Since 2003, the Recording Industry Association of America has been filing lawsuits against individuals who use P2P programs to share copyrighted material over the Internet. These individuals are being sued for copyright infringement, because the RIAA believes they are stealing and distributing material for which they do not own a copyright. Most of these lawsuits are settled for a few thousand dollars, and they are seldom taken to court. Today, an abundance of media is available for free on the internet, and copyright owners are losing the ability to control the flow of their work. A distinction between sharing and theft must be made in order to shape the future of the digital world. By filing these exorbitantly expensive lawsuits, however, the RIAA is using the court's power to intimidate and exploit its potential customers. In addition, the lawsuits have not achieved the goal of reducing the use of P2P programs. The RIAA's file sharing lawsuits are unfair and ineffective, and there are much better solutions to the illegal file sharing problem. (New Paragraph). The RIAA is abusing the legal system with these unfair lawsuits. Because of a clause in copyright law, the RIAA can claim statutory damages from $750-$30,000 for each copyrighted song file an individual has in his or her "shared music" folder. The value of a single song on iTunes is only 99 cents. Because the financial risk is so high, almost no one is able to challenge the RIAA's infringement accusations, and make them prove their cases to the court. People should have the right to due process of law and a trial by jury, so it can be determined whether or not the courts believe making copyrighted files available online is actually infringement. (New Paragraph). Since these lawsuits have started in 2003, the number of people using file sharing networks has more than doubled. The RIAA is not achieving its goal of stopping the use of P2P programs with these lawsuits against random people, and the lawsuits should cease. It is time the RIAA began to move in a different direction. (New Paragraph). There are other ways the RIAA could reduce the incentive to share files online, especially among college students. If the recording companies joined together and licensed their music on a large scale to certain programs, and universities provided these programs for students, the need to download files illegally would be reduced. Some universities are trying to implement this strategy, but in order for it to be successful, the music programs must run on a mac as well as a PC, and the licensed songs must be downloadable to an iPod. Also, programs like iTunes could lower song prices incrementally as a user purchases more and more songs. (New Paragraph). The RIAA's side of the argument must be considered and respected, because many people are choosing to download songs illegally instead of paying for the material. Hard-working artists are being denied fair compensation, and their rights should not be neglected. Action must be taken to solve this problem, but it must be fair and it must have the potential to be successful. The RIAA's lawsuits will not fix anything. People must stand up to these powerful record companies, and work together to pave the way for a digital future composed of both freedom and fair compensation.

This is a court decision from the US District Court for the District of Maine.  It was made on January 25, 2008.  In the case, the RIAA sued 27 University of Maine students for copyright infringement, because of their use of the Gnutella file-sharing network.  9 of the students, referred to as “Does,” moved to dismiss the complaint, but in this decision the court rejected the motion.  The court said that infringement consists of, “..downloading and distribution of copyrighted sound recordings,” and that “…record companies have the exclusive right to reproduce [the recordings].”  Lastly, the court said that the students’ infringement was “willful,” and, “intentional.”
    In the decision, the court explained how the RIAA discovered that these students were sharing files.  It was explained that the RIAA hired a private company called MediaSentry to log onto the file-sharing network, and download music files from students who were sharing them.  MediaSentry then gave the RIAA the students’ IP addresses and the files in question.  The RIAA reviewed the list of files being shared to see if they were actually copyrighted material, and then listened to them to verify this.    After this determination, the RIAA gave the IP addresses to the University of Maine and asked them to identify the students.  The students were sharing from 81-2903 copyrighted files.
    Learning exactly how the RIAA identifies infringers was extremely important to my paper.  This case explains each step in the process of deciding to file the lawsuit, and what the RIAA’s definition of infringement is.  These details allow me to make a judgement of whether or not I think the lawsuits are fair, which is one of the main discussions of my paper.
    First of all, simply reproducing a copyrighted work should not be considered copyright infringement.  If a person legally purchases a CD, and wants to copy the files to his or her computer, he or she should definitely be allowed to.  If the user does not distribute these files, I don’t believe he or she is breaking the law.  Secondly, once these files are being shared on a P2P network, the RIAA claims that they listen to every song to verify that it is indeed copyrighted material, but I question whether or not that is true.  After reviewing thousands of file names, does the RIAA really take the time to listen to every single song? 
    Based on the RIAA’s process of finding infringers, it seems that people are getting caught for making files available on a P2P network, but not for actually downloading copyrighted files.  For example, if I downloaded a thousand songs and took them out of my shared folder, the RIAA would not be able to discover my actions.  Therefore, the people who upload files are considered criminals, but those who download and steal them are not necessarily prosecuted.
    The students being sued had from 81-2903 shared music files, and this makes me wonder how these specific 29 students were chosen.  Certainly there were other infringers who had more than 81 songs.  Assuming this is true, the RIAA gives no reason why these individuals were chosen.  It seems that the RIAA is suing people randomly, which isn’t a fair way to file lawsuits.  There needs to be more specific criteria.

This is a newspaper article by Amy Brittain that appeared in the Christian Science Monitor on June 18, 2007.  The article provides basic statistics about the RIAA’s file sharing lawsuits, makes an argument in support of the RIAA, and gives examples of solutions being implemented at some universities.  The article says that since 1999, physical music sales have declined 30 percent, and that two-thirds of college students’ music was illegally obtained.  Recording companies have suffered millions of dollars in losses, and the author reminds us that, “For every one Justin Timberlake, there are hundreds of sound-technicians, backup singers, and retail workers who are hurt by illegal downloading.”  As a result of the Digital Millenium Copyright Act in 1998, universities are protected from file-sharing lawsuits, and this is why individual students are being sued. 
    Some universities have tried to solve the problem by forcing students to install programs that block the use of P2P programs, and others have started to use campus-wide filters that “stop the flow” of copyrighted material. 
    This article is important to my paper because it gives examples of possible solutions that, in my opinion, are completely unfair to the students.  These solutions are the exact WRONG way to solve the file-sharing problem.  Blocking P2P programs is unfair because they can be used in many legal ways.  Students should be allowed to share non-copyrighted material over the internet as much as they please.  That is one of the basic functions of the internet.  This right should not be taken away because the RIAA is unhappy.  Also, where would these types of restrictions end?  Would universities eventually block email programs because copyrighted music files can be distributed by email?  Filters that block the distribution of copyrighted material are a better idea.  But what if the student has a fair use for the copyrighted material?  Shouldn’t he or she have access to this material to use in projects or presentations for media studies classes? 
    This article’s argument in favor of the RIAA goes against my thesis, but it does make sense.  There are many people who are hurt by copyright infringement, which is unfortunate, but a FAIR solution must be implemented to help these people.

This is the Copyright Law of the United States of America. I am referring to sections 501-504. In these sections of the law, copyright infringement is defined. The parts of the definition that are applicable to file sharing are that only the owner of the copyright can “reproduce the copyrighted work in copies,” and that only the owner of the copyright can distribute copies.
The interpretation of this law depends on whether or not file sharing should be viewed as legal or illegal. If the definition of a copy includes an mp3 file, then file sharers are most likely guilty of copyright infringement. However, the user of the P2P program isn’t actually distributing any copies. The program allows other users to access someone’s files, and download copies of them. Isn’t the downloader the one making the illegal copy? If I left a cassette tape in a room, and someone else came in, made a copy of it and ran away, would I be breaking the law?
Section 504 outlines the amounts of money that infringers should be sued for. It says the infringer should have to pay for “the copyright owner’s actual damages and any additional profits of the infringer.” In this case, the infringer makes no profit, and the actual damages are difficult to determine. The court would need to know how many people downloaded copies of one person’s copyrighted file. It is very possible that this number could be very low. Based on this logic, the lawsuits wouldn’t be very expensive. However, there is a statutory damages clause in the law that allows copyright owners to recover between $750 and $30,000 from the infringer per song, no matter the circumstances. And if the infringement is committed willfully, the maximum amount goes up to $150,000. (These high dollar amounts are a result of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. Previously, the range was $500 - $20,000.)
The statutory damages part of the law is one of the main reasons I believe the RIAA lawsuits are unfair. The court should have to determine the actual damages of the infringement, and no arbitrary dollar amount should exist. This part of the law makes it easier for the RIAA to exploit individuals without proof of damages. If a song costs about 99 cents, it is unlikely that one person’s sharing of the file would cause $750 in damages. The government needs to get rid of these statutory damages, or drastically lower the dollar amounts. I find it hard to believe that the Digital Theft Deterrence and Copyright Damages Improvement was passed in 1999, given how arbitrary and high the values are. It must have been pushed for by lobbyists.

This is a document called RIAA v. The People: Two Years Later, which is on the Electronic Frontier Foundation’s website.  It was written in 2005, which is two years after the file sharing lawsuits started.  The article provides information about the legality of the lawsuits along with their results, and it also shares personal stories about individuals who have been sued.  One interesting note is that the RIAA used to offer amnesty to anyone who deleted their copyrighted files and signed an agreement to stop file sharing, but some of these people were sued anyway.  The RIAA was sued for false advertising.
The EFF wants the public to know that the people being sued are chosen randomly, and there is no end in sight to the flood of lawsuits.  The lawsuits have not worked at all, and “Today, downloading from P2P networks is more popular than ever, despite the widespread public awareness of the lawsuits.”  The number of P2P users increases every month.  89 percent of high school students reported that they knew file-sharing was against the law, and that they would continue doing it anyway.  The EFF suggests cutting the prices of songs on iTunes (because there are 35 times as many songs downloaded illegally as there are downloaded on iTunes), or having the record companies collectively license music to individuals for a flat fee of around five dollars a month.
    The EFF shares the stories of many people who have been sued and are in terrible financial situations, to elicit the sympathy of the public.  For example, a 71 year-old grandfather was sued, along with a 12 year-old girl who had a single mother.
    This document is extremely useful to my argument because it provides statistical evidence that the lawsuits have not slowed down file sharing, which was their goal.  The RIAA wanted to use the lawsuits to educate people, but people clearly don’t care about the legality of their downloading.  P2P programs are extremely easy to design, and even if they add filters to the popular ones, other unfiltered applications will be created eventually.  The RIAA needs to take drastic action in the form of large-scale licensing, or their problems will never be solved.
    While I agree with the EFF on most accounts, I strongly disagree with their use of sob-stories to promote their views.  It is unfortunate that some people with very little income were sued by the RIAA, but a person’s financial situation should not affect whether or not they are sued.  If the RIAA is going to file lawsuits, they should sue the users with the most copyrighted material, regardless of their income.  The whole strategy of using lawsuits to stop file sharing, however, just doesn’t seem like it will ever work.  And hopefully, ISPs and universities will do their best to protect the identities of their users.

This is a journal article in a journal called Popular Music, and it is by Eamonn Forde.  It was written in 2004.  This article gives information about the state of file-sharing in 2004, and explains that record companies shouldn’t worry so much about it.  The article’s argument is that record companies will still be able to sell a large amount of CDs despite file sharing, and that there are other forms of media from which they can profit.  
    The film and TV industries are also becoming upset about the use of P2P networks to share files, because many of them are video files.  In other countries, the government has tried to help these industries with the use of levies.  In Germany, there are levies on PCs and CD-Rs that go to record companies.  And all over the world, record companies are flooding P2P networks with fake versions of songs to frustrate the users.  This is called “spoofing.”
    I doubt the “spoofing” tactic works very well, and the levy idea seems unfair to the consumer, who would be forced to pay higher prices for goods.  This article is important to my research because it suggests it might be best for the record companies to ignore P2P file-sharing.  In France, CD sales have been going up by 5 percent every year, and they also have P2P networks.  It is possible that the record companies may just need more creative marketing schemes to attract more customers.  Also, they need to take advantage of the market for music on cell phones, because that market is less likely to be affected by file sharing.  As the author says, “Online delivery is not the death knell for record companies.  It should be seen, ideally, as the wake up call they so dearly needed.”  If record sales are still increasing in countries that face the same file-sharing problems, American record companies need to try to emulate some of these other companies’ strategies.  They claim that their lawsuits are necessary, but maybe if they are more creative, they can avoid angering their customers and causing additional damage to their industry.

This is an article from November, 2001 in the Duke Law Journal.  The article is by Albert Z. Kovacs, and it questions the morality of the people who share copyrighted material.  The author uses a psychological argument to condemn anyone who uses the internet to steal songs, and says something must be done to change people’s mindsets.  He explains that in cyberspace, people’s identities are taken away.  They are identified only by an IP address, and not by a name.  They believe that no one can see their actions, and that no one can find out who they are.  He says that this is called “depersonalization.”  People want music to be free, and use file-sharing networks to get it, but this doesn’t make it morally right.  The author blames people’s attitudes about file-sharing on internet discourse.  For example, when someone downloads copyrighted material it is referred to as “sharing,” and not as theft.  Because music is available through these networks, people’s views are changed to the point at which they believe stealing is ok.  The proposed solution in this article is a display of power by the RIAA.  Kovacs explains, “The wild horse must be broken before it can be trusted alone in its stable.”  He means that people will stop stealing music once they are extremely scared of the consequences.
    This article is very thought provoking and it made me reconsider my stance against the RIAA.  I still think their lawsuits are arbitrary and unfair, but their intentions now seem to be legitimized.  For example, I don’t feel guilty downloading copyrighted music, but I would never walk into a record store and steal a CD.  Part of the reason many people are against the RIAA is because they want free music, but if we know what we are doing is morally wrong, why shouldn’t we be sued?  If I were in the recording artists’ shoes, I would want to be fairly compensated for my work.  This being said, even though I understand the RIAA’s intentions, I still think their actual lawsuits are not the best way to achieve their goals.  They choose random people to sue for unfair amounts, and this seems like nothing more than a strategy to scare people.  I think there is a better way to solve the problem, but I understand the RIAA’s frustration.

This is an entry from Charles Nesson’s blog.  Nesson is a law professor at Harvard University, and he is defending a man named Joel Tenenbaum who was sued for file sharing.  Nesson and Tenenbaum filed a countersuit against the RIAA, because the amount Tenenbaum would have to pay for damages would be over $1 million, which they believe to be unconstitutional.  In the entry, Nesson criticizes the fact that in 1976, lawyers and lobbyists created laws for the future of digital media, and that we must still abide by those today.  He is fighting not only the RIAA, but also the court system that is exerting power on behalf of the RIAA.  Nesson believes that claiming high damages is abusing the law.  He instructs us to, “Observe that the disproportion between actual damage caused by joel to the copyright holder and the damage mandated by the legislature to be given the copyright holder is in inverse proportion to the lobbying power of the copyright industry in the legislature compared to the lobbying power of joel and the teenagers like him who are meant to be frightened by the punitive damages being imposed.” 
    Nesson believes that people should legally be able to share music non-commercially, and that the public domain should consist of anything one can get for free on the Internet.  He thinks that the RIAA is trying to “manipulate the public mind to equate file sharing with theft.”
    I agree with Nesson on most of his points, and his ideas are probably the most important source to my paper.  The laws relating to copyrighted digital files need to be changed, and lobbyists should not be involved.  Right now, I believe that the RIAA is using the courts as its hitmen.  The courts are intimidating teenagers and carrying out every one of the RIAA’s orders.  This needs to be stopped, and fair practices need to be implemented; not the ones that rich copyright lobbyists push for.  The people being sued need a voice, and Charles Nesson has bravely taken that role.  The RIAA should not be using the courts to carry out an intimidation tactic, and the argument can be made that these cases should be tried in criminal, and not civil court. 
    Nesson believes that file sharing is not theft, which is his most debatable opinion.  From the RIAA’s perspective, their music is being stolen.  Are they guilty of manipulating us to believe this?  Or are Internet discourse and a desire for free media guilty of making us believe that it isn’t theft?  Both sides must be taken into account.
    Even if file sharing is considered theft, though, the damages being claimed are way too high.  This part of the law is definitely unconstitutional, and the laws need to be changed to accommodate today’s technology.  I am rooting for Nesson’s success.

NOTE: This article is difficult to find on Lexis-Nexis. Do a powersearch and specify "Minnesota Journal of Law, Science & Technology" as your source.

This is a journal article by a man named Daniel Reynolds who attends the University of Minnesota Law School. The article appeared in the Minnesota Journal of Law, Science, and Technology. The article gives background information about RIAA lawsuits, and proposes solutions to the file-sharing problem. The author says that the RIAA believes the lawsuits are necessary to make people respect copyrights and deter them from sharing files. The problem with this reasoning, however, is the actual result of the lawsuits. Since 2003, the number of people using file-sharing networks has more than doubled, and there have been 26,000 suits since then. The author continues by discussing the amount the file-sharers are asked to pay for a settlement. The RIAA can claim “statutory damages,” and demand $750 per song. Nearly all of the file-sharers settle, however, because legal fees are so high. A single mother named Jammie Thomas was sued for sharing files, and because the RIAA believed she did it willfully, they asked for $9,000 per song, totaling $222,000. The author believes that the RIAA is alienating the demographic they sell to with these expensive lawsuits.
The author proposes a few solutions to the file-sharing problem. First of all, he says that the government could change copyright law to make copyrights last for shorter periods of time, making less songs illegal to share. Secondly, he suggests that part of the P2P programs’ fees could be paid to the RIAA, along with part of the money paid for computers or blank CDs. These levies would be enforced if the RIAA guaranteed they would stop filing lawsuits. Lastly, the author suggests large-scale music licensing.
This article was helpful in many ways to my research. It shows that the file-sharing suits are ineffective, the settlements are unfair, and that a solution is needed. The lawsuits are simply not working to prevent file-sharing, and there are statistics to prove this. If the number of file-sharers hasn’t gone down, it seems clear that the RIAA isn’t trying to solve a problem, it is just trying to take money from students and other individuals. Secondly, charging $750 per song is absolutely ridiculous. These songs can be downloaded on iTunes for 99 cents, and it seems like these exorbitantly expensive settlement amounts are completely arbitrary. The RIAA is only angering the people it wants to sell music to, and needs a new approach.
I don’t think the government should place levies on things like computers and CDs to be paid to the RIAA, because not all people use these things for illegal purposes, and I don’t think copyright law needs to be changed. I think the best solution is large-scale licensing, like the author suggests. Here at Penn, the university has tried to prevent file sharing by giving students free access to Ruckus, a program that gives students access to many copyrighted songs. The problem with this solution is that Ruckus is not compatible with Macs, and the songs cannot be downloaded to mp3 players like iPods (without paying an additional $20 a semester). If universities offered programs like Ruckus that were compatible with all computer types, and paid the extra fees so students could play music on their iPods, there would be no incentive to download music illegally. I think this would be the best solution even though it would be expensive for the university. After all, we are paying the university tens of thousands of dollars per semester...

This is the defendant’s opposition to the plaintiffs’ motion to dismiss the counterclaims in the case of Sony BMG Music Entertainment et al. v. Joel Tenenbaum.  Joel Tenenbaum was sued by the RIAA for copyright infringement, and Charles Nesson, his attorney, filed a countersuit against the RIAA for abusing the court system.  The RIAA wanted to dismiss the counterclaims, and this is Nesson’s defense. 
    Nesson believes that the RIAA is trying to “…punish him (Tenenbaum) beyond any rational measure of the damage he allegedly caused.”  He believes that the RIAA is trying to FRIGHTEN the public, and its not actually seeking legitimate damages.  This intimidation is an abuse of the law.  Tenenbaum only shared 7 copyrighted songs illegally.  Nesson is challenging the constitutionality of the process, saying that due process of law is being neglected because of the “grossly excessive” statutory damages (a minimum of $750 per song with a potential maximum of $150,000).  He believes that Joel’s case should be tried in a criminal court, giving him a trial by jury.  He worries that the courts are giving “excessive prosecutorial power to private hands,” and compares the situation to hundred thousand dollar speeding tickets being given by self -interested police officers.  He reminds the court that Joel acted with no malice and made no profit, and wonders, “Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” 
    Basically, the RIAA is just trying to scare people away from file sharing networks, and their lawsuits are unfair because no one can challenge them without facing extremely high costs.  The RIAA and the courts are exploiting the public, and they must be challenged.  Laws made by lobbyist influence are allowing the RIAA to act as a bully, and all of these defendants deserve due process of law (a constitutional right by the 14th amendment).  These are criminal matters, and they should not be tried in civil courts.  I believe that the court needs to sit back and examine the whole situation, and hopefully realize that an abuse of power is taking place.  My paper will use these points to define the RIAA lawsuits as completely unfair.  Hopefully someday the courts will prevent the RIAA from filing blatantly unfair lawsuits that are extremely difficult to fight, and with Nesson at the forefront of the battle, that day could come soon.

NOTE: This article is difficult to find on Lexis-Nexis.  You must do a powersearch and specify "UCLA Entertainment Law Review" as your source.

This is a journal article in the UCLA Entertainment Law Review.  The article is by Kristy Wiehe, the Editor-in-Chief of the journal.  This article examines how the RIAA uses copyright law to sue individuals, and whether or not the RIAA’s interpretation of the law is correct.  The author first describes how P2P file-sharing programs work, explaining that most of them scan the user’s computer for media files, and place these files in a “shared” folder that is uploaded to the P2P network.  When the files are uploaded to the network, the user is making the files available for other users to download.  The RIAA claims that if these files are copyrighted material, then this “making available” is defined as copyright infringement.  In the Napster case in 2001, the court agreed with the RIAA’s view.  The author, however, disagrees with the RIAA’s interpretation of the law.  She contends that copyright law says it is illegal to distribute copies in the form of material objects to the public, and that the RIAA should have to prove that an actual transfer of the copyrighted material took place from one user to another.  Parts of copyright law are quoted in the article to make this point.  She believes that without a definitive “transfer of ownership,” the RIAA should not be able to sue someone.  The RIAA believes that the “making available” of files is considered distribution, and this is the fundamental disagreement between the RIAA and the author.
    In addition, the author compares the use of these lawsuits to stop file-sharing to an “effort to rearrange deck chairs on the Titanic.”  The problem is so large that suing a few individuals will most likely not fix it.  The solution proposed in the article is for the record companies to make it “economically rational” for consumers to pay for music files instead of downloading them illegally.  She suggests pricing that asymptotically approaches zero as the number of songs purchased increases.  Therefore, if a person downloads thousands of songs, they won’t have to make extremely high payments.
    I strongly agree with the author’s interpretation of copyright law, and I believe that the record companies should have to present more proof than a file being in a “shared folder” in order to file a lawsuit.  Also, the P2P programs should eliminate their scanning programs because there is a significant chance that they could incriminate an unknowing person who has legally obtained copyrighted work and stored it on his or her computer.  Proof of a transfer should be necessary for a lawsuit, and it is also questionable whether or not an mp3 file is a “material object.”  People are being sued without concrete proof of infringement, and the RIAA needs to be stopped from abusing the law to gain money.  This argument will be part of my contention that these suits are unfair. 
The author’s suggested business solution may be unfair to the record companies, but these companies certainly need to focus on making large-scale changes to their sales techniques.