Scrutiny

Ah, to get back on topic… The “Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act” was just signed into law by President Bush, after passing the Senate and the House last month. I haven’t looked closely at this bill yet: here are two commentaries from William Patry (before he silenced his public blog) and Cyrus Farivar at Machinist. The main contributions of this bill are two: to massively increase the kind of financial penalties that can be sought in a copyright infringement claim, and to create an “IP czar” position inside the White House.

The first change is curious, but not surprising. The justification for the change is to signal that the US government is serious about piracy. But I think I agree with Patry, that the main thing it does is give the music and movie industries a phenomenally better position from which to pursue their tactic of punishing individual downloaders. In the one case that has been seen through to a monetary award, Capitol v. Thomas, the record labels received $222,000 for 24 songs that Jammie Thomas had made available on a peer-to-peer network. This kind of damages award helps a record label make the case to a downloader that they should “pre-settle” with them before a lawsuit ever occurs, for somewhere between $3000 and $5000. What will that pre-settlement number look like, now that the possible damages have increased 100-fold? What’s curious about this, in my mind, is that many have argued that the existing damages were too high — set to penalize traditional pirates, stamping CDs in a warehouse, they were too large for the case of online file-trading. Part of the question is what the damages represent, and how should they be set: some (i.e. the record labels) argue that the online fil-trader can do more damage, passing their song to millions with one click. The other way to look at it is that the punishment should fit the crime, and putting a few songs in your upload folder is a much smaller violation, in terms of criminal intent or effort, than setting up a street-corner piracy network.

As for an IP czar, I can only imagine. Maybe, in an Obama administration, it could be his friend Lawrence Lessig?

I don’t have anything particularly profound to say on this one, except that the process of pushing on every possible edge of copyright to their advantage has led the record companies
into a kind of mania. From the EFF:

In a brief filed in federal court yesterday, Universal Music Group (UMG) states that, when it comes to the millions of promotional CDs (”promo CDs”) that it has sent out to music reviewers, radio stations, DJs, and other music industry insiders, throwing them away is “an unauthorized distribution” that violates copyright law. Yes, you read that right — if you’ve ever received a promo CD from UMG, and you don’t still have it, UMG thinks you’re a pirate.

The EFF is, of course, picking up one comment in a brief that is a little more subtle. UMG is suing Troy Augusto for selling the promotional CDs he received from them over eBay.  Augusto claims this is protected under the first sale doctrine, the same rule that lets you sell books to a used bookstore. UMG doesn’t like this. But in the process, they have to follow their tortured logic to its own conclusion:

Augusto testified that “a common way to dispose of them” is to give unsold promotional CD away, or he may throw them away. Both are unauthorized distributions. (from the UMG brief [PDF])

This is the kind of crazy that makes the whole RIAA effort just seem untethered to most people, when they get a glimpse. But what I find more curious is that, among a couple of different claims, UMG is arguing that first sale doesn’t apply here because the promotional CDs weren’t sold. As such, and because they are labelled as a “promotional copy,” Augusto shouldn’t have the right to re-sell them. Unfortunately, this is exactly counter to the argument the music and movie industries had to make when they pushed the NET Act through, and worked to criminalize peer-to-peer downloading: even though no money changes hands when someone trades software or music, the industry considers it a commercial act because it replaced a sale.

There is a logic in our legal system, that the process should be an adjudicated one: the judge decides, and as such, the parties involved can more or less try anything. A trial lawyer is not responsible for deciding if their client actually murdered someone, in fact they are obligated to give them the best defense regardless. In these kinds of copyright suits, except if the court finds a plaintiff to be wasting the courts time or absuing the law itself, the logic suggests that they can throw any argument against the wall to see if it sticks. But its troubling to me that this logic seems to permit stakeholders like UMG to plainly disregard any concern for what’s reasonable, what’s workable, what’s not that big a deal, what might be progressive, what’s tradition, what’s necessary, and instead just push their interests into every conceivable corner of copyright law, and see what these fishing expeditions turn up. At what point are we even asked to think as citizens, as part of society, as having collective responsibility, rather than self-interested individuals within it?

OK, so I went the profound direction. (Well, you can be the judge as to whether I actually got there.)

http://www.salon.com/wires/ap/scitech/2007/10/01/D8S0N8IO1_downloading_music/index.html

“Music Download Trial Starts Tuesday”

Joshua Freed, AP

Oct 1st, 2007 | MINNEAPOLIS — A group of record companies says Jammie Thomas illegally shared everything from Enya to Swedish death metal online. Tuesday, she will become the first of 26,000 people sued by the recording industry to take the case to trial.

The Brainerd, Minn., resident is accused of illegally sharing 1,702 songs for free on a file-sharing network. Her trial offers the first chance for both sides in the debate over online music sharing to show a jury its version of the facts.

Thomas is accused of violating the song owners’ copyrights. Her lawyer says the record companies haven’t even proved she shared the songs.

Most of the 26,000 people the record industry group has sued have settled by paying a few thousand dollars.

“We think that speaks to the clarity of the law here,” said Jonathan Lamy, a spokesman for the Recording Industry Association of America.

But lawyers for the defendants say they’ve settled because trials cost tens of thousands of dollars. Thomas’s lawyer, Brian Toder, said she was determined to fight. He declined to make her available for an interview.

“She came into my office and was willing to pay a retainer of pretty much what they wanted to settle for,” he said. “And if someone’s willing to pay a lawyer rather than pay to make it go away, that says a lot.”

Thomas is at risk for a judgment of more than $1.2 million. The recording association is seeking damages set under federal law, of $750 to $30,000 for each copyright violation.

I’m currently attending a talk by Wendy Seltzer — law prof at Northeastern / fellow at Berkman / participant at EFF / smart blogger on law plus — and she’s talking about the role that universities are and should play in the RIAA strategy of sending to universities letters indicating that someone at such IP address was allegedly infringing copyright (usually trading music on a peer-to-peer network), and offering a settlement that would help avoid an actual subpoena and potential lawsuit. The specific question, as I see it, is that the university could forward those letters to the student, which informs them and gives them options but could be perceived as doing the handiwork of the RIAA, or not forwarding it, which argues it is not their place but leaves the student unaware that they may be about to be sued. It strikes me that the particularly egregious part of the pre-settlement strategy is that it even gets around the basic legal processes of getting a subpoena, which requires at least basic evidence that the infringing occurred.

So while my initial gut says that the university should pass these along, so students know what’s happening, though I think I would like the university to be working against this strategy in other ways. But I don’t like that it appears to legitimate the strategy. I would like to stop the pre-settlement model altogether, and make it necessary to go through the more official legal due process — in part because these I wish these cases would come before courts more than they have, in case there is a legal question about the validity of calling file-trading infringement (and the RIAA is generally fearful of having these cases come before a court or jury, for precisely this reason).

Then a question posed pointed out that the statutory damages in copyright are egregiously high, in part because when they were written they were imagining not digital piracy by millions of ordinary users but commercial, large-scale piracy that preceded it. So many the damages should be lowered, making the lawsuit approach less desirable. But it strikes me that these are opposite — high damages might lead the RIAA to want to go to court, not to settle; settling is a way to ensure the decision goes there way (because there is none) but gets them less. It seems to me that the RIAA prefers the pre-settlement approach precisely to avoid the costs and risks of legal adjudication.

So, what if we (as universities?) lobbied for lower statutory damages (when the infringement is not commercial and large-scale), and also said we would not pass along pre-settlement letters, the argument being that we are opposed to the pre-settlement process as a way to avoid having these allegations abide by due process and come before the courts, and that the legal penalties need to be reasonable based on who’s doing what… and then, if both of these changes happened, we could be more supportive of the lawsuit strategy, if the RIAA still wants to pursue it, as it is being done above the board legally and its punitive regimen is not egregious.

from the Chronicle of Higher Education:

“The music industry’s lawsuit crusade against defenseless college students and housewives appears to have hit the skids lately,” Anders Bylund wrote yesterday in a blog post at the Motley Fool. That might come as news to the Recording Industry Association of America. Sure, the trade group’s “John Doe” subpoenas have been knocked around a bit in court lately. But the industry is still moving forward with its campaign of sending pre-litigation notices to college students: Just last week, 403 settlement letters were sent to 22 universities. Officials at those institutions will now have to decide between passing the notices on to students and waiting for the trade group to come calling with “John Doe” subpoenas. The institutions receiving letters this month are Arizona State, Carnegie Mellon, Cornell, Michigan State, and North Dakota State Universities; the Massachusetts Institute of Technology; Purdue University’s West Lafayette and Calumet campuses; the Universities of California at Santa Barbara, Connecticut, Maryland at College Park, Massachusetts at Amherst and Boston, Nebraska at Lincoln, Pennsylvania, and Pittsburgh; and the University of Wisconsin’s Eau Claire, Madison, Milwaukee, Stevens Point, Stout, and Whitewater campuses. –Brock Read

The Chronicle for Higher Education has a report today about the “Digital Citizen Project,” at Illinois State, which has catalogued all of the network use of their students and then gathered from it data about peer-to-peer file-trading activity, scrubbed of identifying data. The project and much of its findings are available here.

There are all sorts of concerns here, about the privacy of the students, about what this data will suggest to university administrators and to the RIAA, which helped sponsor the research. But I think the Chronicle rightly highlights how this work is bound up by the ongoing tension between publishers and content industries on the one hand, and universities on the other. It is clear from the report that Illinois State initiated this project in part to help protect their students from lawsuits, and in fact negotiated with the RIAA that, in exchange for this data, their students would (to an unspecified degree) be immune from lawsuits. They also pointed out that, while the main point of the data is that there is a whole lot of file-trading going on, and much of it is moving files from on to off campus, they also looked at how successful and “anti-piracy” tool like CopySense is in spotting these transactions: the answer, not very. CopySense apparently depends on the files being traded having copyright information in their metadata, which apparently only 2.9% of the files traded did. So the threat from Sen. Reid to insert language into the renewal of the Higher Education Act that universities be required to install such anti-piracy mechanisms, is a pretty empty gesture.

Alfred Yen at Madisonian.net recently commented on a short Newsweek piece about the penalties that can be imposed on parents for the legal infractions of their children. (The full piece is reproduced here.) He points out that

Leading the list of monetary fines (there is also listed a 6 months jail sentence in Kansas for allowing underage drinking at home) was “illegal downloads,” with a fine of “up to $150,000.” Next was “weapons” in California (up to $30,000 “if someone is killed or injured because a child was allowed access to a weapon,” followed by vandalism in Arkansas (a mere $15,000). So, according to this list, the worst thing a parent can do is give his or her child access to a Internet-connected computer that gets used to download infringing material. It’s apparently worse than giving him or her access to a gun that is used to shoot someone. Interesting priorities.

Yep. Of course, this $150,000 number rarley happens in practice, at least with individuals. In the RIAA lawsuits brought against individuals by the RIAA or its member labels, the overwhelming majority are settled, apparently at around $3750. (See Ray Beckerman’s thoughtful and regularly updated synopsis of the RIAA lawsuit process.) The $150,000 number is more a comment on the priorities apparently embodied in copyright law — though motivated in part by lobbying from the music industry, among others.

One of the many troubling things about the RIAA’s strategy of suing individuals for copyright infringement across peer-to-peer networks is that these individuals are sometimes under age, and the RIAA has been willing and eager to extend responsibility to the parents. This is just another aspect of their effort to extend liability and penalty towards secondary agents, whether it be the makers of the file-trading networks, the producers of technologies like mp3 players, the ISPs, the universities.

This may be changing, however. Back in February, an Oklahoma judge found in favor of the defendant in Capitol v. Foster. Foster was charged with copyright infringement, but she claimed that she was not the user they had identified and had never downloaded music from the Internet. Her daughter may or may not have been the one who had been downloading, but the record label decided to push the case, arguing that as the owner of the Internet account used, Foster should be held responsible anyway. The court agreed. And this month, they ordered the record label to pay Foster’s lawyer’s fees, which had ballooned to $68,685.23. Groklaw notes that this decision may have serious repurcussions for this strategy, as it is the first time the RIAA has had to cover costs of those wrongfully sued, which apparently happens quite often. It may also explain why the RIAA has slowed its lawsuit strategy (stopped at 17,587?) and replaced it with its “pre-litigation letter” approach — 2,423 and counting. But it is also a nice reminder