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 definition of the term “ex parte.” I am going to need to cite the term in my paper because it is one of the more favorite ways of the RIAA to bully people. First they find out the IP addresses of the copyright infringer through private investigations done by MediaSentry. Since IP addresses can only identify that the infringement happened on a certain computer not the specific person that shared the files, the defendant becomes a John Doe and other measures need to be taken by the RIAA. This is where the “ex parte” order comes in to play. This “ex parte” order, if granted, allows for immediate discovery of the identity of the copyright infringer. The RIAA subpoenas the ISP (Internet Service Provider) of the IP address forcing them to give up otherwise confidential information such as names and addresses. Once the RIAA obtains that information they are able to sue the person in his own name.

“Ex parte” is the term used when one party talks to the judge without letting the other party know about it, and in the USA the courts maintain that both parties have to notify the other when talking to the courts. However, the RIAA has gained so much control over the way copyright law works that the courts normally permit such an order. Although it seems very unfair, illegal, and violates the constitutional right of fair notice, the RIAA has the power and people to make such an order almost routinely successful. The “ex parte” order is one of the most important ways the RIAA can control how copyright law works, but hopefully with the rise in cases being brought to trial this power will soon diminish.

 

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.