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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