an element of infringement was valid. The copyright law community has been shocked by this issue and is asking legal experts to take sides.

Again, fortunately, in the Philippines, this type of trial is far from happening. Our internet community is definitely part of the “downloading” society (come on, you know who you are). So, if you have downloaded without permission, be glad that the Record Industry Association America cannot sue you here.

But this case and its current issue could have a chilling effect on the way record company owners can sue grandmothers whose grandsons are using their lola’s DSL to connect to Kazaa. You could be convicted even though no actual transfer of files occurred. What does this mean? To set an extreme example, you can be charged with attempted murder of someone in your house because you have a gun in your room. Because you could have shot that person!

The ruling in the U.S. follows an interpretation of an exclusive right of copyrighted work. The particular section reads: “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or be rental, lease or lending.” (17 U.S.C. § 106). Our law reads slightly different, Sec. 177.3 of R.A. 8293 (IP Code of the Philippines) states an exclusive right in “the first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership”.

Violations of any law should be strictly construed, more so if such violation provides a fine or criminal prosecution. By sale or other forms of transfer of ownership should remain shut to the construction that there was an actual transfer. In the case of Jammie Thomas, there was no such transfer, she just logged in and her “shared folder” became accessible to the public.

I am sure you are going to tell me that my argument would mean that those stores in the tiangge can’t be caught if no one buys. But hold on, those stores are selling obviously pirated material. Secondly, before any arrest can be made, there must be a sale to break the law (a requirement before search and seizure). What you see on TV are the raids to confiscate contraband. Third, there is no confusion as to the legality of the items.

Don’t get me wrong, I am all for copyright protection and burning all those pirated disks. But we should do it the right way. If we allow that what happened in Minnesota here, the slippery slope mentality would allow fortune tellers to charge double because we could have asked more questions or husbands not bringing along their beautiful wives.

If you have any questions on IP law please email me.