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.
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 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 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.
Mark Cuban, creator of Broadcast.com and outspoken opponent of Youtube, directly compares Youtube to the original Napster website in this blog entry. He attributes Youtube’s quick success to two specific sources: “Free Hosting from any 3rd Party Site” and “Copyrighted music and video.” He goes on to make direct comparisons between Grokster, Napster, and Youtube. Napster was “the first to tell you it [pirating] wasn’t illegal.” He argues that the only reason Youtube hasn’t been brought to court multiple times already is that the studios are not sure what having so many clips available illegally means for them financially. Similarly to Napster, once the lawsuits begin, they will not stop until the service is forced to shut down. He observes that Youtube is remarkably similar to Napster, because users can simply open as many Youtube pages containing copyrighted songs as they want, and then listen to the songs as they would on Napster. Youtube will be hurt not just by lawsuits, but also by the wide availability of copyrighted content in legal online channels, such as NBC making clips available on its own site. Cuban states that as soon as Youtube is sued by copyright holders, it will be forced to find and remove all infringing content. This will leave the site, he argues, devoid of most appealing content.
While Cuban is correct in noting that there is a large amount of copyrighted material available on Youtube, he fails to take into account several key details. First, he states that Youtube will be sued for inducing others to commit infringement, just as Napster and Grokster were sued. Unlike Youtube, however, Napster and Youtube advertised themselves as sites which allowed users to download any music they wanted. They actually did induce users to visit the site for the purpose of downloading infringing material, whereas Youtube encourages users to visit its site to host user-generated content, evident from its slogan of “Broadcast Yourself.” Cuban also suggests that after copyrighted material such as TV shows is widely available in other locations and once copyright holders begin ordering their content to be removed, Youtube would be devoid of any content to set it apart from competitors. However, sites like Hulu, Joost, and services run by major Television studios have been online for over a year and Youtube is as popular as ever. This debunks the argument that Youtube would be unappealing once its copyright material was removed and other legal video-viewing services were established. Rather, users still visit the site for non-copyrighted material, and it continues to thrive, having just signed several deals itself with major content creators and TV Studios. Cuban’s main oversight is in the DMCA. He completely fails to take into account the fact that the DMCA Safe Harbor law removes Youtube from direct liability for any infringing videos that are posted on its service, so long as it removes them upon request of the copyright holder.