Over the past 9 years, the RIAA has refined how they go about enforcing their copyrights. During this time the technology used for detecting and tracking file sharing has improved and become more accurate. Basically, the RIAA’s focus began with file sharing services like Napster, then shifted to ISPs, then individuals, and is currently in the middle ground between individuals and ISPs. Universities were targeted as another ISP, and through technological measures, education, and policy changes, have mostly cooperated with the RIAA. A few others have not, like Jammie Thomas-Rasset, Tanya Andersen, Harvard, and the University of Oregon. Their collective resistance has caused some complications for the RIAA, which has had to argue for the constitutionality of their pre-litigation notices and DMCA subpoenas in court. As far as academic libraries are concerned, the university’s IT people, not the librarians, have had to deal with the RIAA, but libraries provide access to the Internet, which is where file sharing takes place. Once the RIAA has exhausted their efforts against universities, they may turn to lesser hotbeds for file sharing like public libraries. Effective planning and appropriate policy statements will prepare library staff with a course of action in case that happens.
Librarians will need to stay tuned into developments in litigation as more of the ambiguity of copyright law pertaining to peer-to-peer file sharing is clarified by our court system. This concludes my research for LIS 855, summer 2009.
Sunday, July 19, 2009
2008 to Present Day
In March of 2007, RIAA CEO Mitch Bainwol announced the organization’s enforcement efforts against copyright infringements would shift focus to campus file sharers. They began by sending out 400 prelitigation settlement letters to 13 universities coupled with letters sent directly to the respective institution’s presidents asking for their cooperation. In addition to these notices, the RIAA created a website called p2plawsuits.com where individuals who had received the letters could contact the RIAA and negotiate settlements before any lawsuits were even filed. Today, however, the website seems to be completely defunct; it is not being maintained and has failed to load on the last several times I have tried to access it. Besides using the threat of litigation, the RIAA has made a few suggestions to universities about how to nip campus file sharing in the bud, including proper education on copyright infringement, implementing technological measures to prevent file sharing, and providing an inexpensive alternative for sharing music to students like Ruckus. [1] Preliminary surveys of such services on campus have found that students are not embracing the alternate services, even when universities make the service available to students completely free of charge.[2]
Because the university acts like any other Internet Service Provider (IPS) like Verizon, the process for extracting the identity of campus file sharers is fundamentally similar to process of peer to peer file sharers at large. The infringer is first identified by their IP address, and the university receives a letter addressed to the unknown user of the IP address and is expected to identify the correct student and forward on the letter. If that happens, then the infringer can take whatever course of action they think best: contact the RIAA to settle or not and face a lawsuit. If the university does not cooperate or the student chooses not to, then the RIAA proceeds with a John Doe lawsuit and uses the full power of the usual discovery process to gain the identifying information and proceed into court.[3] After one year, has the RIAA’s efforts paid off? According to RIAA President Cary Sherman, the numbers are large at least: more than 5,400 letters were sent to universities which resulted in settlements out of court in roughly half the cases. Most settlements were for $3,000, which translates to almost $7 million dollars, but also almost 2,500 lawsuits that took their time wandering through the court system.[4] At the one year anniversary of the campus campaign, the return seems to be lukewarm but not as overwhelming as the RIAA had hoped. Nonetheless, Sherman forecasts this is just the beginning.
By April of 2008, universities began noticing a marked increase in the numbers of notices they are receiving from the RIAA. George Washington University, for instance, had been receiving approximately 10 notices per week, but claimed to have received 123 notices in one week alone.[5] While Cara Duckworth, RIAA Spokesperson, says that the RIAA has not changed their procedures for issuing the infringement notices, she did hint that the RIAA is improving their technological means for detecting infringement in the first place. University IT officials are concerned about the extra workload the RIAA’s notices places on their staff, who need to address each and every letter individually. Universities are generally responsive and helpful to the RIAA’s battle against peer-to-peer networks, but some like the University of Oregon have begun challenging the “unduly burdensome” notices which are placing strain on their resources.[6] Despite the RIAA’s promise to continue to pursue enforcement measures as long as the market demands it, the end result has been mixed. Some figures show that peer-to-peer usage is leveling off, but traffic on sites like Limewire and BitTorrent, which allows a user to share an entire album at a time, is up.[7]
After another 6 months of the same tactics and with a few notable mishaps under their belt (like when the RIAA filed suit against a deceased grandmother[8]), the RIAA took a different approach to enforcing their copyrights. Rather than continuing to take individuals to court, which many critics called a public relations nightmare for the RIAA, the trade industry organization has struck “graduated response” agreements with many of the major American ISPs.[9] Instead of notices to universities or lawsuits against individuals exposed through subpoenas for identifying information in John Doe cases, the RIAA will notify the ISP of a suspected infringer. The ISP will then become responsible in turn for notifying their user, and in the end may need to block their subscriber access to their network for repeated offenses. This saves the RIAA the expense of legal actions, and also means that personal identifying information about end users is not being turned over to the RIAA. At the time, this new approach seems like a win-win solution: the RIAA continues to curb illegal file sharing without dragging people through public trials and ISPs no longer have to face the issue of turning over identifying information about their customers to an outside group and can take steps to preserve the fair usage of their bandwith, since file sharers typically hog bandwith in the interest of uploading and downloading files. There was even some talk about making voluntary campus-wide music licenses available to universities, seen as some as an olive branch offering after years of persistent legal attacks on consumers, universities, and students.[10]
That announcement came in December of 2008. Now that it is July of 2009, has the RIAA stuck to its word and worked with ISPs to end peer-to-peer file sharing practices? It seems that no, they have not. The RIAA has pursued legal action against those whose cases were detected in the past, even if the filing itself is more recent and looks to be a new lawsuit. While some decry the RIAA as hypocrites, the RIAA claims they have no choice but to press forward.[11] What is the current status of RIAA efforts? According to a recent posting on the Ars Technica Tech Policy blog, the total figures on the RIAA’s lawsuits are unclear and inconsistent. Electronic Frontier Foundation’s attorney Fren von Lohmann estimated upwards of 35,000 filings by the RIAA, while the trade industry group cited 18,000 people in a recent federal court filing.[12] Why the discrepancy? The RIAA claims it is because some people were sued twice: once as a John Doe and once after their identity had been unveiled. The bottom line is that the legality of peer-to-peer file sharing is still facing vigorous litigation by the RIAA, and while some are standing up to Goliath like Tanya Andersen,[13] many more are settling before it gets to court. Important precedents are being set, and we will all need to keep a watchful eye on the decisions coming out of federal districts nationwide. With advancement in technologies that allow for tracking file sharers, anonymity of the World Wide Web is disappearing, and using shared terminals at campuses will not necessarily prevent the RIAA from coming knocking at your door.
Stay tuned for future developments.
[1] Bangeman, Eric. 2007. RIAA launches propaganda, lawsuit offensive against college students. Ars Technica. http://arstechnica.com/tech-policy/news/2007/03/8953.ars (Accessed on July 19, 2009).
[2] Fisher, Ken. 2005. Students nap for Napster. Ars Technica. http://arstechnica.com/old/content/2005/08/5179.ars (Accessed on July 19, 2009).
[3] Bangeman, Eric. 2008. Pass or fail? RIAA?s college litigation campaign turns one. Ars Technica. http://arstechnica.com/tech-policy/news/2008/02/riaa-college-lawsuit-anniversary.ars (Accessed on July 19, 2009).
[4] Ibid.
[5] Young, Jeffrey R. 2008. Recording industry steps up campus-piracy alerts, straining college technology offices. Chronicle of Higher Education. http://chronicle.com/free/2008/04/2668n.htm (Accessed on July 19, 2009).
[6] Bangeman, Eric. 2008. Campuses swimming in flood of infringement notices from RIAA. Ars Technica. http://arstechnica.com/old/content/2008/04/campuses-swimming-in-flood-of-infringement-notices-from-riaa.ars (Accessed on July 19, 2009).
[7] Ibid.
[8] Bangeman, Eric. 2005. The RIAA gets overzealous again in its battle against file sharing. Ars Technica. http://arstechnica.com/old/content/2005/02/4587.ars (Accessed on July 19, 2009).
[9] Anderson, Nate. 2008. No more lawsuits: ISPs to work with RIAA, cut off P2P users. Ars Technica. http://arstechnica.com/tech-policy/news/2008/12/no-more-lawsuits-isps-to-work-with-riaa-cut-off-p2p-users.ars (Accessed on July 19, 2009).
[10] Anderson, Nate. 2008. Voluntary campus-wide music licenses could stop the lawsuits. Ars Technica. http://arstechnica.com/old/content/2008/12/voluntary-campus-wide-music-licenses-could-stop-the-lawsuits.ars (Accessed on July 19, 2009).
[11] Anderson, Nate. 2009. RIAA: "we have no choice" but to file more named lawsuits. Ars Technica. http://arstechnica.com/tech-policy/news/2009/05/riaa-we-have-no-choice-but-to-file-more-named-lawsuits.ars (Accessed on July 19, 2009).
[12] Anderson, Nate. 2009. Has the RIAA sued 18,000 people... or 35,000? Ars Technica. http://arstechnica.com/tech-policy/news/2009/07/has-the-riaa-sued-18000-people-or-35000.ars (Accessed on July 19, 2009).
[13] Bangeman, Eric. 2008. Andersen attorney on RIAA suit: "They can't run now.” Ars Technica. http://arstechnica.com/tech-policy/news/2008/03/andersen-attorney-on-riaa-suit-they-cant-run-now.ars (Accessed on July 19, 2009).
Because the university acts like any other Internet Service Provider (IPS) like Verizon, the process for extracting the identity of campus file sharers is fundamentally similar to process of peer to peer file sharers at large. The infringer is first identified by their IP address, and the university receives a letter addressed to the unknown user of the IP address and is expected to identify the correct student and forward on the letter. If that happens, then the infringer can take whatever course of action they think best: contact the RIAA to settle or not and face a lawsuit. If the university does not cooperate or the student chooses not to, then the RIAA proceeds with a John Doe lawsuit and uses the full power of the usual discovery process to gain the identifying information and proceed into court.[3] After one year, has the RIAA’s efforts paid off? According to RIAA President Cary Sherman, the numbers are large at least: more than 5,400 letters were sent to universities which resulted in settlements out of court in roughly half the cases. Most settlements were for $3,000, which translates to almost $7 million dollars, but also almost 2,500 lawsuits that took their time wandering through the court system.[4] At the one year anniversary of the campus campaign, the return seems to be lukewarm but not as overwhelming as the RIAA had hoped. Nonetheless, Sherman forecasts this is just the beginning.
By April of 2008, universities began noticing a marked increase in the numbers of notices they are receiving from the RIAA. George Washington University, for instance, had been receiving approximately 10 notices per week, but claimed to have received 123 notices in one week alone.[5] While Cara Duckworth, RIAA Spokesperson, says that the RIAA has not changed their procedures for issuing the infringement notices, she did hint that the RIAA is improving their technological means for detecting infringement in the first place. University IT officials are concerned about the extra workload the RIAA’s notices places on their staff, who need to address each and every letter individually. Universities are generally responsive and helpful to the RIAA’s battle against peer-to-peer networks, but some like the University of Oregon have begun challenging the “unduly burdensome” notices which are placing strain on their resources.[6] Despite the RIAA’s promise to continue to pursue enforcement measures as long as the market demands it, the end result has been mixed. Some figures show that peer-to-peer usage is leveling off, but traffic on sites like Limewire and BitTorrent, which allows a user to share an entire album at a time, is up.[7]
After another 6 months of the same tactics and with a few notable mishaps under their belt (like when the RIAA filed suit against a deceased grandmother[8]), the RIAA took a different approach to enforcing their copyrights. Rather than continuing to take individuals to court, which many critics called a public relations nightmare for the RIAA, the trade industry organization has struck “graduated response” agreements with many of the major American ISPs.[9] Instead of notices to universities or lawsuits against individuals exposed through subpoenas for identifying information in John Doe cases, the RIAA will notify the ISP of a suspected infringer. The ISP will then become responsible in turn for notifying their user, and in the end may need to block their subscriber access to their network for repeated offenses. This saves the RIAA the expense of legal actions, and also means that personal identifying information about end users is not being turned over to the RIAA. At the time, this new approach seems like a win-win solution: the RIAA continues to curb illegal file sharing without dragging people through public trials and ISPs no longer have to face the issue of turning over identifying information about their customers to an outside group and can take steps to preserve the fair usage of their bandwith, since file sharers typically hog bandwith in the interest of uploading and downloading files. There was even some talk about making voluntary campus-wide music licenses available to universities, seen as some as an olive branch offering after years of persistent legal attacks on consumers, universities, and students.[10]
That announcement came in December of 2008. Now that it is July of 2009, has the RIAA stuck to its word and worked with ISPs to end peer-to-peer file sharing practices? It seems that no, they have not. The RIAA has pursued legal action against those whose cases were detected in the past, even if the filing itself is more recent and looks to be a new lawsuit. While some decry the RIAA as hypocrites, the RIAA claims they have no choice but to press forward.[11] What is the current status of RIAA efforts? According to a recent posting on the Ars Technica Tech Policy blog, the total figures on the RIAA’s lawsuits are unclear and inconsistent. Electronic Frontier Foundation’s attorney Fren von Lohmann estimated upwards of 35,000 filings by the RIAA, while the trade industry group cited 18,000 people in a recent federal court filing.[12] Why the discrepancy? The RIAA claims it is because some people were sued twice: once as a John Doe and once after their identity had been unveiled. The bottom line is that the legality of peer-to-peer file sharing is still facing vigorous litigation by the RIAA, and while some are standing up to Goliath like Tanya Andersen,[13] many more are settling before it gets to court. Important precedents are being set, and we will all need to keep a watchful eye on the decisions coming out of federal districts nationwide. With advancement in technologies that allow for tracking file sharers, anonymity of the World Wide Web is disappearing, and using shared terminals at campuses will not necessarily prevent the RIAA from coming knocking at your door.
Stay tuned for future developments.
[1] Bangeman, Eric. 2007. RIAA launches propaganda, lawsuit offensive against college students. Ars Technica. http://arstechnica.com/tech-policy/news/2007/03/8953.ars (Accessed on July 19, 2009).
[2] Fisher, Ken. 2005. Students nap for Napster. Ars Technica. http://arstechnica.com/old/content/2005/08/5179.ars (Accessed on July 19, 2009).
[3] Bangeman, Eric. 2008. Pass or fail? RIAA?s college litigation campaign turns one. Ars Technica. http://arstechnica.com/tech-policy/news/2008/02/riaa-college-lawsuit-anniversary.ars (Accessed on July 19, 2009).
[4] Ibid.
[5] Young, Jeffrey R. 2008. Recording industry steps up campus-piracy alerts, straining college technology offices. Chronicle of Higher Education. http://chronicle.com/free/2008/04/2668n.htm (Accessed on July 19, 2009).
[6] Bangeman, Eric. 2008. Campuses swimming in flood of infringement notices from RIAA. Ars Technica. http://arstechnica.com/old/content/2008/04/campuses-swimming-in-flood-of-infringement-notices-from-riaa.ars (Accessed on July 19, 2009).
[7] Ibid.
[8] Bangeman, Eric. 2005. The RIAA gets overzealous again in its battle against file sharing. Ars Technica. http://arstechnica.com/old/content/2005/02/4587.ars (Accessed on July 19, 2009).
[9] Anderson, Nate. 2008. No more lawsuits: ISPs to work with RIAA, cut off P2P users. Ars Technica. http://arstechnica.com/tech-policy/news/2008/12/no-more-lawsuits-isps-to-work-with-riaa-cut-off-p2p-users.ars (Accessed on July 19, 2009).
[10] Anderson, Nate. 2008. Voluntary campus-wide music licenses could stop the lawsuits. Ars Technica. http://arstechnica.com/old/content/2008/12/voluntary-campus-wide-music-licenses-could-stop-the-lawsuits.ars (Accessed on July 19, 2009).
[11] Anderson, Nate. 2009. RIAA: "we have no choice" but to file more named lawsuits. Ars Technica. http://arstechnica.com/tech-policy/news/2009/05/riaa-we-have-no-choice-but-to-file-more-named-lawsuits.ars (Accessed on July 19, 2009).
[12] Anderson, Nate. 2009. Has the RIAA sued 18,000 people... or 35,000? Ars Technica. http://arstechnica.com/tech-policy/news/2009/07/has-the-riaa-sued-18000-people-or-35000.ars (Accessed on July 19, 2009).
[13] Bangeman, Eric. 2008. Andersen attorney on RIAA suit: "They can't run now.” Ars Technica. http://arstechnica.com/tech-policy/news/2008/03/andersen-attorney-on-riaa-suit-they-cant-run-now.ars (Accessed on July 19, 2009).
Monday, July 13, 2009
Case Update
On June 18 of this year, a Minnesota jury handed down a verdict against Jammie Thomas-Rasset that even shocked the RIAA (plaintiffs): $1.92 million in damages for sharing 24 music files on Kazaa. For the second time Thomas-Rasset was found liable for willful copyright infringement, but the minimum for statutory damages would have been $18,000.[1] Her first trials was declared a mistrial after the judge reconsidered the jury instruction he selected; see my previous posts for more discussion of Thomas-Rassett’s first trial. Nonetheless, two juries have now found her file sharing behavior to be illegal, and the implications of this decision may be devastating to other peer-to-peer networks. Since this is all so recent, only time will tell how the RIAA will proceed: more lawsuits shooting for astronomical damages, more threats of litigation with the hope of settling, or just simply letting the dust settle where it will for awhile? For the meantime, while the RIAA decides on its next course of action in the wake of this history-making interpretation of the Copyright Act, one thing is certain—Jammie Thomas-Rasset is not ready to admit defeat. Her lawyers have announced that she intends to appeal,[2] or at least has asked for a new trial and a reduction in the damages award.[3]
[1] Anderson, Nate. 2009. Thomas verdict: willful infringement, $1.92 million penalty. Ars Technica. http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-retrial-verdict.ars (Accessed on July 13, 2009).
[2] Sandoval, Greg. 2009. Jammie Thomas will appeal, lawyer says. CNET News. http://news.cnet.com/8301-1023_3-10277701-93.html (Accessed on July 13, 2009).
[3]Sandoval, Greg. 2009. Jammie Thomas asks for new trial. CNET News. http://news.cnet.com/8301-1023_3-10280531-93.html (Accessed on July 13, 2009).
Sunday, July 12, 2009
From "John Doe" Lawsuits to Policy Changes
The precedent set by the Washington D.C. District Court of Appeals decision was incredibly important in determining the future of legal actions against ISPs or not, since the RIAA could no longer procure the information they were seeking from the ISPs. According the EFF’s Case Archive, this decision means that “copyright holders cannot use pre-litigation DMCA subpoenas to get identifying information for peer-to-peer filesharers and must instead file John Doe lawsuits and seek the information using ordinary discovery processes.”[1] So that is just what the RIAA did.
John Doe lawsuits name “John Doe” as an anonymous defendant when the defendant’s identity is unknown. This allows the plaintiff to seek the identity of the defendant using the power of civil discovery procedure because there is an ongoing court cases, which is quite a different situation than the RIAA issuing subpoenas under the DMCA before they had filed any kind of formal court action. As a result, the RIAA began to target individuals with their lawsuits and specifically hotbeds for file sharing, like universities. In the fall of 2002, the RIAA sent over 2,000 pre-litigation infringement notices to universities around the country. Their responses to this notice varied. Some focused on educating their network users like the Missouri University of Science & Technology, which implemented a short quiz about peer-to-peer networks, fair use, and copyrights before allowing downloads.[2] Others made policy changes restricting access to the university’s network unless certain conditions were met. For one extreme example, there were no conditions. As of April 25, 2007, Ohio University began blocking users from their network if they were peer-to-peer file sharing, as evidenced by the disproportionate amount of bandwith they would be using relative to other users. Although in their own electronic newsletter the University claims the crackdown is a result of the unfair usage of bandwith, the policy change occurred after a recent release of over 1,200 more pre-litigation letters, 120 of which went to Ohio University.[3] Partly over concerns about liability if litigation were to occur, or maybe because an estimated 120 hours of staff time that was spent dealing with these letters,[4] Ohio University is not alone in taking proactive measures to safeguard the institution from finding itself in court by removing themselves from the equation.
Over the next several years, the RIAA filed hundreds and thousands of lawsuits. By September of 2008, an estimated 30,000 lawsuits had been filed against individual file sharers, most settling out of court for $1-3,000.[5] One noteworthy case was Jammie Thomas. She was sued for $220,000 for sharing 24 music files on Kazaa, that’s $9,425 per file. This was the first time the RIAA had a jury trial; however, the jurors did not have a chance to decide. The judge decalred a mistrial because he reconsidered the jury instruction he had selected. The bigger issue was what the burden of prrof is for the RIAA: that Ms. Thomas made the file available at all (the RIAA’s argument) or that it was downloaded by others. The second burden, the RIAA contended, would be impossible to prove since the file transfers took advantage of a peer to peer network.[6] This issue still has not been addressed and may need to go before the US Supreme Court for a decision.
All of these efforts by the RIAA are an example of how copyright holders are fighting back against grassroots efforts to ensure access to information, like the creation and maintenance of a peer-to-peer file sharing network. Other copyright holders may need to go to similar lengths, challenging an individual’s use of copyrighted material in court. The interpretation of our court system of the DMCA and copyright law in general, which is ambiguous at best, will seriously impact access to certain kinds of materials. More importantly to libraries, it will impact the provision of access to if courts were to decide that the provider of the Internet connection were in some way liable for peer-to-peer file sharing. In my next post, I will talk about the RIAA’s most recent history and current status of efforts to bring civil suits for infringement.
[1] Electronic Frontier Foundation. 2003. RIAA v. Verizon case archive. EFF. http://www.eff.org/cases/riaa-v-verizon-case-archive (Accessed on July 12, 2009).
[2] Guess, Andy. May 15, 2008. Want to download? Take the quiz. Inside Higher Ed. http://www.insidehighered.com/news/2008/05/15/p2p (Accessed on July 12, 2009).
[3] Office of the Dean of Students. April 25, 2007. Ohio University announces changes in file-sharing policies. Ohio Students. http://www.ohio.edu/students/filesharing.cfm (Accessed on July 12, 2009).
[4] Ibid.
[5] Electronic Frontier Foundation. RIAA v. The People: Five Years Later. EFF. http://www.eff.org/wp/riaa-v-people-years-later (Accessed on July 12, 2009). [6] Kravets, Jason. Sept. 24, 2008. Judge Declares Mistrial in RIAA-Jammie Thomas Trial. Wired. http://www.wired.com/threatlevel/2008/09/not-for-publica/ (Accessed on July 12, 2009).
John Doe lawsuits name “John Doe” as an anonymous defendant when the defendant’s identity is unknown. This allows the plaintiff to seek the identity of the defendant using the power of civil discovery procedure because there is an ongoing court cases, which is quite a different situation than the RIAA issuing subpoenas under the DMCA before they had filed any kind of formal court action. As a result, the RIAA began to target individuals with their lawsuits and specifically hotbeds for file sharing, like universities. In the fall of 2002, the RIAA sent over 2,000 pre-litigation infringement notices to universities around the country. Their responses to this notice varied. Some focused on educating their network users like the Missouri University of Science & Technology, which implemented a short quiz about peer-to-peer networks, fair use, and copyrights before allowing downloads.[2] Others made policy changes restricting access to the university’s network unless certain conditions were met. For one extreme example, there were no conditions. As of April 25, 2007, Ohio University began blocking users from their network if they were peer-to-peer file sharing, as evidenced by the disproportionate amount of bandwith they would be using relative to other users. Although in their own electronic newsletter the University claims the crackdown is a result of the unfair usage of bandwith, the policy change occurred after a recent release of over 1,200 more pre-litigation letters, 120 of which went to Ohio University.[3] Partly over concerns about liability if litigation were to occur, or maybe because an estimated 120 hours of staff time that was spent dealing with these letters,[4] Ohio University is not alone in taking proactive measures to safeguard the institution from finding itself in court by removing themselves from the equation.
Over the next several years, the RIAA filed hundreds and thousands of lawsuits. By September of 2008, an estimated 30,000 lawsuits had been filed against individual file sharers, most settling out of court for $1-3,000.[5] One noteworthy case was Jammie Thomas. She was sued for $220,000 for sharing 24 music files on Kazaa, that’s $9,425 per file. This was the first time the RIAA had a jury trial; however, the jurors did not have a chance to decide. The judge decalred a mistrial because he reconsidered the jury instruction he had selected. The bigger issue was what the burden of prrof is for the RIAA: that Ms. Thomas made the file available at all (the RIAA’s argument) or that it was downloaded by others. The second burden, the RIAA contended, would be impossible to prove since the file transfers took advantage of a peer to peer network.[6] This issue still has not been addressed and may need to go before the US Supreme Court for a decision.
All of these efforts by the RIAA are an example of how copyright holders are fighting back against grassroots efforts to ensure access to information, like the creation and maintenance of a peer-to-peer file sharing network. Other copyright holders may need to go to similar lengths, challenging an individual’s use of copyrighted material in court. The interpretation of our court system of the DMCA and copyright law in general, which is ambiguous at best, will seriously impact access to certain kinds of materials. More importantly to libraries, it will impact the provision of access to if courts were to decide that the provider of the Internet connection were in some way liable for peer-to-peer file sharing. In my next post, I will talk about the RIAA’s most recent history and current status of efforts to bring civil suits for infringement.
[1] Electronic Frontier Foundation. 2003. RIAA v. Verizon case archive. EFF. http://www.eff.org/cases/riaa-v-verizon-case-archive (Accessed on July 12, 2009).
[2] Guess, Andy. May 15, 2008. Want to download? Take the quiz. Inside Higher Ed. http://www.insidehighered.com/news/2008/05/15/p2p (Accessed on July 12, 2009).
[3] Office of the Dean of Students. April 25, 2007. Ohio University announces changes in file-sharing policies. Ohio Students. http://www.ohio.edu/students/filesharing.cfm (Accessed on July 12, 2009).
[4] Ibid.
[5] Electronic Frontier Foundation. RIAA v. The People: Five Years Later. EFF. http://www.eff.org/wp/riaa-v-people-years-later (Accessed on July 12, 2009). [6] Kravets, Jason. Sept. 24, 2008. Judge Declares Mistrial in RIAA-Jammie Thomas Trial. Wired. http://www.wired.com/threatlevel/2008/09/not-for-publica/ (Accessed on July 12, 2009).
Tuesday, July 7, 2009
Early RIAA Efforts: Before Individual Lawsuits
In the early 2000s, the RIAA focused their attention on companies that facilitated file sharing as a means of curbing peer to peer file sharing of music. They targeted Napster in the summer of 2000, winning a landmark case when a federal judge in San Francisco issued an injunction ordering them to shut down their service pending trial.[1] At the time the opinion was released, the decision drew major coverage and was even called “one of the first legal confrontations pitting novel Internet technologies against the rights of intellectual property holders.”[2] Motivated by their recent legal victory, RIAA quickly targeted other companies who facilitate and intend to profit from massive file sharing networks such as Madster (formerly Aimster), StreamCast Networks, Grokster, and Sharman Networks, who most notably sustains Kazaa.[3] The most important aspect to emphasize about these imminent lawsuits is that the defendants are companies, not individual file sharers. In fact, these companies act as intermediaries for sharing music files. An end user can log in to their Napster account, or whatever service provider they choose, and download music from the provider’s servers. What about networks that do not use an intermediary? What about peer-to-peer networks, where the end users share files with each other directly? After the injunction was issued against Napster, it became clear that the RIAA or other copyright holders would have to file against the individuals to try to eradicate peer-to-peer networks. At the time, recording industry spokespeople called that move “highly unlikely”[4] to happen. That was July of 2000.
By the end of the summer of 2002, the vast weight of the entertainment industry began to widen their approach from suing companies to pressuring Congress to enlist the resources of the federal government in curtailing this criminal activity.[5] As I mentioned in my post from June 28, the copyright-holding interested parties in the entertainment industry began lobbying Congress to have the US Dept. of Justice begin to enforce the terms of the 1997 No Electronic Theft Act. Under this law, it is illegal for a person to share copies of copyrighted material with friends and family. If the infringement had a total value of $1,000 or more it was punishable by one year in prison; if the value was over $2,500 it was punishable by up to five years in prisons.[6] Fines up to $250,000 could also be imposed. This legislation was reactionary to the unsuccessful criminal prosecution of David LaMacchia in 1994, and was an attempt to tie up what became known as the Lamacchia Loophole. Copyright law provisions and penalties only applied when the individual made a commercial gain from their endeavors. LaMacchia, at the time a student at MIT, was not commercially-motivated, and even under the more general wire fraud statutes, the criminal charges against him were dismissed.[7] The NET Act allowed for the prosecution of individuals who are engaging in certain non-commercial copyright infringements, dictated by the value of the content being shared. Given the popularity of mass file sharing by this time, if the FBI was going to start cracking down on online music pirates, the implications would be far reaching to say the least. Millions of people engage in file sharing; are all of these people felons? According to then Attorney General John Ashcroft,[8] yes, and the focus shifted from software pirates and companies facilitating file sharing to individuals spreading illegal copies of movies, songs, and other copyrighted materials on peer-to-peer networks.
Besides these new declarations of impending criminal prosecutions, the RIAA continued to attempt to end file sharing practices. Two years after their victory against Napster, RIAA took advantage of a provision in the Digital Millennium Copyright Act (DMCA) that allows them to have a subpoena issued against an Internet Service Provider (ISP) for personal information of an individual subscriber if that person can be singled out as trafficking mass amounts of shared files, evidenced by the amount of files they store on the ISP’s servers. In August of 2002, the RIAA issued a subpoena to Verizon Communications; however, Verizon did not comply and instead questioned their liability because this was the first such subpoena requesting the identity of a peer-to-peer file sharer. Since the shared files were not being stored on their servers, Verizon challenged whether a DMCA subpoena was sufficient legal authority to open their customer’s records.[9] This attempt by the RIAA to extract an individual from the anonymity of the Internet illustrates how they had come to realize that the tide against illegal file sharing would not be turned merely by shutting down Napster and the like. The root of the problem leads back to the folks at home, work, or school who make the files available to the masses in the first place. Therefore a new chapter started when the RIAA began to target Universities as safe havens for unchecked file sharing. In the fall of 2002, RIAA, Motion Picture Association of America (MPAA), and other smaller trade groups collectively wrote a letter warning university top officials about the large numbers of students that use college resources for illegally sharing and disseminating music, video games, and movie files. The letter went out to more than 2,000 institutions around the country, strongly advising the universities to develop policies, action plans, and effective remedies to bring these activities down.[10]
Were these letters effective in curbing rampant copyright infringement violations??
To be continued…
Sources Consulted:
McCullagh, Declan. 2003. Perspective: The new jailbird jingle. http://news.cnet.com/Perspective-The-new-jailbird-jingle/2010-1071_3-982121.html (Accessed on July 7, 2009).
[1] Barnes, Cecily and John Borland. 2000. Judge issues injunction against Napster. CNET News. http://news.cnet.com/2100-1023-243698.html (Accessed on July 7, 2009).
[2] Ibid.
[3] Borland, John. 2000. Record labels mull suits against file-traders. CNET News. http://news.cnet.com/2100-1023-941547.html (Accessed on July 7, 2009).
[4] Barnes, Cecily and John Borland. op cit.
[5] McCullagh, Declan. 2002. File-swapping foes exert P2P pressure. CNET News. http://news.cnet.com/2100-1023-949533.html (Accessed on July 7, 2009).
[6] Ibid.
[7] Hylton, Jeremy. “Piracy case may set precedent,“ The Tech: Online Edition 114, no. 21 (1994). http://tech.mit.edu/V114/N21/lamacchia.21n.html (Accessed on July 7, 2009).
[8] McCullagh, Declan. 2002. DOJ to swappers: Law’s not on your side. CNET News. http://news.cnet.com/DOJ-to-swappers-Laws-not-on-your-side/2100-1028_3-954591.html (Accessed on July 7, 2009).
[9] McCullagh, Declain. 2002. Music body presses antipiracy case. CNET News. http://news.cnet.com/Music-body-presses-antipiracy-case/2100-1023_3-954658.html?tag=txt (Accessed on July 7, 2009).
[10] Borland, John. 2002. Hollywood chases down campus pirates. CNET News. http://news.cnet.com/Hollywood-chases-down-campus-pirates/2100-1023_3-961637.html (Accessed on July 7, 2009).
By the end of the summer of 2002, the vast weight of the entertainment industry began to widen their approach from suing companies to pressuring Congress to enlist the resources of the federal government in curtailing this criminal activity.[5] As I mentioned in my post from June 28, the copyright-holding interested parties in the entertainment industry began lobbying Congress to have the US Dept. of Justice begin to enforce the terms of the 1997 No Electronic Theft Act. Under this law, it is illegal for a person to share copies of copyrighted material with friends and family. If the infringement had a total value of $1,000 or more it was punishable by one year in prison; if the value was over $2,500 it was punishable by up to five years in prisons.[6] Fines up to $250,000 could also be imposed. This legislation was reactionary to the unsuccessful criminal prosecution of David LaMacchia in 1994, and was an attempt to tie up what became known as the Lamacchia Loophole. Copyright law provisions and penalties only applied when the individual made a commercial gain from their endeavors. LaMacchia, at the time a student at MIT, was not commercially-motivated, and even under the more general wire fraud statutes, the criminal charges against him were dismissed.[7] The NET Act allowed for the prosecution of individuals who are engaging in certain non-commercial copyright infringements, dictated by the value of the content being shared. Given the popularity of mass file sharing by this time, if the FBI was going to start cracking down on online music pirates, the implications would be far reaching to say the least. Millions of people engage in file sharing; are all of these people felons? According to then Attorney General John Ashcroft,[8] yes, and the focus shifted from software pirates and companies facilitating file sharing to individuals spreading illegal copies of movies, songs, and other copyrighted materials on peer-to-peer networks.
Besides these new declarations of impending criminal prosecutions, the RIAA continued to attempt to end file sharing practices. Two years after their victory against Napster, RIAA took advantage of a provision in the Digital Millennium Copyright Act (DMCA) that allows them to have a subpoena issued against an Internet Service Provider (ISP) for personal information of an individual subscriber if that person can be singled out as trafficking mass amounts of shared files, evidenced by the amount of files they store on the ISP’s servers. In August of 2002, the RIAA issued a subpoena to Verizon Communications; however, Verizon did not comply and instead questioned their liability because this was the first such subpoena requesting the identity of a peer-to-peer file sharer. Since the shared files were not being stored on their servers, Verizon challenged whether a DMCA subpoena was sufficient legal authority to open their customer’s records.[9] This attempt by the RIAA to extract an individual from the anonymity of the Internet illustrates how they had come to realize that the tide against illegal file sharing would not be turned merely by shutting down Napster and the like. The root of the problem leads back to the folks at home, work, or school who make the files available to the masses in the first place. Therefore a new chapter started when the RIAA began to target Universities as safe havens for unchecked file sharing. In the fall of 2002, RIAA, Motion Picture Association of America (MPAA), and other smaller trade groups collectively wrote a letter warning university top officials about the large numbers of students that use college resources for illegally sharing and disseminating music, video games, and movie files. The letter went out to more than 2,000 institutions around the country, strongly advising the universities to develop policies, action plans, and effective remedies to bring these activities down.[10]
Were these letters effective in curbing rampant copyright infringement violations??
To be continued…
Sources Consulted:
McCullagh, Declan. 2003. Perspective: The new jailbird jingle. http://news.cnet.com/Perspective-The-new-jailbird-jingle/2010-1071_3-982121.html (Accessed on July 7, 2009).
[1] Barnes, Cecily and John Borland. 2000. Judge issues injunction against Napster. CNET News. http://news.cnet.com/2100-1023-243698.html (Accessed on July 7, 2009).
[2] Ibid.
[3] Borland, John. 2000. Record labels mull suits against file-traders. CNET News. http://news.cnet.com/2100-1023-941547.html (Accessed on July 7, 2009).
[4] Barnes, Cecily and John Borland. op cit.
[5] McCullagh, Declan. 2002. File-swapping foes exert P2P pressure. CNET News. http://news.cnet.com/2100-1023-949533.html (Accessed on July 7, 2009).
[6] Ibid.
[7] Hylton, Jeremy. “Piracy case may set precedent,“ The Tech: Online Edition 114, no. 21 (1994). http://tech.mit.edu/V114/N21/lamacchia.21n.html (Accessed on July 7, 2009).
[8] McCullagh, Declan. 2002. DOJ to swappers: Law’s not on your side. CNET News. http://news.cnet.com/DOJ-to-swappers-Laws-not-on-your-side/2100-1028_3-954591.html (Accessed on July 7, 2009).
[9] McCullagh, Declain. 2002. Music body presses antipiracy case. CNET News. http://news.cnet.com/Music-body-presses-antipiracy-case/2100-1023_3-954658.html?tag=txt (Accessed on July 7, 2009).
[10] Borland, John. 2002. Hollywood chases down campus pirates. CNET News. http://news.cnet.com/Hollywood-chases-down-campus-pirates/2100-1023_3-961637.html (Accessed on July 7, 2009).
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