Trade group efforts against file sharing

Trade group efforts against file sharing

Arts and media industry trade groups such as the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) strongly oppose and attempt to prevent copyright infringement through file sharing. The organizations particularly target music files distributed via the Internet using peer-to-peer software, a practice which the RIAA says results in a reduction of profits of around $4.2 billion for the music industry worldwide, harming honest consumers, record labels, retailers and artists.[1] Most economic studies find that file sharing hurts sales, though not to the precise degree trade bodies themselves report.[2] Others show mixed effects, and sometimes overall net social "welfare" benefits.[3] Others point to a transfer of revenues from record sales to other music services.[4]

The RIAA sees lawsuits as a way to combat the problem of Internet-based copyright infringement. RIAA President Cary Sherman claims that the large number of lawsuits filed has "arrested the growth of a runaway solution that would have grown worse and worse."[5] As of July 2006, the RIAA had brought lawsuits against more than 20,000 people in the United States suspected of distributing copyrighted works, yet the practice remains rampant throughout the world.[6]

Contents

Effects of file sharing

The RIAA and its member groups argue that Internet distribution of music, without the consent of the copyright owner, harms the careers of current and future artists, both because record companies would have fewer sales and also because musicians, singers, songwriters and producers depend heavily on royalties and fees gained from their music.

According to David Glenn, writing in The Chronicle of Higher Education, "A majority of economic studies have concluded that file sharing hurts sales", though not to the precise degree "the record industry would like the public to believe."[2] A study by economists Felix Oberholzer-Gee and Koleman Strumpf in 2004 concluded that music file sharing's effect on sales was "statistically indistinguishable from zero".[7] This research was challenged by Professor Stan Liebowitz, who accused Oberholzer-Gee and Strumpf of withholding data and making multiple assumptions about the music industry "that are just not correct."[8][9] Similarly, a 2006 study published by Industry Canada has concluded that file-sharing has no measureable effect on the sales of CDs.[10] A 2007 study by the Institute for Policy Innovation, on the other hand, concluded that copyright infringement of movies, music, and software, including unauthorized downloading, costs the United States economy 373,375 jobs and $58 billion in annual output.[11][12]

In June 2010, Billboard reported that economists Oberholzer-Gee and Strumpf had "changed their minds", now finding "no more than 20% of the recent decline in sales is due to sharing".[13] However, citing Nielsen SoundScan as their source, the co-authors maintained that illegal downloading had not deterred people from being original. "In many creative industries, monetary incentives play a reduced role in motivating authors to remain creative. Data on the supply of new works are consistent with the argument that file sharing did not discourage authors and publishers. Since the advent of file sharing, the production of music, books, and movies has increased sharply." Glenn Peoples of Billboard disputed the underlying data, saying "SoundScan's number for new releases in any given year represents new commercial titles, not necessarily new creative works."[14] The RIAA likewise responded that "new releases" and "new creative works" are two separate things. "[T]his figure includes re-releases, new compilations of existing songs, and new digital-only versions of catalog albums. SoundScan has also steadily increased the number of retailers (especially non-traditional retailers) in their sample over the years, better capturing the number of new releases brought to market. What Oberholzer and Strumpf found was better ability to track new album releases, not greater incentive to create them."[15]

Actions against Internet service providers

In March 2007, Irish Recorded Music Association (IRMA) members sued eircom, the largest broadband provider in Ireland, over alleged illegal file sharing by subscribers. IRMA had previously demanded that eircom install content filters or take other steps to block IRMA's copyrighted music from being shared.[16]

In November 2008, a group of 34 film and television studios (including Village Roadshow, Warner Brothers, Sony Pictures, Disney and the Seven Network), represented by the Australian Federation Against Copyright Theft (AFACT) launched action in the Federal Court of Australia against iiNet, Australia's third-largest internet service provider. AFACT alleges that iiNet customers have breached its members' copyright by using peer-to-peer software to share and download films and television programs, and that iiNet had not acted against the alleged file-sharers despite 18 notifications of copyright infringement.[17]

Actions against file sharing services

Litigation

See also: A&M Records, Inc. v. Napster, Inc. and MGM Studios, Inc. v. Grokster, Ltd.

On December 7, 1999, RIAA labels sued Napster for providing a peer-to-peer file sharing network for MP3 files. The plaintiffs claimed that Napster "facilitate[d] piracy of music on an unprecedented scale."[18] Napster became bankrupt during the case; and has since been taken over by Roxio and provides a download service which is sanctioned by the RIAA.

In 2002, the RIAA sued Aimster, which provided a similar service.

In 2003, MPAA studios sued Grokster and other file sharing services in a case that would eventually go to the Supreme Court of the United States. The court held that producers of technology could be held liable for intent to induce infringement.

In 2006, RIAA labels sued the developers of LimeWire, a client for the Gnutella file sharing network.[citation needed]

Support of police actions

See also: May 2006 police raid of The Pirate Bay

In a controversial May 2006 raid, Swedish RKP and local police seized the servers of BitTorrent tracker The Pirate Bay, causing a three day outage. The raid, alleged to be motivated by pressure from the Motion Picture Association of America (MPAA), was publicized as a success by the MPAA, but ridiculed by The Pirate Bay's operators.[citation needed]

Peer-to-peer spoofing

The RIAA has apparently in the past been revealed to and may have admitted to the practice of spoofing, deliberately flooding P2P networks with "junk music".[19][20] A further reference to such activity was discovered when computer software and src codes along with emails were stolen from US Company "Media Defender";[21] their software was designed to facilitate "interdiction" on all the then known peer-to-peer file sharing networks. The contents of the emails made it clear that both P2P network monitoring and interdiction were undertaken by Media Defender.

Denial-of-service attacks

Aiplex Software, an India based technology company, revealed in 2010 that it has made denial-of-service attacks on torrent hosting websites on behalf of movie studios.[22] Internet activists retaliated against Aiplex and industry trade groups with denial-of-service attacks of their own, coordinated through Operation Payback.[23]

Lawsuits against individuals

Participating plaintiffs

The RIAA has brought file sharing lawsuits against individuals naming the following plaintiffs.

The MPAA has brought file sharing lawsuits against individuals naming the following plaintiffs.

Scope of distribution rights

Plaintiffs initiate lawsuits against individuals without specific evidence of unauthorized uploading of files, which could infringe the plaintiffs' reproduction rights. They assert an alternative claim, that making files available for download over the Internet is an infringement of their distribution rights.

A critical case, which may not only determine the fate of the RIAA's litigation campaign, but also impact the scope of copyright across the internet, is Elektra v. Barker.[24] In that case, Tenise Barker, a 29-year-old nursing student in the Bronx, moved to dismiss the RIAA's complaint for lack of specificity, and on the ground that merely "making available" does not constitute a copyright infringement.[25] In opposing Ms. Barker's motion, the RIAA argued that "making available" is indeed a copyright infringement. Upon learning of the RIAA's argument, which sought to expand copyright law, the Computer & Communications Industry Association, the U.S. Internet Industry Association, and the Electronic Frontier Foundation (EFF) submitted amicus curiae briefs supporting Ms. Barker's motion and rebutting the RIAA's argument. The Motion Picture Association of America, in turn, submitted a brief supporting the RIAA. The U.S. Department of Justice submitted a "Statement of Interest" refuting one argument made by the EFF, but taking no position on the "making available" issue; the DOJ stated that it has never prosecuted anyone for "making available".[26] The case was argued before Judge Kenneth M. Karas in Manhattan federal court on January 26, 2007, who indicated that he will decide the "making available" issue. As of September 2, 2007, the parties are awaiting the Court's decision. Meanwhile, the same issue has been briefed in a more recent case, Warner v. Cassin.[27] In March 2008, the scope issue was resolved in Barker. Judge Karas ruled in this case that simply "making available" (such as dropping a file in a shared folder) did not constitute copyright infringement.[28]

Amnesty programs

Between September 2003 and April 2004, the RIAA, through its Clean Slate Program, offered individual file sharers amnesty for past infringements, "on the condition that they refrain from future infringement,"[29] and delete the infringing material. Individuals were no longer eligible for amnesty once they had been sued. The program is now discontinued.

The RIAA states this was an educational initiative about illegal file sharing, and was stopped due to increased public awareness in the issues. The program may also have been stopped due to the low number of takers.[30]

There is some doubt about whether the RIAA can offer this protection, with some attorneys claiming the offer of amnesty was misleading, and legal documents provided by the RIAA "provides ... no promise not to sue you."[31]

A lawsuit brought in California state court, Parke v. RIAA, alleged the RIAA had committed fraudulent business practices by offering the program.[31][32]

Collection of evidence

The RIAA and MPAA contract MediaSentry, on behalf of plaintiff labels and studios, to collect information about IP addresses sharing potentially infringing files on via peer-to-peer networks. Collected information includes lists of potentially infringing files an IP address reports as available for downloading, files actually downloaded by MediaSentry from an IP address, and dates and times of the observations.

In the United States, MediaSentry is not licensed as a private investigator in some of the states in which observed files are physically located. Because of this, beginning in February 2008,[33] some defendants have challenged the legality of MediaSentry's practices, by seeking to exclude evidence collected by MediaSentry from the lawsuits, and by filing complaints with state licensing boards.

The RIAA asserts that MediaSentry is not a private investigator, so does not require licensing in any jurisdiction. A February 2008 redesign of MediaSentry's website removed a section on "litigation support services" which described "gathering evidence for civil/criminal litigation and prosecution".[34]

Early settlement offers

In February, 2007, the RIAA launched an 'early settlement program' directed to ISP's and to colleges and universities, urging them to pass along letters to subscribers and students offering early "settlements", prior to the disclosure of their identities. When accepted, these offers can save the RIAA the expense to procure the identities through a Doe lawsuit naming multiple defendants.

The settlement letters urged ISP's to preserve evidence for the benefit of the RIAA and invited the students and subscribers to visit an RIAA website for the purpose of entering into a "discount settlement" payable by credit card.[35] By March 2007, the focus had shifted from ISP's to colleges and universities.[36][37][38]

The average settlement amount offered by the RIAA is about $3,000[39]

Identification of defendants

Between 2002 and 2003, the RIAA attempted to get Verizon to disclose the identities of file-sharing customers based on a simple one-page subpoena. Verizon attorney Sarah Deutsch challenged the subpoena's validity on procedural and privacy grounds.[40] In December 2003, this failed when a federal appeals court overturned a lower court order. The RIAA claims this procedure was sanctioned by the Digital Millennium Copyright Act, but the appeals court ruled that the DMCA regulation applies only to data actually hosted by an Internet service provider, rather than data on a customer's computer. The United States Supreme Court declined to review this ruling in 2004. As a result, the RIAA must now file individual civil suits against each accused file-sharer, and the ISP and alleged file-sharer have more legal avenues for preventing disclosure of their identity, making the entire process much more expensive, slow and complicated.[41] The court opinion was written by Judge Douglas Ginsburg. The RIAA typically files suits against multiple Does.

The RIAA names defendants based on ISP identification of the subscriber associated with an IP address,[42] and as such do not know any additional information about a person before they sue. After an Internet subscriber's identity is discovered, but before an individual lawsuit is filed, the subscriber is typically offered an opportunity to settle. The standard settlement is a payment of several thousand dollars to the RIAA, and an agreement not to engage in file-sharing of RIAA music.

The Electronic Frontier Foundation, American Civil Liberties Union and Public Citizen oppose the ability of the RIAA and other companies to "strip Internet users of anonymity without allowing them to challenge the order in court".[43][44]

The RIAA's methods of identifying individual users have led to the issuing of subpoenas to a dead grandmother,[45] an elderly computer novice,[46] and even those without any computer at all.[47] The RIAA has also brought lawsuits against children, some as young as 12.[48]

The RIAA looks to various colleges and universities throughout the United States as some of the biggest offenders of peer to peer file sharing. It has found California colleges and universities to have received the most pre-litigation letters and copyright infringement notices.[49]

In 2005, Patricia Santangelo made the news by challenging the RIAA's lawsuit against her. While she succeeded in getting the lawsuit against her dismissed two years later, her children were then sued. A default judgment entered against her daughter Michelle for $30,750 for failing to respond to the lawsuit, was subsequently vacated.[50]

Individual settlement offers

As of February, 2007 the RIAA began sending letters accusing internet users of sharing files and directing them to a web site, (http://www.p2plawsuits.com/), where they can make "discount" settlements payable by credit card. The letters go on to say that anyone not settling will have lawsuits brought against them. Typical settlements are upwards of $3,000. This new strategy was formed because the RIAA's legal fees were cutting into the income from settlements.[37]

Counterclaims

Another defendant, Tanya Andersen, a 41-year-old single mother living in Oregon, filed counterclaims against the RIAA including a RICO charge. The RIAA requested deposition of her 10 year-old daughter.[51] Subsequently the RIAA dropped the case, leaving open only the question of attorneys fees and the RIAA's liability under Ms. Andersen's counterclaims.[52] Thereafter, Ms. Andersen sued the RIAA, the record company plaintiffs, Safenet (MediaSentry), and Settlement Support Center LLC, for malicious prosecution,[53] subsequently amending her complaint to turn the case into a class action.[54]

In Texas, July 2007, Rhonda Crain (Sony v. Crain[55]) sought leave to add a counterclaim against the RIAA[56] for knowingly engaging in "one or more overt acts of unlawful private investigation" in the RIAA case against Crain.[57]

In one file-sharing case, the RIAA has been referred by the defendants as "a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have". In Arista v. Limewire this was as well alleged by the defendants and referred to in the defendants counterclaim.

See, e.g. UMG v. Lindor,[58] where the RIAA has moved to "strike" those accusations. The motion to strike the charges is pending, and is scheduled to be taken under consideration by the Court on October 2, 2007. See also Arista vs. Limewire[59] for a detailed overview.

In February 2008 it was alleged by a group of artist managers & lawyers that the RIAA has been withholding settlements from artists for several years. The RIAA gained the money through lawsuits claiming to defend the rights of artists, although none of the artists whose music was 'illegally' downloaded reportedly received any of the settlement money.[60]

In September 2008, Charles Nesson filed a counterclaim on behalf of Joel Tenenbaum for abuse of process, claiming "ulterior purposes" of intimidation of other users.[61]

Determination of damages

The RIAA typically seeks $750 statutory damages per song file. In the Brooklyn lawsuit UMG v. Lindor,[62] the defendant argued that the RIAA's damage theory was unconstitutional, because it sought 1071 times the actual $0.70. In November, 2006, a Judge in a Brooklyn Federal Court upheld the legal theory behind this defense.[63][64] UMG subsequently dropped the suit.

On Oct. 4, 2007 Jammie Thomas's case filed against for illegal sharing of 24 songs on Kazaa was adjudicated, with a $222,000 ($9,250 per song) verdict awarded to the RIAA.[65] The verdict, however, was set aside in September 2008, after the judge in the case determined that he made a mistake in the definition of "making available", leaving this case once again unresolved.[66]

The evidence of the effectiveness of the suits is not conclusive. Recent research suggests that the lawsuits have reduced the number of files large file-sharers offer but have had limited effect on those who only offer small number of files (typically less than 1000) and have had negligible effect on general availability of files at any random time.[67]

Awarding of costs to prevailing parties

In 2006, the Electronic Frontier Foundation, the American Civil Liberties Union, Public Citizen, the ACLU of Oklahoma Foundation, and the American Association of Law Libraries submitted an amicus curiae brief in support of the motion for attorneys fees that has been made by Deborah Foster in Capitol Records v. Debbie Foster, in federal court in Oklahoma, requesting that attorney's fees be awarded to the defendant and alleging a pattern of inadequate investigation and abusive legal practices by the RIAA.[68] The RIAA asked the Court not to accept the amicus curiae brief, claiming that the "Movants attempt to paint a false picture of Plaintiffs and the recording industry run amok".[69] On February 6, 2007, the attorney's fee motion was granted.[70][71][72][73] On July 16, 2007, the Court ordered the RIAA to pay Ms. Foster $68,685.23 in attorneys fees.[74]

In an Oklahoma case, Capitol Records v. Deborah Foster,[75] the RIAA was forced to dismiss a case after a woman filed a motion for leave to make a motion for summary judgment and attorneys fees, stating that she had nothing to do with file sharing and that her only nexus to the case was that she had paid for internet access. The judge ruled that the RIAA's withdrawal of the case—after one and a half years of litigation—did not immunize it from possible liability for attorneys fees, holding that the defendant was a "prevailing party" under the Copyright Act.[76] The Court subsequently ruled that defendant was entitled to be reimbursed for her reasonable attorneys fees, since the RIAA's pursuit of its case was, at best, "marginal", and was being pursued to extract a settlement from someone who was clearly known not to be the direct infringer.[77] The Court noted that the mere fact that Ms. Foster was a person who paid for an internet access account was not a basis for a copyright infringement lawsuit against her. Ms. Foster's motion for attorneys fees had been supported by an amicus curiae brief of the American Civil Liberties Union, Public Citizen, the Electronic Frontier Foundation, the American Association of Law Libraries, and ACLU Foundation of Oklahoma.

Other instances in which the RIAA was known to have been forced to back out of a case to avoid a loss, are Priority Records v. Brittany Chan in Michigan, Virgin Records v. Tammie Marson[78] in California, and Elektra v. Wilke[79] in Illinois.

End of mass lawsuits

In December 2008 the Wall Street Journal reported that the RIAA had dropped its program of mass lawsuits in favor of cooperative enforcement agreements with a number of ISPs. The RIAA still reserves the right to file lawsuits against 'particularly flagrant' offenders, but the article predicted these lawsuits would "slow to a trickle."[80]

Public relations campaigns

See also: Captain Copyright, Piracy is theft, Who Makes Movies?, and You can click, but you can't hide

Trade groups have engaged in several notable public relations campaigns targeting file sharing by consumers. The Business Software Alliance's "Define The Line" campaign calls unauthorized copying and downloading of software "stealing".[81]

Criticism

Hilary Rosen was the RIAA's president and chief executive officer from 1998 to 2003 and under her leadership, the company commenced a legal campaign to reduce illegal file-sharing. Rosen has expressed "concern that the lawsuits have outlived most of their usefulness" and that music devices should try "to work better together."[82]

There is much criticism of the RIAA's policy and method of suing individuals for copyright infringement, notably with Internet-based pressure groups such as the Electronic Frontier Foundation and FreeCulture.[83] To date, the RIAA has sued more than 20,000[84] people in the United States suspected of distributing copyrighted works and settled approximately 2,500 of the cases. Brad Templeton of the Electronic Frontier Foundation has called these types of lawsuits spamigation and implied they are done merely to intimidate people.[85]

The RIAA in 2003 attempted to sue Sarah Seabury Ward, a 66-year-old sculptor in Boston, Massachusetts, alleging that she shared more than 2,000 songs illegally. The case was dismissed when it was discovered that Ward was a computer novice.

The RIAA was criticized in the media after they subpoenaed Gertrude Walton, an 83-year-old woman who died in December 2004.[86] Walton was accused of swapping rock, pop and rap songs. RIAA spokesman Jonathan Lamy commented that legal proceedings had commenced before Walton died. "Our evidence gathering and our subsequent legal actions all were initiated weeks and even months ago."

In a Brooklyn case, Elektra v. Schwartz,[87] against RaeJ Schwartz, a Queens woman with Multiple Sclerosis, the RIAA's lawyers wrote to the Judge that they were in possession of a letter in which "...America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffs’ sound recordings were downloaded and distributed to the public without Plaintiffs’ consent." After the defense received a copy of the letter, it turned out that the letter merely identified Ms. Schwartz as the owner of an internet access account and said nothing at all about "downloading" or "distributing".[88]

The RIAA has also been criticized for bringing lawsuits against children, including 12-year-old Brianna LaHara of New York City in 2003.[48] and 13-year-old Brittany Chan of Michigan. Under the threat of a possible defendant's motion for summary judgment and attorneys fees, the RIAA withdrew the case Priority Records v. Chan.[89][90] while LaHara's mother agreed to pay $2,000 in settlements. The RIAA also sued the 16-year-old son of Patricia Santangelo of Wappingers Falls, New York[91] and the 10-year-old daughter of Tanya Andersen in Oregon.[92] Santangelo's case is pending while Andersen's case was dismissed in 2007[93]

The RIAA's recent targeting of students has generated controversy as well. An April 4, 2006 story in the MIT campus newspaper The Tech indicates that an RIAA representative stated to Cassi Hunt, an alleged file-sharer, that previously, "the RIAA has been known to suggest that students drop out of college or go to community college in order to be able to afford settlements."[94]

The RIAA has also filed a lawsuit against a woman who has never bought, turned on, or used a personal computer for using an "online distribution system" to obtain unlicensed music files.[95] This occurred again in the Walls case;

"I don't understand this", said James Walls, "How can they sue us when we don't even have a computer?"[96]

The RIAA filed a lawsuit against Larry Scantlebury, a man who had died. They offered the deceased man's family a period of sixty days to grieve the death before they began to depose members of Mr. Scantlebury’s family for the suit against his estate.[97]

See also

References

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