Conflict of Civilizations

No, not militant Islam against the West, although there are certainly elements of authoritarianism vs. freedom of expression. No, I’m talking about the RIAA against the 60 million Americans who are file sharers, which comes to a head this week:

On this there has been virtually no dispute: People who share copyrighted music online with strangers are breaking the law.

Several federal judges have held as much in cases against file-sharing networks such as those of Napster Inc., MP3.com Inc. and Grokster Ltd. Even the most ardent defenders of peer-to-peer networks acknowledge that many users run roughshod over copyright rules.

But that conventional wisdom has never been tested in a case pitting copyright holders against individual file sharers.

That could change as early as this week. The recording industry is poised to sue potentially hundreds of people who offer free music online – an unprecedented action expected to ripple across the music business and the community of 60 million people in the United States who use file-sharing networks.

At the very least, the lawsuits filed by the Recording Industry Assn. of America probably would provide a much clearer guide to just what’s allowed as lawyers tease out previously unheard defenses and argue over the nuances of copyright law. At most, the suits could upend conventional wisdom about online piracy.

….For those who fight the suits, a key goal will be to show that enough of the facts are in dispute that they deserve to have their cases go before juries. Given that half the Internet users in the United States have used a file-sharing network, the odds are high that a jury member would know someone who has downloaded music improperly. Those jurors could be sympathetic, and multiple trials could stretch the record industry’s resources.

“If everyone fights it, they lose,” Singleton said. “The federal courts will shut down.”

Spontaneous mass support could conceivably erupt as well. One of the four college students sued by the RIAA this year for running a small peer-to-peer network asked for donations through a Web site and recouped all of his $12,000 settlement costs.

Juries might also consider something they are not supposed to under copyright law: intent. One anticipated defense is that any file sharing was accidental.

….The U.S. Supreme Court, when it legalized the videocassette recorder by a 5-4 vote, ruled that what it called “time-shifting” – that is, taping a show now to watch later – is fine. The law on “space-shifting,” which includes ripping and arguably downloading copies, is less clear.

The U.S. 9th Circuit Court of Appeals in San Francisco authorized sale of the Rio portable MP3 player in 1999 and made comments favorable to space-shifting, implying that moving a purchased song from one format to another is permissible.

….The Copyright Act lists four factors that must be weighed in determining when an act qualifies as fair use: the purpose of the copying, including whether it is commercial or educational; the nature of the work; the amount of the work that is copied; and the effect of the copying on the market for the work.

….Nonetheless, individuals who try a fair-use defense have a chance of winning on the first and fourth tests, some experts believe. Theoretically, they could fight to a draw. “Nobody’s really sure how far it goes,” said Tyler Ochoa, a copyright professor at Santa Clara University’s law school. [LA Times]

Now here is how the RIAA is trumpeting the events of the week:

The Recording Industry Association of America (RIAA) announced today that its member companies have filed the first wave of what could ultimately be thousands of civil lawsuits against major offenders who have been illegally distributing substantial amounts (averaging more than 1,000 copyrighted music files each) of copyrighted music on peer-to-peer networks. The RIAA emphasized that these lawsuits have come only after a multi-year effort to educate the public about the illegality of unauthorized downloading and noted that major music companies have made vast catalogues of music available to dozens of new high-quality, low-cost, legitimate online services.

At the same time, the RIAA announced that the industry is prepared to grant what amounts to amnesty to P2P users who voluntarily identify themselves and pledge to stop illegally sharing music on the Internet. The RIAA will guarantee not to sue file sharers who have not yet been identified in any RIAA investigations and who provide a signed and notarized affidavit in which they promise to respect recording-company copyrights.

“For those who want to wipe the slate clean and to avoid a potential lawsuit, this is the way to go,” said Mitch Bainwol, RIAA Chairman and CEO. “We want to send a strong message that the illegal distribution of copyrighted works has consequences, but if individuals are willing to step forward on their own, we want to go the extra step and extend them this option.”

“Nobody likes playing the heavy and having to resort to litigation,” said RIAA president Cary Sherman. “But when your product is being regularly stolen, there comes a time when you have to take appropriate action. We simply cannot allow online piracy to continue destroying the livelihoods of artists, musicians, songwriters, retailers, and everyone in the music industry.”

Since the recording industry stepped up the enforcement phase of its education program, public awareness that it is illegal to make copyrighted music available online for others to download has risen sharply in recent months. According to a recent survey by Peter D. Hart Research Associates, fully 61% of those polled in August admitted they knew such behavior was against the law-up from 54 percent in July and 37 percent in early June, prior to the announcement.

“We’ve been telling people for a long time that file sharing copyrighted music is illegal, that you are not anonymous when you do it, and that engaging in it can have real consequences,” said Sherman. “And the message is beginning to be heard. More and more P2P users are realizing that there are dozens of legal ways to get music online, and they are beginning to migrate to legitimate services. We hope to encourage even the worst offenders to change their behavior, and acquire the music they want through legal means.”

Over the past year, the RIAA has also worked closely with the university community to combat piracy. In recognition of the seriousness of the problem, colleges across the country are implementing new restrictions-and issuing severe warnings-to discourage the swapping of pirated music and movies over high-speed campus Internet connections.

Additional education efforts include more than four million Instant Messages sent since May directly to infringers on the Kazaa and Grokster networks warning them that they are not anonymous when they illegally offer copyrighted music on these networks and that they could face legal action if they didn’t stop. The RIAA sent such a warning notice to virtually every Kazaa and Grokster user who was sued today.

“Obviously, these individuals decided to continue to offer copyrighted music illegally notwithstanding the warnings,” said Sherman. “We hope that today’s actions will convince doubters that we are serious about protecting our rights.”

In today’s first round of lawsuits, RIAA member companies filed copyright infringement claims against more than 250 individual file sharers.

The RIAA announced on June 25 that it would be gathering evidence in order to bring lawsuits in September against computer users who illegally distribute copyrighted music through such peer-to-peer file distribution networks as Kazaa and Grokster. Individuals caught distributing copyrighted files on Kazaa, Grokster, Imesh, Gnutella, and Blubster were targeted in this initial round.

Since it announced its lawsuit plans, the RIAA has been contacted by a number of illegal file sharers expressing concern over their actions and wanting to know what they could do to avoid being sued. In response, the RIAA has decided not to pursue users who step forward before being targeted for past illegal sharing of copyrighted works. Instead, those who want to start fresh will be asked to sign a declaration pledging they will delete all illegally obtained music files from their hard drives and never again digitally distribute or download music illegally. Detailed information on how to apply and qualify for this amnesty is available at the web site www.musicunited.org.

Over the past year, an unprecedented campaign by a coalition of songwriters, recording artists, music publishers, retailers, and record companies has heightened music fans’ awareness of the devastating impact of illegal file sharing. A series of print and broadcast ads featuring top recording artists, as well as numerous press interviews by music industry figures, have conveyed the message that file sharing not only robs songwriters and recording artists of their livelihoods, it also undermines the future of music itself by depriving the industry of the resources it needs to find and develop new talent. In addition, it threatens the jobs of tens of thousands of less celebrated people in the music industry, from engineers and technicians to warehouse workers and record store clerks.

At the same time, the industry has responded to consumer demand by making its music available to a wide range of authorized online subscription, streaming and download services that make it easier than ever for fans to get music legally and inexpensively on the Internet. These services also offer music reliably, with the highest sound quality, and without the risks of exposure to viruses or other undesirable material.

Federal law and the federal courts have been quite clear on what constitutes illegal behavior when it comes to “sharing” music files on the Internet. It is illegal to make available for download copyrighted works without permission of the copyright owner. Court decisions have affirmed this repeatedly. In the recent Grokster decision, for example, the court confirmed that Grokster users were guilty of copyright infringement. And in last year’s Aimster decision, the judge wrote that the idea that “ongoing, massive, and unauthorized distribution and copying of copyrighted works somehow constitutes ‘personal use’ is specious and unsupported.”

It’s certainly more up in the air than that – see the last portion of the LA Times story cited above – but the hour of reckoning is upon us, and soon we will know much more about digital copyright law than we do now, than ANYONE knows now.

I want to see creators get paid – no question – but I don’t believe the RIAA’s current path – or indeed the state of copyright, especially digital copyright – is in the public’s or the creative sector’s ultimate interest.