The RIAA’s Road to Perdition, and a Digital Copyright Primer

The way this is working is the RIAA – as a very well funded institution with lawyers out the ass – has about zero per unit cost to subpoena all of these file sharers, while for the targets, the cost in real and potential cost in money, time and emotional duress is very high. What we need is some kind of class-action response to this. Amy Harmon reports on the legal storm trooping in the NY Times:

The Recording Industry Association of America has obtained close to 1,000 such subpoenas over the last four weeks to more than a dozen Internet service providers, including Verizon, Comcast and Time Warner Cable, and several universities, including Boston College and the Massachusetts Institute of Technology, demanding the names of file swappers. Most Internet providers are notifying the unlucky subscribers by mail that they are legally required to turn over their contact information.

….”They could have used some other way to inform people than scaring the bejiminy out of them,” said a mother who received a copy of the subpoena last Wednesday, listing several songs that her 14-year-old son had made available for others to copy from his computer. “If someone had sent me a letter saying `this is wrong,’ you can bet your sweet potatoes that would have gotten my attention. This just seems so drastic.”

The ominous letters and a list of screen names culled from court filings that is circulating on the Web underscore the unusually personal nature of the industry’s latest effort to stamp out online piracy, which it blames for a 25 percent drop in sales of CD’s since 1999. Under copyright law, the group can be awarded damages of $750 to $150,000 for each copyrighted song that was distributed without authorization.

….The notion of paying up to $150,000 for each of the eight songs that the recording industry listed on the subpoena – not to mention lawyer fees of $200 an hour should the family decide to fight a lawsuit – still boggles her mind. “Hopefully when they find out he’s just a kid, they’ll drop it,” she said.

But not necessarily. Frustrated with the failure of warnings and educational campaigns to stem the flood of online music trading, the major music companies said on June 25 that they intended to sue hundreds of individuals as a form of deterrence.

“I guess people didn’t take it seriously, but we really are very serious about this,” said Cary Sherman, president of the Recording Industry Association of America. “We want the message to get across to parents that what their kids are doing is illegal. We are going to file lawsuits.”

Fear created by threat of disproportionate punishment creates resentment and hatred – sowing the seeds of love they are not.

some legal experts argue that the tactic is risky, particularly if the industry appears to be concentrating on families with no resources to defend themselves.

“The practice of filing thousands of lawsuits is a game of chicken, and not a sustainable model for the industry or the courts,” Mr. Zittrain said. “The overall puzzle for the industry is how to truly convince the public that this is in the public interest.”

He said there was no obvious historical analogue to the scattershot subpoenaing of individuals in copyright law enforcement, which has traditionally been aimed at businesses or people who are profiting from illegally copied material. He likened it instead to raids during Prohibition, or red-light cameras that catch drivers disobeying traffic laws when they think they are unobserved. Both have given rise to social outcry, Mr. Zittrain said, even though they were used simply to enforce the law.

….Some lawyers who were contacted by people who received notices from their Internet providers say the cases raise many questions because of the way the software in question works.

Some versions of KaZaA automatically designate certain folders on a computer as “shared,” so users may not have realized their personal music files, copied from legally purchased CD’s, were available to others.

Daniel N. Ballard, a lawyer with McDonough, Holland & Allen in Sacramento, Calif., said he was representing a Brooklyn woman who believed she had prevented her files from being accessible to the KaZaA network. He said computer intruders may have rearranged the files on his client’s hard drive without her knowledge.

The more people who aggressively contest this the better, as there are many holes in the process; but this is terribly expensive and time consuming for individuals. Working together would be much more efficient.

Mark Rasch elaborates on some of the legal angles in the Register:

The U.S. Constitution permits Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Under intensive lobbying by the movie, publishing and recording industries, Congress has nudged that “limited” time from the original 17 years in 1789, to the publisher’s life plus 75 years today — a time limit that the U.S. Supreme Court recently approved.

For this “limited” time, Copyright law essentially grants the author the exclusive rights to copy or reproduce the work, make derivative works, distribute copies of the work (sell, give away, lease or license), and to perform the work, and, of course, to keep others from doing the same.

Simple enough? Not hardly.

….A number of years ago, the U.S. Supreme Court dealt with a man named Dowling, who sold “pirated” Elvis Presley recordings, and was prosecuted for the Interstate Transportation of Stolen Property. The Supremes did not condone his actions, but did make it clear that it was not “theft” — but technically “infringement” of the copyright of the Presley estate, and therefore copyright law, and not anti-theft statutes, had to be invoked.

So “copying” is not “stealing” but can be “infringing.”

….copying is not always infringing. If the work is not copyrighted, if you have a license to make the copy, or if the work is in the public domain, you can copy at will. Also, not all “copies” are the same. Say you buy a CD and play it on your computer — technically, you have already made a “copy” onto the PC in the process of playing it, but that’s not an infringement.

Making an archive copy is okay too, as long as your retain the original. What about a transformative copy — say, making an MP3 out of a CD? You can do that, so long as you retain the original work. If the original CD get scratched, damaged or lost, you can probably burn the MP3 back to a CD (sans the really “sucky” titles), but this is not entirely clear.

…. if you make copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, it is not an infringement of the copyright, even if the copyright holder does not want you to do so.

This isn’t black and white, of course. In deciding whether a use is fair or not, courts will consider a number of factors: Did you make the copies for commercial purposes? Does the copy deprive the copyright holder of revenues? Did you copy all, or substantially all, of the work, or just a small portion? The less of the work copied, the less commercial and the less impact on the copyrighted work, the more likely it is to be considered “fair.”

….The problem for the RIAA and MPAA is that all they can see is that someone is copying a work — they cannot tell the purposes for which the work is being copied. Therefore, when they sign an affidavit to get a subpoena alleging a copyright “infringement,” all they really know is that a copy has been made, not that an infringement has occurred.

….The law imposes four kinds of liability for infringement. The simplest is direct infringement — meaning you or somebody under your direct control (your agent) actually infringes. A second type of infringement is contributory infringement or vicarious infringement — you aid someone else’s infringing activities, or you profit from their infringement and have the ability to control them. It is this theory that makes owners of P2P networks potentially liable.

A third category of infringement is implicated if you provide the technology to aid the infringement (e.g., the Sony Betamax case.) In that case, you are liable for the infringement others do with your technology, unless there is a “substantial non-infringing use” for your technology (e.g., time shifting TV shows.) Finally and most recently, the DMCA creates a new “circumvention” liability” — creating or disseminating technologies that are designed to circumvent a technological measure protecting a copyrighted work.