This project is about the future of the Pirate Party, whether their recent attainment of an EU Parliament seat launches them into a promising future or if their strength is simply the tenuous reaction of young file sharers to the Pirate Bay trial. I would also like to address the party's focus on the retention of privacy and what the party could be capable of should they prove a tenable force in influencing internet policy.

A relevant topic that has interested me is the way the RIAA has transformed the function of copyright law in the modern world in regards to the music industry and file sharing. Copyright law is supposed to encourage the flow of information, but the RIAA has been trying and succeeding in restricting this flow of information in their dealings with file-sharing offenders. They have instilled a certain fear in people so that they will never share files again, becoming a monopolizing faction in copyright law. They have the money and the legal backing to bully and intimidate the people they sue into settling out of court, even though most of the time they lack sufficient evidence and the practice of obtaining that evidence is of questionable legality. Recently however, people have started to stand up against the RIAA. Since the RIAA sues hundreds of people a day and therefore are still settling with ninety-nine of them, they seem to the public to not be making a difference. This is untrue however, because those that stand up to the RIAA are quietly taking them down bit by bit. The unconstitutional practices of the RIAA have since decreased due to the public outcry they have received, counterarguments won by the defendants such as legal fees have increased because the defendants press the RIAA about their lack of evidence, and more cases are being brought to court as public awareness increases. It does not take a rocket scientist to realize the RIAA has been taking advantage of people when one finds out that the RIAA has sued a dead person, a thirteen year old girl, and a divorced woman without a computer.

 

This is an article explaining the tactics used by the RIAA in obtaining information and evidence on illegal file-sharing, from information given by an RIAA worker himself. The RIAA hires a third party company, MediaSentry, to track down illegal file-sharers. That company then runs different peer-to-peer file-sharing programs and searches for songs specifically owned by the RIAA. They are then able to track down the specific IP address and the ISP from which the songs they find came from. They do not actually download the song however, using a digital handshake instead to let them know that the song is available for download. This complicates the matter because it is hard for me to believe that the RIAA can use a so called "digital handshake" as their main evidence when no actual download occurred. The fact that the file was in a shared folder and was ready to download does not mean the person themselves shared the file. The court case Atlantic v. Howell is a great example of this situation in which the court rule that "If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right." Also in that case the judge stated, "Unless a copy of the work changes hands in one of the designated ways, a "distribution" under ... 106(3) has not taken place," thereby negating the RIAA's claim. However, not all cases are even taken to court, and the RIAA is able to slip by with this lack of evidence by presenting it like it is their primary proof of infringement.

The article then goes on to talk about cases of a more serious nature and how the RIAA deals with it. They start off with the digital handshake but then MediaSentry personnel actually do download the songs in question. This to me seems backwards and wrong that the RIAA downloads the same songs, in the same manner, from the same programs, as the pirates they are trying to catch.

Capitol v. Foster is a major victory for those being bullied by the RIAA. It is a sign of hope that people can make cases against the RIAA and win, even though they seem very outmatched. This source is useful because of the ruling that rejected yet another theory used by the RIAA to control and transform copyright law. The theory that was rejected due to the ruling of the case was that Foster was not found liable for the file-sharing that occurred on her computer by others and over the internet access that she paid for. The judge ruled in this way because Mrs. Foster was ignorant of the fact that any file-sharing programs were on her computer, and that any file-sharing occurred. Her husband and daughter could have been the ones at fault but she could not be sued for something she did not do and did not know about. This is a huge blow to the RIAA's legal campaign because it adds insult to injury. Not only can an IP provide limited information about a specific copyright infringer, but the RIAA cannot get away with suing the owner of the computer without sufficient evidence anymore. They cannot intimidate people with the specific lie that they have hard evidence on the identity of the copyright infringer because when they are brought to court their evidence will not hold up.

This case is not representative of the way RIAA lawsuits go however. Still, most people tend to settle out of court because legal fees would outmatch the settlement fee. But this case is representative of the evidence that the RIAA uses and the inconclusiveness of it. If a person does take action against the RIAA, and are truthfully not a copyright infringer, they have a very good chance at winning the case. Fortunately for Foster, she was able to have her case dropped as well as win a counterclaim argument for attorney fees which amounted to more than 60,000 dollars. Resistance to the RIAA is ever increasing and with each case lost by the RIAA they lose that much more control over the direct copyright law is going and will go in the future

This website produced by the RIAA, is supposed to educate a person about illegal file-sharing and copyright infringement. Some questions that the RIAA pose and answer are both helpful and truthful, but there are also others that the RIAA answers with lies. It is interesting to look at these questions and realize the manipulation that the RIAA uses to persuade people into settling out of court, and the blatant lies they tell those people when doing so. From these questions I am able to gage the direction and steps that the RIAA is taking in order to successfully transform the laws on file-sharing and copyright to fit their liking.

For example, they declare that a person is sued because that person in particular has been identified as uploading or downloading copyrighted material without authorization. Most of the people they sue and take action against are not extremely tech saavy and therefore might not catch the lies in the previous statement. The truth is that the RIAA cannot single out a person, only a specific IP address, which only means that the action took place at a time. Basically, all they can prove is that at a certain time, which they can not pinpoint either, a person used the computer with the specific IP address mentioned and downloaded an illegal copyrighted file. They do not have enough evidence from that alone to win a case, but because they have the money to sue massive amounts of people in this way, they manage to settle many cases in their favor and out of court. However, some people do realize what an IP address is and realize the lack of evidence the RIAA has which results in the high profile cases in the news today. That false statement by the RIAA adds to the list of ways it has directly affected the flow of information and the way copyright law works. They have been able to bully their way out of court cases with lies such as that and the excessive amounts of money they have.

 

This source is a court document from the Atlantic Records v. Tanya Andersen court case. More specifically it is the complaint from the defendant Andersen, and the part that interests me is where it talks about the questionable legality of MediaSentry's investigations. Tanya Andersen is another person who had enough courage to stand up to the RIAA, and like Ms. Santangelo, she is a single mother. However, Ms. Andersen is also disabled and has a young daughter. This is another instance that shows the type of people targeted in these lawsuits by the RIAA and why they are usually so successful in settling cases out of court. They are transforming the way copyright law works into cases that mostly do not make it to court in order to make a lot of money and pretend like their way of justice is bringing awareness to the public about copyright infringement.

The focus of this source is to show the tendency of MediaSentry's investigations to be intrusive and invasive of privacy. By doing so, this also shows that the RIAA are also cutting corners but then try put the blame on MediaSentry when caught. For example, the complaint provides detail about MediaSentry's investigations explaining that without authorization and under the false pretext of being a peer user, they are able to hack into someone's computer and gather information illegally. They then sell the person's IP address to RIAA, therefore allowing the RIAA to claim they did not do anything illegal themselves. This illegal practice has become known over the past months and as a result, some states require private investigators to have licenses and to be registered. This is true in the state that Ms. Andersen calls home and for that reason MediaSentry's investigation is illegal and so are all their findings. This evidence of illegal investigations by a well known partner of the RIAA contributes to the belief that they are trying to transform copyright law to fit what they want, whether it be through legal or illegal ways.

This source is the decision in the Atlantic v. Howell case. This case is important in the fight to lower the power that the RIAA has over copyright law because it rejects 2 popular theories that the RIAA tries to use in their cases against file-sharers. This first theory is called “making available” theory of infringement and it holds that if a person has a folder or file which is shared and therefore is able to be downloaded, that person is infringing on copyright even though the file or contents of the folder were not necessarily downloaded. The rejection by the court of this theory is a major blow to the RIAA's strategy and weakens the power that the RIAA has over copyright law. The second theory is called “offer to distribute” theory and had been accepted in similar cases by the court. It means almost the same as the “making available” theory.

One of the most important factors of this case is that Mr. And Mrs. Howell represented themselves against the whole litigation team of the RIAA, and won. The court sided with the Howells, saying that just because MediaSentry went and downloaded a file off of the Howell computer does not mean they personally put the file in the shared folder. The Howell's argued that Kazaa shared their whole hard drive without their knowledge. The courts stated that although MediaSentry had evidence of a file being shared, there was no way it could tell who actually put it in there.

The decision favoring the Howells was a monumental victory for the little guy so to speak and provides hope that the RIAA is not unbeatable, although they try their best to seem so with their intimidation tactics and bullying.

The Sony BMG v. Tenenbaum case is arguably the most high profile file-sharing case in the news today for a number of reasons. First, the defendant, Tenenbaum, is being represented by a famous Harvard Law professor by the name of Charles Neeson. The fact that Neeson was attracted to this case speaks volumes of the potential change to be made in how copyright law runs in the modern world today. Second, this case shows to the common people the true motive of the RIAA. They are trying to make an example out of Tenenbaum, who downloaded seven songs, in order to intimidate everyone from sharing files on their computer. He is a small fish in a big pond to them, and they think that they can use the intimidation tactic of suing him for an exorbitant amount of money all the while instilling fear in those who are thinking of sharing files.

This leads to the reason why I am choosing to use this case as a source: Tenenbaum is not trying to win his case just so the RIAA can pay legal fees that incurred, rather he wants to tackle the organization's legal strategy at its core. He is trying to prove the unconstitutionality of their litigation tactics in order to severely limit their power and effectively hit them where it hurts. Someone is finally accusing them of abusing the law and constitutional rights, and has the legal team to back him as well. There is a major difference between reading court cases and reading the obvious abuse by the RIAA in them, and actually being proactive and trying to defend yourself and others. The people have had enough with the RIAA and their monopoly over copyright law in regards to file-sharing and the music industry and the measures they take to restrict the flow of information that copyright is supposed to encourage. People are not supposed to be so scared of the RIAA that they will not use the computer or send files ever again for fear of punishment. The modern world we live in is changing largely into a digital world, and the RIAA is trying to stop us from moving forward by squashing our hunger for new information with their unconstitutional strategies.

This source is a blog written by one of Prof. Neeson's students in his CyberOne class, who are also helping out Tenenbaum in his legal battle. This source also provides links to the portions of the court case documents themselves which could potentially be very helpful in my paper if I need to locate something specific in the case.

The Virgin v. Thomas case is not being used as a source in my paper for its positive outcome or because it somehow decreased the RIAA's power over copyright law. Actually, Thomas is losing her case, was hit with a 222,000 dollar judgment, and has since sought new legal advisors. What is very important about this particular case is the awareness this case has raised around Internet circles. People have websites devoted to “Freeing Jammie”, donations are being made in her name so she can pay the 222,000 dollars as well as finance an appeal, and awareness of RIAA abuse is thriving more than ever in Internet forums and chat rooms.

The amicus brief submitted by a handful of law professors strengthens the argument that more and more people are gaining knowledge and are willing to fight back against the RIAA. The amicus brief also presents new evidence and questions about copyright law, such as what is fair and what is infringement. For example, they state that the Copyright Act gives copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Making a work available to the public, they believe, does not constitute distribution. They also make their case and point to reject the synonymy between the words “distribute” and “publication.” They make a convincing argument that is relevant to my topic and back it up with multiple sources.

Before reading this brief I wondered whether the exclusive right of a copyright owner under the Copyright Act actually applied to a computer file. I wondered this because the Copyright Act protects phonorecords and copies which I take to be actual tangible items. There is a gray are for me when I think about Copyright Law and a computer file because a file is not tangible. After reading this brief I feel that this exclusive right cannot apply based off of the Copyright Act, but rather a provision or amendment needs to be made which outlines if and when a computer file is protected.

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.

The RIAA submitted this letter in response to public requests for comment on the ACTA. The RIAA provides a detailed prescription of what it needs in order to ensure that its intellectual property rights are not infringed anywhere in the world. This includes recommendations for the definition of “piracy,” and which infringement cases should be prosecuted. It also sets out specific requirements for law enforcement and monitoring officials to follow. The RIAA expresses its strong supports for the dialogue the ACTA has provoked and expresses its wish that all of its arguments be taken into account when formulating its final version.
    The RIAA provides by far the clearest and most non-negotiable opinion. It explicitly states that all acts of piracy, commercial or non-commercial, should be prosecuted and the strictest laws should be applied. It seems that the RIAA has already created its own legal framework that advances the industry’s ambitions and protects its interests efficiently. The Association is merely looking for a conduit of its legal system and does not intend to negotiate with any party. It also disregards the motives of user worldwide to seek and use illegal materials online. The RIAA does directly address the links between piracy and organized crime, which shows that it recognizes some of the ramifications of copyright infringement that affect areas completely exterior to music.  While the Association’s stance should not be ignored, its positions should be considered alongside economic and empirical evidence (like the one provided by the IIPA). Additionally, the confidence and severity of the RIAA’s opinion should caution all countries that the U.S. organization is a powerful player and can include the international arena in its jurisdiction if its demands are completely met by any multinational agreement.

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 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.

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 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.

http://www.eff.org/IP/P2P/RIAAatTWO_FINAL.pdf

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 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.

January 18, 2007
With Arrest of DJ Drama, the Law Takes Aim at Mixtapes
By KELEFA SANNEH
In the world of hip-hop few music executives have more influence than DJ Drama. His "Gangsta Grillz" compilations have helped define this decade's Southern rap explosion. He has been instrumental in the careers of rappers like Young Jeezy and Lil Wayne. He appears on the cover of the March issue of the hip-hop magazine XXL, alongside his friend and business partner T.I., the top-selling rapper of 2006. And later this year DJ Drama is scheduled to make his Atlantic Records debut with "Gangsta Grillz: The Album."
Now DJ Drama is yet another symbol of the music industry's turmoil and confusion.
On Tuesday night he was arrested with Don Cannon, a protégé. The police, working with the Recording Industry Association of America, raided his office, at 147 Walker Street in Atlanta. The association makes no distinction between counterfeit CDs and unlicensed compilations like those that DJ Drama is known for. So the police confiscated 81,000 discs, four vehicles, recording gear, and "other assets that are proceeds of a pattern of illegal activity," said Chief Jeffrey C. Baker, from the Morrow, Ga., police department, which participated in the raid.
DJ Drama (whose real name is Tyree Simmons) and Mr. Cannon were each charged with a felony violation of Georgia's Racketeering Influenced Corrupt Organization law(known as RICO) and held on $100,000 bond.
...
There have been mixtape busts before: in 2005, five employees of Mondo Kim's, in the East Village in New York, were jailed after the store was found to be selling unlicensed mixtapes. But the arrest of a figure as prominent as DJ Drama is unprecedented. Record companies usually portray the fight against piracy as a fight for artists' rights, but this case complicates that argument: most of DJ Drama's mixtapes begin with enthusiastic endorsements from the artists themselves.
It also seems clear that mixtapes can actually bolster an artist's sales. The most recent Lil Wayne solo album, "Tha Carter II" (Cash Money/Universal), sold more than a million copies, though none of its singles climbed any higher than No. 32 on Billboard's Hot 100 chart. That's an impressive feat, and it's hard to imagine how he would have done it without help from a friendly pirate.

 

The most recent Supreme Court ruling on this controversial issue was in the case of MGM v. Grokster.  Reversing the opinions of both the district court and the Third Circuit, the Supreme Court found that, though the software could be used for both infringing and non-infringing purposes, the companies “induced” its users to infringe copyright.  Even though the software may have had substantial non-infringing uses and may thus have passed the Sony test, the court unanimously felt that the software was created with the intention of allowing users to infringe copyright for the profit of the company .  While these file-sharing networks were shut down as a result of the ruling, the government did not seek prosecution of users, many of whom had shared less than $1000 dollars worth of copyrighted works and were thus not criminally liable under the current U.S. code.  And while the government may have had a shot at prosecuting the creators and marketers of the software itself, as their product had been found to induce copyright infringement, with damages likely totaling thousands of dollars, a federal case was never made of it.  Grokster was shut down, and numerous file-sharing networks popped up in its place, while legal digital distribution networks gained popularity as well, filling the gap left by the popular illegal networs.  The war on piracy continued despite this dramatic ruling, and the complaining on behalf of the record companies has yet to cease.

Though peer-to-peer file sharing has yet to be legislated, the courts have provided us with some guidance on how to deal with the new technology.  The most recent revision to copyright law dates back to December of 1997, a year and a half before the release of Napster, the first mass file-sharing network.  The No Electronic Theft Act (the NET Act) was designed to close a loophole in criminal law that prohibited prosecution of people who distributed copyrighted software over the Internet without making a profit.  The NET amendments included a new provision that made "reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000" a criminal offense, punishable under United States code by imprisonment of up to one year or fines.  Under this new law, reproduction and distribution of copyrighted material with total retail value under one thousand dollars remained a non-criminal offense unless the copyright was infringed for the purposes of commercial or financial gain. Importantly, this amended law does not allow for criminal prosecution of downloaders who do not distribute copyrighted works, but merely download them.  Obviously, without people distributing the works, there would be nothing for these non-sharers to download, and while it seems that cutting off the supply chain could effectively stop these people from downloading, this has yet to occur.  The closest parallels to a possession of unlicensed copyrighted material are laws prohibiting the possession of stolen goods (not intellectual property.)  However, Dowling shows us that property law cannot be used to prosecute offenders that copyright law does not apply to (e.g. transportation of “stolen” intellectual property over state lines).  This means that the targets of RIAA scare campaigns are actually often not committing a felony by downloading music, a fact that the RIAA is negligent to admit.

            This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users.  The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.

 

            This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music.  It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.

            This article is written by Cary Sherman, president of the RIAA as a response to a speech by Consumer Electronics CEO Gary Shapiro in which Shapiro stated that downloading off the Web is neither illegal nor immoral. Sherman says that statement is wrong and misleading. Shapiro says that legal downloading from record companies and legitimate online music companies is fine but there is a problem with unauthorized downloading of copyrighted material, and sites Title 17 of the United States Code. Sherman writes that the fair use argument employed by Shapiro makes falsely seem as if copyright owners are against fair use, and that the fair use claim is unsupported when it comes to unauthorized use. Sherman argues against Shapiro's claim that downloading is different from taking a tangible property by writing that both owners have been deprived of something of value. Sherman refutes Shapiro's use of the first amendment and also says that companies are in fact aggressively pursuing a more flexible business model that does take advantage of new technology. Shapiro writes that the industry using technology and the internet is beside the point and that the real issue in what Shapiro is saying is that "digital stealing isn't really stealing" and the last thing we need is more polarizing rhetoric.

 

            For my research on why copyright holders are willing to waive copyright in some instances such as MP3 blogs because the new technology has benefits in promotion, this article is a firm example of the view from the record labels about copyright law and internet uses. It is written by the president of the RIAA, Cary Sherman and gives an argument in favor of strong copyright law, and a rebuttal to a speech by the Consumer Electronics CEO Gary Shapiro in favor of weaker copyright law. It provides the viewpoint of the music industry about downloading, but it is interesting in that it does not mention anything about record companies such as Warner who at times chose to solicit certain independent blogs and will send the bloggers music with the hope that the blog will help promote the record label's artist for free.

In Chapter 5 of Lessig’s book, he presents both sides of the piracy argument, yet suggests that p2p sharing is unlike true piracy and that there is potential to create a way to protect artists and allow the sharing to survive. Lessig proposes that four types of sharing occur on p2p networks, only one of which is legal, though three of the four remain beneficial to society despite their technically infringing nature. Lessig posits that the benefits of these three non-harmful piracy methods may outweigh the harms of type A sharing, and cites numbers released by the RIAA itself to support his argument. In 2002, the RIAA reported that CD revenues had fallen 6.7 percent, falling from 882 million CDs sold to only 802 million. During this same time period, the RIAA estimated that 2.1 billion CDs were downloaded for free, about 2.6 times the number of CDs sold. However, Lessig points out that, if every download were a lost sale, then the industry would have had a 100 percent drop in sales, not the mere 6.7 percent drop reported. Based on this data, Lessig concludes that there is indeed a huge difference between downloading a song and stealing a CD, a fact the RIAA does not want students to know.

Lessig also criticizes the RIAA’s demand that Napster be able to filter out 100 percent of infringing content when Napster was only able to promise 99.4 percent. He suggests that the war is not on copyright infringement but on file-sharing itself, with copyright used as an excuse. Under the zero-tolerance policy demanded by the RIAA, we wouldn’t have VCRs, or Xerox machines, neither of which seem so harmful today. Lessig does not promote piracy, but suggests that its detractors allow the technology of the internet to develop before pouncing on the technology and preventing it from maturing to its potential. This means that the anti-piracy scare campaigns and pressure for swift legislation go by the wayside while the internet reaches its full potential and an efficient way to promote and distribute content is developed.

Though this book is biased against internet file sharing, it provides a good background on some of the issues that arise when dealing with the topic.  Hinduja provides a difference between file sharing and CD stealing that neither the detractors nor supporters of file sharing had thought to mention, perhaps because it is so obvious.  Theft of digital property over the Internet is much easier and quicker than physical theft.    He goes on to attempt to liken the two, claiming that the desire to innovate and develop creative works can be stifled if the rewards are less than anticipated, but there is a clear argument against this.  That is, most artists struggle for years making absolutely no money before “making it,” and even then there is no guarantee of survival.  These artists cannot anticipate that the returns will be high, because the likelihood of this to be the case is so low.  It is in fact, these artists who struggle for years for no money who benefit from file sharing, as it enables them to share their work and develop a fan base without the stifling influence of a giant record label.  Thus, for these artists, the same harmful peer-to-peer network that supposedly squelches the desire to innovate actually stimulates it.  It provides the possibility that their work will be heard, which would otherwise be unlikely.

Though the author is against file sharing, he admits that digital intellectual property is characterized as a public good.  Its utility is not decreased when the property is shared.  It is also an “information good,” with a marginal cost of production of about zero.  Though the author describes these factors as augmenting the attractiveness of the commodity, he informs the reader that because of the attractiveness, the music industry refused for years to embrace the format changes and introduce it into their business model.  This seems at first to make little to no sense, until we consider the historical resistance to change in this industry. 

Hinduja further describes the government’s general resistance to legislate on the matter of punishment for copyright infringement, suggesting that a reason for this is that most individuals lacked the capacity to violate the laws.  This is no longer true, and perhaps the government should step in and make their position on the matter known.  This potentially contradicts Lessig’s argument that the technology must develop before rules are made concerning its use. 

 

It is no secret that the biggest threat to today's music industry is peer to peer file-sharing, labeled piracy by its detractors. It is also indisputable that most of the activity on such networks is an infringement of the copyrights held, for the most part, by the record companies that seek to stop such sharing. The Recording Industry Association of America (RIAA) is at the forefront of the anti-piracy campaign. While campaign material threatens college students and other infringers with criminal convictions and hefty government fines, the reality is that most piracy litigation has been civil, not criminal. Moreover, according to copyright legislation, it is the distribution of the copyrighted material, not the possession of it, which is punishable by Federal Laws. File-sharing is not, as the record companies would lead us to believe, always and indiscriminately, stealing. While it would be difficult to argue that file-sharing is legal, it is worth noting that the RIAA itself has engaged in unethical and dishonest campaigning in its own effort to maintain its current business model in the face of inevitable change at the hands of the new technology. It may in fact be in the recording industry's best interest to embrace file-sharing, as recent studies have suggested that the new technology may provide a better predictor of record sales than other previously popular methods, including radio airplay. In order to make the most out of the innovations that the Internet and the proliferation of MP3 technology have provided, the recording industry should shift its focus away from stopping illegal file-sharing and towards providing and taking advantage of the benefits of a legal file distribution method.

Describes the current legal battles over the sharing of guitar tableture for songs. RIAA says composers are losing money that could be made from selling sheet music -- guitar enthusiasts are sharing tips and tricks for playing. Are there free speach issues? Tableture as new copyright issue.