Hey, I’m gonna get you too
Another one bites the dustWritten by John Deacon
Performed by Queen
Recorded on The Game (EMI-Electra, 1980)
The RIAA and its IFPI sister organizations worldwide has sued tens of thousands of people alleged to have shared music on p2p networks. During this lesson, we’ll study the process and substance of these sorts of cases, including how file sharers were identified, when and where suits were filed, why they were almost always settled and what might happen if they’re defended. Although the torrent of litigation has subsided with a change in legal tactics, the issues are nonetheless fascinating today than they were 5 years ago. Indeed, several cases are still simmering. Plus, while the music industry has changed its tune, some movie studios are just gearing up with p2p file sharing cases in the United States and even here in Canada.
Basics of Filesharing Litigation
Most of the cases we’ll look at are American, but we’ll draw comparisons to developments in Canada, Europe, Asia and elsewhere. That makes it tough to pick the “must reads” for this lesson but I’ve given it a shot. I think the absolute best resource around on file-sharing law suits was and still is Ray Beckerman’s blog, “Recording Industry vs. The People,” which contains the lesson’s first reading, “How the RIAA Litigation Process Works.” Although that work is a little bit dated, it is still worth reviewing to understand the backstory to this song. Also valuable is the EFF’s page on “RIAA v. The People” (and RIAA v. The Students“) This contains links to a sample letter from the RIAA threatening a lawsuit and a sample settlement agreement. EFF even tells you how not to get sued for file sharing. Other useful background from the EFF includes this report on the effects of 5 years of RIAA lawsuits.
What Does a Filesharing Suit Look Like?
Now, here’s a little more context. Lawsuits against p2p file sharers began around the time lower courts in the United States held that Grokster wasn’t liable for the actions of its users. In search of a new way to deter file sharing, the industry went after individuals. Intuitively, it seems pretty stupid to sue your customers, doesn’t it? Fred von Lohmann explained why in “Is Suing Your Customers a Good Idea?” Justin Hughes, on the other hand, took a different view in “On the Logic of Suing One’s Customers and the Dilemma of Inrfingement-based Business Models.” If you’d like, look at both and let me know what you think.
We’ll also talk a bit about the growing body of empirical evidence about the harms of file sharing, or perhaps more accurately, the lack thereof. This one study, prepared for the Government of Canada by 2 British-based economists, is a good illustration of the evidence that’s available. It concludes that file sharers are the same people who buy CDs, and that the more people share music, the more they buy it. Probably the most prolific writer on this topic is Professor Stan Liebowitz, and I suggest you check out some of his work.
To get a little deeper into the legal technicalities of how these lawsuits worked — which is what I really want to focus on — we need to first understand how the RIAA got the information necessary to sue p2p users. They used to try using 512(h) of the DMCA, which involved subpoenaing information from ISPs. That tactic was short-lived because of the decision in RIAA v. Verizon Internet Services.
After that decision, the RIAA used basic rules of federal civil procedures instead. Labels filed suit against “John or Jane Does” and then brought motions for discovery of 3rd parties, i.e. the ISPs, or sometimes, more recently, a university. This way the RIAA obtained the Does’ personal information, and used that to substitute the real name of the defendant into the lawsuit (or discontinue the lawsuit against the Doe to avoid appellate scrutiny).
Filesharing Around the World
Outside the U.S., courts have taken another view about the disclosure of personal information in circumstances like this. The most famous case is probably BMG Canada Inc. v. John Doe , but the Canadian courts aren’t alone; Dutch courts reached similar conclusions around the same time. And a very noteworthy development in the EU occurred at the end of January ’08 when the ECJ ruled on a Spanish case (Promusicae v Telefonica) that EU law does not require ISPs to hand over subscribers’ personal information to copyright owners claiming infringement. If you want to explore the European approach in more detail, you’ll have to learn about the E.C. E-Commerce Directive 2000/31, Art. 15.
Ok, but back to the US. Once a plaintiff had a p2p user’s relevant info, how did a case proceed? From here the RIAA usually offered to settle the case. Cleverly, the non-negotiable settlement offer was priced just slightly below the cost of a defence attorney. So when the defendant went to the lawyer’s office, the lawyer would say it was cheaper to settle than defend. And because the RIAA filed these cases pretty much pro forma, they had little overhead and the marginal cost of each additional lawsuit was small. It is even possible that RIAA members converted litigation into a nice little profit-making enterprise. The average settlement is about US$3750 and there have been tens of thousands of these lawsuits; that gives you a sense of the revenues this litigation is generating for labels.
The very few users who tried to defend themselves haven’t had much success. Some have tried to argue fair use, but that’s gone nowhere: see BMG Music v. Gonzalez. Some have tried to say that sharing isn’t infringement, but courts haven’t bought that argument, on the basis that they don’t understand the technology well enough to decide: see Interscope v. Duty. Numerous other defence tactics have also been unsuccessful. If you thought erasing the evidence from your hard drive was one way to avoid liability, think again: seeArista Records v. Tschirhart. One of the few defendants to have some luck was in Capitol Records v. Foster, where the RIAA lost and was order to pay the defendant Debbie Foster’s costs for bringing a bogus suit.
One issue that has also garnered attention is damages: the grossly disproportionate damage awards we’re seeing are liable to attack on economic, legal and probably even moral grounds. This argument succeeded — temporarily — in the Tennebaum case discussed below. And it is being addressed in Canada’s Bill C-11 copyright reforms to provisions on statutory damages.
In probably the most famous cases of all, RIAA v. Thomas, a Minnesota woman was ordered to pay $2.2 million for sharing 24 tracks. In the long saga of the case (involving at least 3, and what might become 4, re-trials), judges and juries have gone back and forth on multi-million dollar awards and then judicial reductions. At one point, in an ususual but understandable about-face, the judge in that case had actually set aside the decision almost a year after it was issued because of the realization that simply offering to share files isn’t illegal in the US … infringement of the distrubution right requires proof that someone actually downloaded an infringing file.
Discussing Filesharing
I’d like to weave two key questions throughout this lesson:
First, do you think these lawsuits are a justifiable use of judicial resources. It is an abuse of process, or simply copyright holders cleverly exercising all of the procedures available to them? If you feel that private parties are entitled to use the public justice system to these ends, would you feel the same way about the allocation of more state resources to combat p2p file sharing? That is, what role, if any, should the criminal law play in this area? Probably the best case to launch a discussion of that issue, and the last case we’ll tackle this week, is the Hong Kong SAR criminal proceedings involving bittorrent seeder Chan Nai-ming. His case was the precursor to Kim Dotcom’s legal troubles, which we’ll talk about next week.
Second, if you think these lawsuits are a problem, what should be done about it? Here, I want to talk tactics. There was a fair bit of discussion among cyberlaw professors and especially clinical educators (i.e. the professors and lawyers who work in public interest clinics, like CIPPIC) about how to handle these kinds of files. Obviously there are broad public interest principles to defend. But given the difficulty defendants have had in this area, is it really acting in the best interests of your client to take her/his case to court? This is the ethical dilemma debated when a highly regarded professor, Charles Nesson, unsuccessfully defended Joel Tenenbaum. The result was a damage award against Joel of $675,000. Here’s a report and some background on that to facilitate discussion. See also here for more context, and here and here for the latest news about the costs Nesson is now on the hook for, and why the Obama administration supports such astronomical damage awards. And here’s the latest on that particular case, as of last summer.