Scrutiny

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 Computer and Communications Industry Association (CCIA) released a report yesterday that could very well change the conversation about copyright. They attempt to measure the economic impact of fair use, using the same terms and techniques suggested by the World Intellectual Property Organization for measuring the economic value of copyright itself. This means considering various industries that depend on some way on fair use, and calculating the impact of that industry in terms of jobs, productivity, etc. This seems to be a phenomenally difficult thing to measure, of course, though probably no more difficult than measuring the value of copyright either. I haven’t had an opportunity to read through the report, so I can’t speak to the validity of its methods. But the punch line is that the industries that depend on fair use (in their sense of it, this includes consumer electronics manufacturers, educational institutions, software developers, and online service and search providers) bring in $45 trillion dollars of revenue, contributed $2.2 trillion to the U.S GDP, or 16.6%. They employ 1 out of every 8 U.S. workers, and export $194 billion in goods.

These are all measures of the total economic value of industries that in some way depend on fair use, not the value of having fair use to those industries, so it doesn’t speak very clearly about what would happen if fair use were more or less robust. These industries would not disappear if fair use did; their economic impact would likely change, though to what degree and even presumably in what direction cannot be determined. What this research does, I think, is two things. First, in a lobbying sense, the industries that depend on robust copyright protection have made a convincing argument that their business have real economic value for the nation. This puts back on the table that these other industries, the makers of tools and the keepers of information and the educators, also have a real and sizable economic footprint. Second, the fair use defense has always been a squishy one: yes, copyright has economic value, but what about cultural freedom, semiotic democracy, the right to remix, free culture, making copies… it starts to fritter away when faced with the economic heft of the content industry. It has often been pointed out that the film, music, and publishing industries have more sway in Congress than their economic scope warrants, that the computer industry is much larger in sheer dollar amounts, and could probably shift the debate if they wanted to. Maybe the CCIA is trying to do just that. (They also recently filed a complaint with the Federal Trade Commission about copyright statements, like the ones made by the NFL during every broadcast, overstate the rights they actually have and try to erase things like fair use.)

(The CCIA includes Sun, Oracle, Microsoft, Google, Yahoo, and Fujitsu, among others.)

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.

I’ve asked my students, who are taking “Copyright in a Digital Age” with me, to be regularly posting on a blog, which you can find here. Right now, its really only been about a week, so they’re just getting started in thinking out the boundaries of the sociocultural questions we have to grapple with, and trying to get their head around the complexity that is copyright law. But they’re a very sharp bunch of juniors and seniors; I expect that, over the course of the fall semester, this blog will (a) reveal what happens when students are asked to systematically think out these issues, (b) may raise some fascinating perspectives and suggestions, and (c) could be another resource for those of us thinking about these issues. I may even ask some of my colleagues who appear on my syllabus, and are willing, to visit the blog and challenge my students a bit.
Feel free to explore the blog and comment if you like.