Law 897: Scott Loresch’s Assignment for November 14, 2008 

Peer-to-Peer File Sharing

Introduction 

-Check out the Wikipedia page on P2P file sharing for a brief overview.

-Read this introduction to P2P file sharing. 

-Read: 17 U.S.C. § 106, addressing the rights of copyright owners, and 17 U.S.C. § 504(c), providing statutory damages for copyright infringement. 

-Head over here for an introduction to copyright law if you need it.  

Much of the current litigation surrounding P2P file sharing has been brought by the Recording Industry Association of America (RIAA). The RIAA is a trade industry made up primarily of record companies whose “mission is to foster a business and legal climate that supports and promotes our members' creative and financial vitality.”   

-Read this list of FAQs from the RIAA’s website.  

Cases 

Suits brought against P2P Service Providers: 

-Read A&M v. Napster, 239 F.3d 1004 (9th Cir 2001)

-Read MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (U.S. 2005), where the Supreme Court held that distributors of P2P software can be held contributorily liable for copyright infringement if the software was distributed with the object of promoting the infringement of copyright.  

Action against file-sharers: 

After it became clear that litigation against the providers of P2P software was not going to prevent illegal file sharing from taking place, the RIAA changed its strategy, focusing instead on attacking individual file-sharers. The vast majority of P2P copyright infringement cases pursued by the RIAA settle out of court, usually resulting in the defendant paying a sum of $3,000-$6,000. 

-Read this article from WIRED addressing RIAA lawsuits against individual file-sharers.

-Read about how the RIAA litigation process works in this blog entry.  

In Capitol v. Thomas, the first major case against a file-sharer to reach a jury verdict, the jury awarded the plaintiff record company $222,000, or $9,250 for each of the 24 copyrighted songs that the defendant had made available.

-Skim the district judge’s order calling for a new trial; focus on section III (C.)-(E.).

-Read this article on the Thomas trial. 

Note that “[t]he RIAA sues after its online detectives log onto Kazaa, Limewire and other file sharing services. They look into open share folders, take screenshots of the music listed and download some of the songs. They also obtain IP addresses, which are easily determined on open networks.” Optional: Browse the site of one of the RIAA’s online detectives. 

Isn’t a $222,000 award a bit excessive? (But note that this award is in line with statutory damages per 17 U.S.C. § 504(c)) In a similar case, a Harvard professor has put forth the argument that allowing the RIAA to seek statutory damages under § 504(c) is the equivalent of allowing a private organization to prosecute a criminal statute—see article here. Do you buy this argument? 

P2P and College Students 

-Read this paper on the use of P2P technology on university campuses. 

Discussion 

If, as critics of the RIAA suggest, litigation is not reducing the quantity of copyright infringement that is taking place through peer-to-peer file sharing, and given that “none of the [settlement] money is paid to artists,” wouldn’t the RIAA be better off taking a different approach? 

-Consider the suggestions in this whitepaper put out by the Electronic Frontier Foundation.

-Consider the ideas put forth in this recent law review note (only read section II, 987-1008). 

If you were counsel for the RIAA, what strategy would you adopt to curb illegal file sharing or to limit its impact on the vitality of the recording industry?  

What role might congress play in addressing the issue? Is copyright protection in the information age a lost cause?

 

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