Copyright Silliness on Campus

    This Washington Post article discusses the intensity of the RIAA in their fight against illegal downloading of music and movies. The article explains how the Record Industry Association of America is questioning 19 major American Universities regarding their actions against students who download. One of the major questions being asked is whether or not these universities are expelling students who practice peer-to-peer file sharing and illegally download. The RIAA claims that certain universities are not expelling enough students for these causes. It seems that even with the RIAA attempting to control universities, they continue to sue and threaten individual students. The monitoring techniques the RIAA wants universities to utilize are not only costly, by also ineffective. Students will be able to outsmart the monitoring system either through the internet or simply with blank CDs and hard drives. Music and movies can be shared even with the RIAA’s “copyright hall monitor”. This article recommends a blanket license that would allow students access to music and movies from whatever source they choose. This blanket license would be similar to that used by universities for a cappella groups that perform on campus and cable television subscriptions. The article concludes claiming that universities have more important things to worry about than the RIAA’s fight for money.

    This article supports my thesis. It provides a variety of reasons why the RIAA is losing control over their copyright battle. Not only is the RIAA threatening students, but it is also attempting to discipline major American universities who do not follow suit in acting against their own students. The author offers another option of blanket fees as opposed to suing every student and threatening universities. This way of handling the file-sharing phenomenon supports my own argument for promoting awareness as opposed to financially attacking students.

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.

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.