Information

RIAA begins suing individual sharers of copyrighted mp3 files


“Nobody likes playing the heavy and having to resort to litigation,” said Cary Sherman, president of the Recording Industry Association of America (RIAA) on September 8, 2003, “but when your product is being regularly stolen, there comes a time when you have to take appropriate action.” The product in question was music in the form of digital mp3 files being transmitted among users of Internet file-sharing applications in violation of copyright laws. And while the RIAA’s idea of “appropriate action” in response to digital music piracy had previously meant efforts to shut down the operators of Internet file-sharing systems, the industry group announced a new and controversial strategy on September 8, 2003: the filing of lawsuits against individual users of those systems, some of them children.

“We’ve been telling people for a long time that file-sharing copyrighted music is illegal, that you are not anonymous when you do it, and that engaging in it can have real consequences,” said Mr. Sherman in announcing the RIAA’s new enforcement strategy. By September 2003, having undertaken a massive anti-piracy public-education campaign in the months since Napster was shut down by court order in 2001, and while still pursuing a case against the Dutch operators of a “peer-to-peer” (P2P) file-sharing system called Grokster, the RIAA had decided to back up its public threats with direct legal action against individuals.

The RIAA’s announcement of their first lawsuits against individuals was accompanied by statements of support from music-industry players large and small, including legendary Motown songwriter Lamond Dozier, whose plea to end digital piracy asked those who engaged in illegal file-sharing to “step into the shoes of [music professionals] who have families and children.” But in fact, some of the 261 defendants sued in the first round of RIAA lawsuits were families with children—in many cases, minor children whose parents had no idea about their kids’ music-downloading habits.

Federal law allowed the RIAA to seek damages as high as $150,000 per illegally shared song per defendant, but in practice the RIAA offered defendants the option of establishing a “Clean Slate” by destroying all of their illegally acquired files and paying a settlement of approximately $3 per illegal song. A little more than three weeks after announcing its new legal strategy on this day in 2003, the RIAA announced that 52 of the 261 individuals named in the initial round of lawsuits had reached such cash settlements. Within the next 20 months, the RIAA sued a further 11,195 individuals, reaching financial settlements with 2,484.


Corporate Liability For Online File Sharing

When management assesses the various financial and legal risks of a company's day-to-day operations, it is safe to assume that the staff member listening to the latest Britney Spears album on his or her computer is not the top concern of most compliance officers. Given the substantial money damages that accompany copyright infringement and the increasing likelihood that the music and entertainment industries will soon focus their enforcement actions on corporations which may be liable vicariously or as contributory copyright infringers as a result of their employees' actions, online file sharing in the workplace should become a key concern for every company. To understand how corporate entities may become targets, it is necessary to understand the history of the battle between copyright holders and online file sharing providers and users.

Actions Against P2P Providers

When the Recording Industry Association of America ("RIAA") succeeded in pushing the old Napster out of business in 2001, the RIAA, Motion Picture Association of America ("MPAA") and other trade associations which represent copyright holders whose creative materials are traded via peer-to-peer ("P2P") file sharing networks breathed a collective sigh of relief. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). That respite, however, was temporary as the cat and mouse game between content providers and technology developers moved to the next phase. The demise of the old Napster triggered an explosion in the availability and use of P2P services, through such providers as KaZaA, Morpheus, Grokster, iMesh, eDonkey2000, BearShare, LimeWire and dozens of other systems. At the same time, music sales have been steadily falling and many in the recording industry attribute such declines directly to the widespread availability of free music through such P2P networks.

With the Napster victory in hand, the entertainment industry proceeded to bring lawsuits against some of the most significant new players in the expanding P2P provider industry. The largest service, KaZaA, proved to be the most difficult to engage in litigation since the owner, Sharman Networks, is incorporated in the island nation of Vanuatu and operates out of Australia. While litigating jurisdictional issues with KaZaA, lawsuits proceeded against Streamcast Networks (a/k/a Morpheus) and Grokster. The old Napster was a centralized system in which copyrighted materials were transferred and/or stored using a network controlled by Napster and holding it liable for massive copyright infringement was not difficult. However, the new breed of P2P services differ from the old Napster, in that the systems are pure peer-to-peer systems in which individuals share files with one another by making folders located on their local computer hard drives directly available to other users via the Internet while the P2P operator is incapable of controlling the content of such files. In a dramatic set back for copyright holders, the U.S. District Court for the Central District of California held that Morpheus and Grokster were not liable for copyright infringement, in part because ". here, unlike in Napster, there is no admissible evidence before the Court indicating that Defendants have the ability to supervise and control the infringing conduct. " Metro-Goldwyn-Mayer Studios, Inc. et al. v. Grokster, LTD. Et al, 259 F.Supp.2d 1029, 1045 (C.D.Cal. 2003)

Actions Against Users

Unable to metaphorically chop off the head of the P2P beast, the RIAA then proceeded to take action against individual users of P2P services. Using the subpoena power available under the Digital Millennium Copyright Act, the RIAA sought to compel Internet Service Providers ("ISPs") to disclose the identity of individual P2P users. See, 17 U.S.C. §512(h). While some ISPs such as Verizon and Charter Communications challenged this process as unconstitutional, most ISPs complied with the thousands of subpoenas obtained by the RIAA. See In re: Verizon Internet Services, Inc., 257 F.Supp. 2d 244 (D.D.C. 2003). After collecting vast amounts of user information, the RIAA proceeded to sue 261 individual P2P users throughout the country.

The United States Copyright Act enables the holders of properly registered copyrights to sue for statutory damages and recover between $750 and $30,000 in damages, plus costs and attorneys fees, for each copyright infringed without the need to prove any actual damage or monetary loss to such copyright holder. See, 17 U.S.C. §504(c). In the event willful infringement is proven, this number can be increased to $150,000 per work. Therefore, an individual who intentionally downloads 10 songs from a P2P service could be liable for $1,500,000 damages in a copyright infringement suit despite the fact that the actual retail value of the 10 copies of the songs may be less than $100.

Unsuspecting people, from college students to retirees to children, received lawsuits claiming the maximum liability in the hundreds of millions of dollars per person. This practice of suing individuals peaked the interest of many in Congress who, led by Senator Norm Coleman (R-MN), expressed concern and echoed public outcries over these aggressive tactics against their sympathetic constituents. RIAA has agreed to modify its practices with respect to pursuing individual infringers to limit lawsuits to the most egregious file sharing offenders. The RIAA amnesty program offers to any user (other than those currently the subject of a lawsuit) that would agree to cease all illegal file sharing activities immunity from RIAA litigation. It does not afford such users any protection from non-RIAA owners of copyrighted materials that may have been shared through P2P services, such as performers.

Anticipated Actions Against Corporate Users

Now that P2P service providers are unlikely to be held liable and actions against individual P2P users are met with heightened scrutiny, copyright holders may consider large corporations as the prime targets. Most large corporate entities have elaborate computer networks, vast amounts of bandwidth, and thousands of employees who may be sharing music files. These days Internet usage in the workplace is nearly as common as telephone usage. Yet despite numerous reports that P2P usage is widespread on many corporate computer networks, the RIAA has only filed lawsuits against individuals in its 2003 enforcement program. In one rare exception, the RIAA settled in 2001 with Integrated Information Systems of Arizona, a technology services company that allegedly permitted employees to use a dedicated company server for sharing music files, for a reported $1,000,000. The absence of enforcement actions against corporations could quickly change. The New York Times reported on October 10, 2003, that RIAA has filed suit against the New Jersey flea market operated under the Columbus Farmer's Market name, alleging sale of counterfeit CDs by lessees of the market operator. Mainstream corporations may be next.

It is far easier to trace the origins of a corporate P2P user than a home P2P user. Individuals accessing P2P services from home generally connect to the Internet through broadband or dial-up ISPs, such as telephone and cable companies and AOL and MSN. These ISPs randomly assign each user an Internet Protocol ("IP") address to access the Internet which changes with each separate Internet session. In order to match an IP address to an individual user, the RIAA must subpoena records from an ISP. Many large corporate users, however, have large pools of IP addresses permanently reserved for their use. Therefore, once an IP address is associated with online file sharing, there is no need to file a subpoena to reveal the identity of an individual user since the IP address can be easily traced directly back to a large corporation.

With this information in hand, copyright holders could seek to bring actions against the corporate entity without ever knowing, or needing to know, the specific identity of the individual user on the other side of the corporate firewall. Since employers can be held liable as contributory or vicarious infringers for the acts of their employees while using the company's computer networks, as long as the prohibited use can be traced back to the corporation in question, the copyright holder's search can end there. Even if the corporation does not contribute to the infringement or benefit from it in any way, merely defending such an action would be costly and disruptive. To further the goal of dissuading use of P2P networks, suing individuals may prove to be more effective since the resources of most individuals to contest such lawsuits are not as significant as those of large corporations. Many individuals, while receiving lawsuits alleging liability for hundreds of millions of dollars in statutory damages, have settled such cases for a few thousand dollars. However, if the goals of the RIAA's enforcement actions shift from making examples of randomly selected individuals to collecting larger sums of money from infringers, then actions against deep-pocketed corporations could become the next phase in the legal wranglings. At the same time, with the current RIAA enforcement actions scaring individuals away from engaging in file sharing at home, such users may turn to their office computers more for such activities, believing that they are less likely to be held personally liable. Much like the enforcement actions of the Business Software Alliance ("BSA") which pursues corporations for using unlicensed software, the RIAA may encourage disgruntled employees to confidentially disclose actions on their employer's networks and use such disclosures to force large settlements.

It is incumbent upon every company that permits Internet access in the workplace to take firm measures to stop illegal file sharing, lest the company become subject to millions of dollars in liability. It can safely be assumed that any employee accessing a P2P network is either uploading or downloading copyrighted materials. No employee needs to ever access a P2P service for business purposes. Even the legal online music services, such as the new Napster (formerly PressPlay), Rhapsody/Listen.com and Apple's iTunes, post personal use only licenses and prohibit any use of their services for a commercial purpose. The sole exception for P2P usage may be if the employee is searching for public domain works, but such access should be limited and closely supervised. If an employee needs to share a permitted file with another party, then the file can be attached to an email without using a P2P service. In addition, P2P software often has other programs bundled with the download unbeknownst to the end user, and P2P networks have seen an increase in the number of computer viruses.

10 Practical Recommendations

With this background, the following are steps for a corporate compliance program and best practices to take to deter and eliminate illegal file sharing on corporate networks and to protect the company from liability: (i) Assign responsibility for compliance to a senior officer and senior IT department member (ii) Create a regular audit program which specifies tasks, frequency, responsibilities and reporting (iii) Adopt employee policies, and send employees reminder notices, which prohibit the downloading of any materials from the Internet of a software or entertainment nature for storage or use on company equipment, unless specifically authorized by senior management (iv) Inform employees that they will be held personally responsible for any damages as a result of copyright infringement (v) Restrict Internet access to web sites that provide P2P services and require specific manager approval where absolutely necessary for a legitimate and documented business purpose (vi) Regularly search network drives for common file extensions of potentially illegal files such as *.mp3, *.wav, *.wma, *.mov and *.mpg (vii) Identify departments or locations where infringement is perceived to be likely or is found to be prevalent (viii) Conduct random inspections of employees' local computers for the presence of file sharing software or illegal multimedia files and arrange for the orderly deletion of any prohibited materials after documenting the contents discovered (ix) Take disciplinary action against any employee that violates the company's policies regarding copyrighted materials and (x) Document all policies, procedures and enforcement actions in connection with the foregoing.

It is no longer a risk-free alternative to ignore the actions of employees using the corporate network. By taking a proactive approach to prevent the use of the corporate network for infringing purposes, a company can minimize the risk of inviting a lawsuit which would be costly to defend and potentially even more costly in a settlement or adverse judgment.


Why the Recording Industry Really Stopped Suing Its Customers

The RIAA (Recording Industry Association of America) has announced that they’re going to stop suing people for pirating music on P2P networks. For people under 30 years old, this has been the cause of much rejoicing. For those over 30, it may come as a surprise that the record companies were suing random individuals for sharing MP3s in the first place.

So they’ve stopped suing customers. Does this mean the beginning of music companies singing (and file sharing) barbershop harmonies with the likes of BitTorrent, Limewire and Kazaa?


To find out, the first question must be: what did the RIAA hope to gain from the lawsuits in the first place?
It couldn’t have been for the financial gain. Not only did they lose as often as they won, but many of their intended victims didn’t even bother to show up in court. It wasn’t for the artists. Musicians weren’t seeing any benefit and wondered aloud what happened to the money that was collected because it certainly wasn’t sent to them.

If you steal music or movies, you are breaking the law.

And then it tells you your IP address has been logged.

So is the RIAA stopping lawsuits because it wasn’t achieving that goal? Hardly. Or rather, in 5 years and over 35,000 lawsuits, it hasn’t gotten anywhere near frightening people away from file sharing. It’s been estimated that tens of millions of people are exchanging illicit files at this moment.

Nabbing a fraction of a percent of the offenders might be worthwhile if that didn’t include the children, computer-less, homeless, and dead people that the they sued. To be blunt, the lawsuits were unabashedly ineffective, counterproductive, and, an PR morass that make La Brea look like a sticky mud puddle. They wiped out college savings accounts, attempted to get elementary school students to rat on their parents, and descended on parking attendants with full SWAT team armor. The only way for the RIAA to make worse PR for the music industry would have been to threaten to wipe out the hard drives of every person who’s got an MP3, any MP3, because it might be an illicit copy of “The Night They Drove Old Dixie Down” — oh wait, they did that too.

At every turn, RIAA lawyers argued that such mistakes paled in comparison to the damage done to their corporate clients — billions of allegedly lost dollars — as if every downloader would have purchased the song if P2P didn’t exist. Hey, so their tactics didn’t distinguish between felons and bystanders. In their defense, they said, “When you fish with a net, you are going to catch a few dolphins.” With Ziploc-tight reasoning like that, it would seem that nothing would ever stop their lawsuit juggernaut.

Which is why they never intended on stopping.

The Stupidity Express was brought to its final stop for one powerful reason: money. They ran out of it. Lawsuits are expensive, and with the financial crisis combined with the fall in recorded music sales, the record companies (Warner, EMI, Sony, etc.) who fund the RIAA have been cutting back on their contributions and threatening to erase the organization completely.

The truth is, even with falling sales the record companies haven’t accepted the reality that music copying is here to stay. As an example, in the same paragraph that the RIAA stops threatening you personally with lawsuits, they switch to threatening your Internet connection. The RIAA won’t sue you, they’ll sue Comcast for not being vigilantes of copyright. The logic here is that they can launch fewer lawsuits, save some cash, and still stop you from BitTorrent-ing “Tiny Bubbles.”
Which is just as stupid.


It would be easy to stand back from the fray and say that the record companies should be smarter and figure out how to change their business model to adapt.
But for anyone who’s ever worked in a corporation, with its hierarchy, politics, and rewards for immediate results knows that calling the established practices (and therefore your bosses) wrongheaded usually leads to working in a cubicle in the satellite office in Reseda.

That’s why it’s better for the average record exec to suggest that MP3 players be taxed to make up revenue shortfalls. Or that putting the Beatles or AC/DC on iTunes is wrongheaded — as if that will keep people buying albums. Or to use a tried-and-true strategy for falling profits: raise the price of CDs and downloads. In this, the real world, the record companies can and will try to use everything — even the law — to halt technology, rather than change themselves. Even if it seems insane to the rest of us.


What happens next is what happens to all companies beholden to technology.
Railroad eclipsed by trucks. Radio relegated to top 40, oldies and edge-of-the-dial Pentecostals by television. The worldwide transport of blocks of ice evaporated by home refrigeration. Whale oil, buggy whips, petticoats, stone axes, and so on.* All were responsible for wealth ranging from the mansions of Newport to the best burial mound on the Steppe at one time, and now are all equally dead and gone.

At the moment, record companies are still making some people rich enough to buy gold coffins and as long as that’s true, the end of RIAA’s lawsuits isn’t about music companies embracing digital. It means business as usual, as they try to keep an old way of business and its obsolete technology on life support. Maybe someday, someone will figure out how to keep music and commerce together and alive, but that day isn’t today.**

*This is a bronze age orientation sketch by Mitchell and Webb for two stone age workers. Favorite quote: “Smelting may be fine for the lads.”

**As mentioned previously in this blog, one of the people hoping to do that is me, with my startup Jamseed. And one of the things I have going for me is being an outsider and not caught up trying to preserve the past.


Unauthorized Copying is Against the Law

Copyright law protects the value of creative work. When you make unauthorized copies of someone’s creative work, you are taking something of value from the owner without his or her permission. Most likely, you’ve seen the FBI warning about unauthorized copying at the beginning of a movie DVD. Though you may not find these messages on all compact discs or music you’ve downloaded from the Internet, the same laws apply. Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution, rental or digital transmission of copyrighted sound recordings. (Title 17, United States Code, Sections 501 and 506).

What the Law Says and What it Means

Making unauthorized copies of copyrighted music recordings is against the law and may subject you to civil and criminal liability. A civil lawsuit could hold you responsible for thousands of dollars in damages. Criminal charges may leave you with a felony record, accompanied by up to five years of jail time and fines up to $250,000. You may find this surprising. After all, compact discs may be easily be copied multiple times with inexpensive CD-R burning technology. Further, when you’re on the Internet, digital information can seem to be as free as air. U.S. copyright law does in fact provide full protection of sound recordings, whether they exist in the form of physical CD’s or digital files. Regardless of the format at issue, the same basic principle applies: music sound recordings may not be copied or distributed without the permission of the owner.

What the Courts Have to Say

A long series of court rulings has made it very clear that uploading and downloading copyrighted music without permission on P2P networks constitutes infringement and could be a crime.

Common examples of online copyright infringement:

  • You download an app on your smartphone that allows you to ‘strip’ the audio from any YouTube music video and permanently keep that audio in your music collection.
  • You make an MP3 copy of a song because the CD you bought expressly permits you to do so. But then you put your MP3 copy on the Internet, using a file-sharing network, so that millions of other people can download it.
  • Even if you don’t illegally offer recordings to others, you join a file-sharing network and download unauthorized copies of all the copyrighted music you want for free from the computers of other network members.
  • In order to gain access to copyrighted music on the computers of other network members, you pay a fee to join a file-sharing network that isn’t authorized to distribute or make copies of copyrighted music. Then you download unauthorized copies of all the music you want.
  • You transfer copyrighted music using an instant messaging service.
  • You have a computer with a CD burner, which you use to burn copies of music you have downloaded onto writable CDs for all of your friends.
  • Someone you don’t know e-mails you a copy of a copyrighted song, which you forward to your friends.

When It Comes to Copying Music, What’s Okay And What’s Not:

Technology has made digital copying easier than ever. But just because advances in technology make it possible to copy music doesn’t mean it’s legal to do so. Here are tips on how to enjoy the music while respecting rights of others in the digital world. Stick with these, and you’ll be doing right by the people who created the music.

Internet Copying

  • It’s okay to download and stream music from sites authorized by the owners of the copyrighted music, whether or not such sites charge a fee.
  • Visit www.musicmatters.com for a list of a number of authorized and safe sites where permission is granted and content is available for downloading and/or streaming.
  • It’s never okay to download unauthorized music from pirate sites (web or FTP) or peer-to-peer systems, such as BitTorrent.
  • It’s never okay to make unauthorized copies of music available to others (that is, uploading music) on peer-to-peer systems.

Copying CDs

  • It’s okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but not for commercial purposes.
  • Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:
    • The copy is made from an authorized original CD that you legitimately own
    • The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
    • The owners of copyrighted music have the right to use protection technology to allow or prevent copying.
    • Remember, it’s never okay to sell or make commercial use of a copy that you make.

    Are there occasionally exceptions to these rules? Sure. A “garage” or unsigned band might want you to download its own music but, bands that own their own music are free to make it available legally by licensing it. And, remember that there are lots of authorized sites where music can be downloaded for free. Better to be safe than sorry—don’t assume that downloading or burning is legal just because technology makes it possible.

    Enjoy the music. By doing the right thing, you’ll be doing your part to make sure that the music keeps coming.

    * This site is intended to educate consumers about the issues associated with the downloading, uploading and consumer copying of music. It is not intended to offer legal advice or be a comprehensive guide to copyright law and the commercial uses of music.

    The Recording Industry Association of America® (RIAA) is the trade organization that supports and promotes the creative and financial vitality of the major music companies. Its members comprise the most vibrant record industry in the world, investing in great artists to help them reach their potential and connect to their fans. RIAA members create, manufacture, or distribute sound recordings representing approximately 85% of all legitimate recorded music consumption in the United States.


    Copyright Vultures Are At It Again!

    The Copyright Industry, especially the RIAA (Recording Industry Association of America), and MPAA (Motion Picture Association of America) have suppressed every form of innovation, and technology to protect their questionable rights. In the 80s, they sued to stop video recorders, but were thankfully held back by the Supreme Court in the famous Betamax case. The Media Industry forced manufacturers of blank cassettes, tapes, and CDs to pay a royalty to reimburse the industry because the blank recording media might be used to infringe copyright. That is right your preacher's sermon tapes actually were forced to subsidize Hollywood.

    In 1998, the RIAA sued to stop the first portable Mp3 player, Diamond Rio, from being sold.

    In 1999, they took down Napster, the breakthrough file sharing program upstart. Then they cut a swath of destruction going after a plethora of file sharing services, with such vicious tactics as suing children who downloaded songs for unconscionable amounts of money.

    Upping the outrage, they tried to gut the First Amendment with the SOPA (Stop Online Piracy Act), which imperiled the whole Internet by making search engines and hosting companies liable for piracy that the technology companies had nothing to do with. Only when technology giants apprised Congress that technology produced more jobs than the media, did Congress back off. Temporarily!

    In 2014, the RIAA considered suing Google for even listing sites that people could use to rip media.

    The RIAA previously found that for 98% of the music related searches they performed, &ldquopirate sites&rdquo were listed on the first page of the search results. According to the music group, this is an indication that more proactive measures are required, in the interests of both Google and the labels.

    &ldquoSo the enforcement system we operate under requires us to send a staggering number of piracy notices &ndash 100 million and counting to Google alone&mdashand an equally staggering number of takedowns Google must process. And yet pirated copies continue to proliferate and users are bombarded with search results to illegal sources over legal sources for the music they love,&rdquo Sherman notes. - Torrent Freak

    Why is it in Google's interest to doctor their search engine results for make the copyright industry happy? And is the word, "bombarded" appropriate for providing the public with search results that the public wants? This is industry propaganda. Now, the RIAA is going full speed after You Tube ripping.

    So what is YouTube ripping?

    A few years ago, soon after file sharing sites were sued into oblivion, technology surfaced which made it possible to rip the music directly off of YouTube videos. No longer did one have to download buggy software to download files - and which ironically opened one's computer to viruses. One could merely go to YouTube, copy the URL and then go to a ripping site to split the mp3 music off of the video, and then download it. This 2010 video - made at just about the same time that LimeWire file sharing service was finally taken down - gives some instruction. (Click Here). More recent instruction videos are easily searched out. Newer sites are incredibly ease to use.

    News of the YouTube ripping technique spread slowly at first, except among technophiles but soon enough, the Media Industry's victory over file sharing software/services would prove pyrrhic. YouTube ripping had the advantage of being incredibly easy and all but untraceable. No need to worry about RIAA lawsuits.

    So, now, the RIAA is back again, crying foul, going nuts, suing YouTube ripping sites.

    This week a huge coalition of recording labels headed by the RIAA, IFPI, and BPI, sued YouTube ripping service YouTube-MP3. Today we take a closer look at the lawsuit which was filed against a German company, owned and operated by a German citizen, which could seek damages running into the hundreds of millions of dollars. - Torrent Freak

    This time, the RIAA has lost all reason. They are once again playing Whack-a-Mole - which is what they have been doing all along. If history teaches anything, innovators, by their very nature, will always outpace Luddites. YouTube ripping sites have proliferated across the web - with this link at this time, showing 95 million results for a search for YouTube rippers.

    Nothing will stop the RIAA, the MPAA, and the Media Industry, though.

    Hollywood media moguls are intent on preserving a dying business model. Worse yet, they expect technology companies to provide the technical expertise to protect their quasi-monopoly. It is much cheaper to have Google, Microsoft, and Facebook pay programmers to fight piracy than the RIAA actually hiring programmers to come up with the technology themselves.

    Then again, their incompetence in this area has been humiliating.

    In an attempt to curb music piracy, major labels such as Sony started selling music CDs that have built-in &ldquocopy-proof&rdquo technology. The technology was meant to stop people from copying music from these discs onto recordable CDs or hard drives. There's a fatal flaw in this technology, however, which allows you to bypass the copy protection with a simple marker pen, and a recent upsurge in Internet newsgroup talk about this flaw has brought it to light again. -- Geek (2002)

    Open up a cafe or a bar with some live music and you could be forced to pay three royalty collection agencies: ASCAP, BMI, and SESAC.

    Antonowisch explained that once ASCAP got wind that they had live music (even though they were only holding about 12 concerts a year), ASCAP began their crusade. &ldquoThey called us everyday. They sent two letters a day. They threatened us with a lawsuit because they said we had violated copyright,&rdquo Antonowisch lamented. As not to get sued, the coffee shop owners conceded. They agreed to pay ASCAP the $600 yearly license for the right to have live music.

    But then they found out that there was another PRO that required the same license. BMI. (snip)

    Then, as luck would have it, SESAC got in touch. And they demanded just over $700.)snip)

    Bauhaus [the cafe] actually explained to ASCAP that all of their musicians play original music and ASCAP shot back &ldquohow do you know? Do you know every song ever written?&rdquo So the PROs won&rsquot believe a venue if they claim that they only host original music. And all it takes is one musician to play one cover song for a PRO to sue for serious damages. - Digital Music News

    Consider them three mafias. A protection racket. Once you pay one, the others want their cut. Add in the MPAA, the RIAA, and it is legalized corruption. Congress indulges them because the media can make or break a politician's career and so Congress passes more and more noxious copyright laws, to protect their monopoly.

    As part of draining the swamp, this new administration has nothing to lose offending the media. Trump should reform our copyright laws. Copyrights should be limited to no more time than patents: 20 years. Getting a technical patent can require decades of investments and education. Why should a song written over a short period of time get protected for 70 years plus the life of the author?

    These media moguls are mafiosi in legal garb. It is high time they were told that it is not the duty of Google, YouTube, Microsoft, or Apple to protect their recordings. If the media companies cannot protect their own product, then so be it.

    Let the industry die off. It is a dinosaur in an age of mammals. It is a relic that has lots its usefulness like royalty, and aristocracy. We won't have to suffer industry stars telling us how enlightened they are, and how retro-stupid the public is.

    For decades they have monopolized American and Western culture - often destroying our core values - and charged us for the privilege of their artistic rampage. We were stupid to put up with it. Now they are suing us. Let them die out. Let music and artistic creation return to the individual, as it was when the republic was born. Let the copyright attorneys find something useful to do.

    Mike Konrad is the pen name of an American who wishes he had availed himself more fully of the opportunity to learn Spanish in high school, lo those many decades ago.

    The Copyright Industry, especially the RIAA (Recording Industry Association of America), and MPAA (Motion Picture Association of America) have suppressed every form of innovation, and technology to protect their questionable rights. In the 80s, they sued to stop video recorders, but were thankfully held back by the Supreme Court in the famous Betamax case. The Media Industry forced manufacturers of blank cassettes, tapes, and CDs to pay a royalty to reimburse the industry because the blank recording media might be used to infringe copyright. That is right your preacher's sermon tapes actually were forced to subsidize Hollywood.

    In 1998, the RIAA sued to stop the first portable Mp3 player, Diamond Rio, from being sold.

    In 1999, they took down Napster, the breakthrough file sharing program upstart. Then they cut a swath of destruction going after a plethora of file sharing services, with such vicious tactics as suing children who downloaded songs for unconscionable amounts of money.

    Upping the outrage, they tried to gut the First Amendment with the SOPA (Stop Online Piracy Act), which imperiled the whole Internet by making search engines and hosting companies liable for piracy that the technology companies had nothing to do with. Only when technology giants apprised Congress that technology produced more jobs than the media, did Congress back off. Temporarily!

    In 2014, the RIAA considered suing Google for even listing sites that people could use to rip media.

    The RIAA previously found that for 98% of the music related searches they performed, &ldquopirate sites&rdquo were listed on the first page of the search results. According to the music group, this is an indication that more proactive measures are required, in the interests of both Google and the labels.

    &ldquoSo the enforcement system we operate under requires us to send a staggering number of piracy notices &ndash 100 million and counting to Google alone&mdashand an equally staggering number of takedowns Google must process. And yet pirated copies continue to proliferate and users are bombarded with search results to illegal sources over legal sources for the music they love,&rdquo Sherman notes. - Torrent Freak

    Why is it in Google's interest to doctor their search engine results for make the copyright industry happy? And is the word, "bombarded" appropriate for providing the public with search results that the public wants? This is industry propaganda. Now, the RIAA is going full speed after You Tube ripping.

    So what is YouTube ripping?

    A few years ago, soon after file sharing sites were sued into oblivion, technology surfaced which made it possible to rip the music directly off of YouTube videos. No longer did one have to download buggy software to download files - and which ironically opened one's computer to viruses. One could merely go to YouTube, copy the URL and then go to a ripping site to split the mp3 music off of the video, and then download it. This 2010 video - made at just about the same time that LimeWire file sharing service was finally taken down - gives some instruction. (Click Here). More recent instruction videos are easily searched out. Newer sites are incredibly ease to use.

    News of the YouTube ripping technique spread slowly at first, except among technophiles but soon enough, the Media Industry's victory over file sharing software/services would prove pyrrhic. YouTube ripping had the advantage of being incredibly easy and all but untraceable. No need to worry about RIAA lawsuits.

    So, now, the RIAA is back again, crying foul, going nuts, suing YouTube ripping sites.

    This week a huge coalition of recording labels headed by the RIAA, IFPI, and BPI, sued YouTube ripping service YouTube-MP3. Today we take a closer look at the lawsuit which was filed against a German company, owned and operated by a German citizen, which could seek damages running into the hundreds of millions of dollars. - Torrent Freak

    This time, the RIAA has lost all reason. They are once again playing Whack-a-Mole - which is what they have been doing all along. If history teaches anything, innovators, by their very nature, will always outpace Luddites. YouTube ripping sites have proliferated across the web - with this link at this time, showing 95 million results for a search for YouTube rippers.

    Nothing will stop the RIAA, the MPAA, and the Media Industry, though.

    Hollywood media moguls are intent on preserving a dying business model. Worse yet, they expect technology companies to provide the technical expertise to protect their quasi-monopoly. It is much cheaper to have Google, Microsoft, and Facebook pay programmers to fight piracy than the RIAA actually hiring programmers to come up with the technology themselves.

    Then again, their incompetence in this area has been humiliating.

    In an attempt to curb music piracy, major labels such as Sony started selling music CDs that have built-in &ldquocopy-proof&rdquo technology. The technology was meant to stop people from copying music from these discs onto recordable CDs or hard drives. There's a fatal flaw in this technology, however, which allows you to bypass the copy protection with a simple marker pen, and a recent upsurge in Internet newsgroup talk about this flaw has brought it to light again. -- Geek (2002)

    Open up a cafe or a bar with some live music and you could be forced to pay three royalty collection agencies: ASCAP, BMI, and SESAC.

    Antonowisch explained that once ASCAP got wind that they had live music (even though they were only holding about 12 concerts a year), ASCAP began their crusade. &ldquoThey called us everyday. They sent two letters a day. They threatened us with a lawsuit because they said we had violated copyright,&rdquo Antonowisch lamented. As not to get sued, the coffee shop owners conceded. They agreed to pay ASCAP the $600 yearly license for the right to have live music.

    But then they found out that there was another PRO that required the same license. BMI. (snip)

    Then, as luck would have it, SESAC got in touch. And they demanded just over $700.)snip)

    Bauhaus [the cafe] actually explained to ASCAP that all of their musicians play original music and ASCAP shot back &ldquohow do you know? Do you know every song ever written?&rdquo So the PROs won&rsquot believe a venue if they claim that they only host original music. And all it takes is one musician to play one cover song for a PRO to sue for serious damages. - Digital Music News

    Consider them three mafias. A protection racket. Once you pay one, the others want their cut. Add in the MPAA, the RIAA, and it is legalized corruption. Congress indulges them because the media can make or break a politician's career and so Congress passes more and more noxious copyright laws, to protect their monopoly.

    As part of draining the swamp, this new administration has nothing to lose offending the media. Trump should reform our copyright laws. Copyrights should be limited to no more time than patents: 20 years. Getting a technical patent can require decades of investments and education. Why should a song written over a short period of time get protected for 70 years plus the life of the author?

    These media moguls are mafiosi in legal garb. It is high time they were told that it is not the duty of Google, YouTube, Microsoft, or Apple to protect their recordings. If the media companies cannot protect their own product, then so be it.

    Let the industry die off. It is a dinosaur in an age of mammals. It is a relic that has lots its usefulness like royalty, and aristocracy. We won't have to suffer industry stars telling us how enlightened they are, and how retro-stupid the public is.

    For decades they have monopolized American and Western culture - often destroying our core values - and charged us for the privilege of their artistic rampage. We were stupid to put up with it. Now they are suing us. Let them die out. Let music and artistic creation return to the individual, as it was when the republic was born. Let the copyright attorneys find something useful to do.

    Mike Konrad is the pen name of an American who wishes he had availed himself more fully of the opportunity to learn Spanish in high school, lo those many decades ago.


    This document is presented to students at the University of Maryland, Baltimore (UMB) to provide information about the lawful use of copyrighted materials on UMB&rsquos computing networks and in UMB facilities, as well as to provide information about the consequences of illegally uploading, downloading, and sharing music, games, and movies.

    This document is not intended to be a comprehensive treatment of the copyright laws it is intended to provide basic information to help you understand the differences between legal and illegal file sharing. You are urged to print a copy of this document and read it carefully.

    In the past, many students have ignored the information provided to them about the consequences of illegal file sharing and, as a result, have been sued and had to pay thousands of dollars in financial settlements for infringing on the copyrights of music and movie companies.

    Risks of illegal file sharing

    Contrary to what many students believe, U.S. federal law treats the unauthorized uploading, downloading, or sharing of copyrighted material as a serious offense that carries serious consequences. Any UMB computer account holder who infringes copyright laws risks a lawsuit by the copyright holder, loss of access to the UMB computer system, and disciplinary action by UMB.

    In recent years, copyright holders and their trade associations &mdash especially the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) &mdash have aggressively pursued copyright holders&rsquo rights and have been increasingly focused on university students. In some cases, the cost of settlement has ranged from approximately $3,000 to $8,000 or more for the initial offense, which may have been no more than the download of a single song, to upwards of such amounts for subsequent offenses. You also risk a possible criminal record by participating in infringing behavior. In December 2008, the RIAA announced a change in strategy and said that it would begin to work with ISPs to combat illegal file sharing.

    UMB prohibits any infringement of intellectual property rights by any member of the UMB community. It is against UMB policy to participate in the violation of the intellectual property rights of others. Please refer to UMB&rsquos policies regarding use of UMB computing resources: UMB IT Acceptable Use Policy and UMB IT Residential Network (ResNet) Policy.

    UMB is committed to the education of its students. Over the past few years, UMB has increased its efforts to make students aware of the policies that govern the use of its computing facilities and systems and to encourage the responsible use of UMB computing resources. These efforts include providing information about copyright laws, particularly with regard to file sharing.

    To protect you and the university from legal actions, we want to help you better understand the acts that constitute violations of federal copyright law, especially with regard to peer-to-peer (P2P) networks. If you use UMB&rsquos network to access, download, upload, or otherwise share copyrighted materials without permission, without making a fair use, or without falling under another exception under copyright law, you are likely infringing copyright laws.

    In general, copyright infringement occurs when someone makes a copy of any copyrighted work, such as songs, videos, software, cartoons, photographs, stories, or novels, without permission (i.e., a license) from the copyright owner and without falling within the specific exceptions provided for under the copyright laws. These exceptions include, without limitation, "fair use," which is briefly described below, and provisions of the Audio Home Recording Act, which allow for noncommercial copying of lawfully acquired music onto recordable compact discs (CD-Rs).

    P2P file sharing and copyright infringement

    Peer-to-peer (P2P) computing is a powerful technology that has many uses. P2P networks can be used to share and exchange music, movies, software, and other electronic materials. The use of P2P networks to upload, download, or share copyrighted material, such as movies, music, and software, can violate the rights of copyright owners.

    In the P2P file-sharing context, infringement may occur, for example, when one person purchases an authorized copy and uploads it to a P2P network. When one person purchases a CD, creates an MP3 or other digital copy, and uses a P2P network to share that digital copy with others, the individual who makes the file available and those making copies may be found to have infringed the rights of the copyright owner(s) and may be violating federal copyright law.

    Although some artists and smaller labels release music under "generous" licenses, such as Creative Commons licenses, all of the major labels consider sharing MP3 files of their music over P2P networks as copyright infringement.

    UMB advises all computer account holders to use extreme caution when installing P2P software and to read all user agreements carefully beforehand. Make sure that you read all available documentation from the P2P software provider and understand how the P2P software is configured and operates.

    Some P2P programs have default settings that index the files on your computer and make music or film files that you have legitimately acquired available to other users of the P2P network without your being aware of the activity. In such cases, you may unwittingly participate in copyright infringement. In this context, not being aware that your computer is making files available to other users may not be a defense to copyright infringement.

    You are responsible for all activity that transpires through your computing account and the devices that are registered to you.

    Infringing conduct exposes the infringer to the risk of serious legal penalties, civil and criminal. Civil penalties may include actual damages and profits, or statutory damages (ranging from $750 to $30,000 per work that is infringed). Moreover, the court also can award reasonable attorney&rsquos fees and costs and increase the damages in the case of a willful infringement. Criminal penalties can include fines and imprisonment.

    Organizations such as the RIAA and the MPAA monitor P2P networks, obtaining "snapshots" of users' internet protocol (IP) addresses, the files that users are downloading or uploading from their P2P directories, the time that downloading or uploading occurs, and the internet service provider (ISP) through which the files travel.

    Copyright owners have been known to target those who upload music over the P2P network and those who download from the network. In addition to monitoring networks and obtaining IP address "snapshots," copyright owners have been known to use P2P networks themselves, uploading copyrighted content while keeping a legal record of the downloading actions of other users.

    Once an IP address and other information have been obtained, the RIAA, MPAA, and other copyright owners and their representatives can file a "John Doe" lawsuit and issue a subpoena to the ISP demanding the identity of the user connected to that IP address.

    Copyright infringement notifications

    As an ISP for its students, faculty, and staff, UMB receives notices from the RIAA and MPAA identifying the IP addresses of UMB account holders believed to be sharing copies of copyrighted music and videos without authorization. UMB reserves the right to demand that the infringing conduct cease immediately where necessary, UMB will revoke the identified individual&rsquos access to the UMB computer system. In serious situations, further disciplinary sanctions may be appropriate.

    The RIAA or MPAA has often presented an option for the alleged illegal file sharer to settle the lawsuit out of court for some amount of money. If the user is determined to have infringed copyrights, whether through P2P networks or other means, and has not settled, he or she also may be subject to sanctions such as monetary damages and the required destruction of all unauthorized copies. In certain circumstances, federal authorities can criminally prosecute copyright infringement. By participating in illegal file sharing, you may be subject to a lawsuit even after you have destroyed any illegal copy or copies of copyrighted material that were in your possession. For more information about the different types of notices related to copyright infringement, see Attachment A.

    'Fair use'

    Copyright law provides no blanket exception from liability for university students based solely upon their status as students. There are limited circumstances in which the use of copyrighted materials without permission is allowable. One of these circumstances is under the legal doctrine of "fair use," such as for purposes of news reporting, criticism, commentary, or teaching. Whether use of copyrighted material without permission is fair use depends on a detailed, case-by-case analysis of various factors. For a better understanding of these factors, visit the U.S. Library of Congress website.

    There is an alternative: legal downloading

    For legal alternatives to copyright infringement and more information about copyright compliance, please visit the EDUCAUSE website.

    When you buy music or movies online or buy a CD or DVD, it is important to understand the answers to the following questions:

    1. What permissions come with the product? These range from very broad Creative Commons permissions, which allow for redistribution under certain conditions, to very restrictive requirements, which allow play on only one machine, or allow only streaming, etc. It is incumbent upon you to understand the permissions.
    2. What digital restrictions, if any, are used with the product? Many services use digital rights management (DRM) technology to control the use of the music or other digital works they sell. DRM usually reflects the permissions and can range from allowing unlimited burns to CD to preventing any copying at all. DRM models also can limit what kind of devices you can play the music on. DRM with a subscription-based model may render the music unplayable if the subscription is not maintained. Some services do not use DRM.

    In conclusion, you need to be aware that sharing music, videos, software, and other copyrighted material may be a violation of law and can expose you and those with whom you share materials to civil and criminal penalties. Please be responsible in your use of copyrighted materials.

    Attachment A

    Types of Copyright Infringement Notifications

    Copyright holders and organizations that represent copyright holders, such as the RIAA and MPAA, typically send out three types of communications related to copyright infringement:

    1. Cease and desist, or copyright infringement, notices: The purpose of these notices is to stop the illegal possession and distribution of copyrighted material. When the Center for Information Technology Services (CITS) receives these notices from copyright holders or their representatives, CITS contacts the user whose Internet Protocol (IP) address has been identified in the notice. CITS notifies the user that illegal copies of copyrighted materials must be destroyed.
    2. Pre-litigation notices: These letters are used by copyright holders and their representatives prior to filing a lawsuit to recover, by way of a settlement, financial damages caused by the illegal distribution of copyrighted material. If you have been identified as participating in the illegal downloading or uploading of copyrighted materials, you may receive one of these notices, even if you have already destroyed your copy (or copies) of the material(s) in question.
    3. Subpoenas: These notices indicate that the copyright holder has filed a lawsuit to recover damages for the illegal distribution of copyrighted material. If the court finds you liable, you will be subject to fines and penalties.

    UMB prohibits the use of its computing resources to conduct illegal activity. The University complies with applicable federal, state, and local laws and requires that users do the same. In receiving a UMB computing account, users agree to obey the University&rsquos computing policies and the laws referenced by these policies. Users are responsible for all activity that transpires through their computing accounts and the devices that are registered to them.

    The University of Maryland, Baltimore is the founding campus of the University System of Maryland.
    620 W. Lexington St., Baltimore, MD 21201 | 410-706-3100
    © 2021 University of Maryland, Baltimore. All rights reserved.

    The University of Maryland, Baltimore is the founding campus of the University System of Maryland.
    620 W. Lexington St. , Baltimore , MD 21201 | 410-706-3100


    Any There There? RIAA Agreements Remain Flimsy, Unconfirmed

    That was trumpeted by major labels over the pre-Christmas weekend, but a closer look reveals flimsy or nonexistent deals with ISPs, at least for now. “We have agreements with some leading ISPs,” RIAA executive Jonathan Lamy vaguely told Digital Music News on Monday, December 22nd, without naming names. “But not all. And the agreements are on principle.”

    That sounds rather unconvincing, and ISPs have traditionally resisted entertainment industry moves for greater subscriber enforcement. Over the past few years, the RIAA has frequently found itself battling access providers, especially over issues related to subscriber privacy and due process.

    In that climate, will ISPs suddenly start removing accounts and issuing threatening letters? The answer depends on the specific ISP involved, according to a preliminary canvass conducted by Digital Music News. Ahead of the Christmas holiday, a number of US-based access providers were contacted, both through customer service and executive channels, specifically on the issue of warning letters and account terminations.

    The results are still coming in, and many executives have been on holiday hiatus. But service representatives at AT&T, Road Runner (Time Warner), United Online, Verizon, and Earthlink indicated that users account will not be terminated.

    In fact, one of the largest ISPs, Verizon, told Digital Music News that a sweeping, stepped-up agreement with the RIAA simply does not exist. “We have agreements with some copyright owners, and if they believe that their copyright has been abused, we will forward that complaint to a customer without disclosing the name of that customer,” said Eric Rabe, senior vice president of Media Relations at Verizon. “We have a long history of judiciously protecting the identities of our customers.”

    In other words, Verizon is not modifying existing agreements or subscriber protection policies that have been standing for years. “The RIAA seems to be out there discussing these agreements, but we’re not aware of it, whatever it is,” Rabe continued. “We understand that there must be respect for copyright, and that it is important for the development of content. But we need some sort of balance, and there are procedures and laws in the courts now that allow copyright holders to take action. If we receive a subpoena, we will respond.”

    Verizon has revealed identities, usually under a direct court order, though the company has offered little more. “A wholesale short-circuit of the legal system, or a system in which alleged copyright holders are handled in bulk – we have resisted that,” Rabe noted. That also goes for a campaign that sends threatening letters to suspected infringers on a massive scale, one that would follow in the footsteps of a British multi-industry agreement.

    Alternatively, AOL, Comcast, and Charter Communications representatives indicated that accounts will be terminated if copyrighted materials are shared over their networks. “AOL and its affiliated companies respect the intellectual property of others,” a representative said.

    Charter echoed the sentiment. “Sharing and copying music which is unauthorized is like stealing,” a Charter employee stated. A Qwest Communications representative indicated that accounts could be terminated in the event of copyright infringement, though further details were not offered.

    And what are the other ISPs saying about warning letters? Details on letters were more difficult to obtain, potentially because broader enforcement structures have not been implemented. Other aspects, including slowdowns of offending accounts, remain undecided. At best, this is part of an admitted work-in-progress by the RIAA, and any hope of ISP unanimity is probably too elusive to be true.


    Recording Industry vs The People

    Note: For a printer-ready, permanent link to this piece, updated periodically, use http://beckermanlegal.com/howriaa.htm. Unless otherwise indicated, all case documents may be found in Index of Litigation Documents.

    Last updated: January 11, 2008

    The RIAA lawsuits* pit a small number of very large recording companies against individuals who have paid for an internet access account. [* All referenced cases are available in "Index of Litigation Documents at http://info.riaalawsuits.us/documents.htm.]

    On the plaintiff's end, the owners of the underlying copyrights in the musical compositions are not involved in the case neither are many smaller record companies.

    As to the defendants, since no investigation is made to ascertain that the defendant is actually someone who engaged in peer to peer file sharing of copyrighted music without authorization, there are many defendants who have no idea why they are being sued and who did nothing even arguably violative of anyone's copyright. Defendants have included people who have never even used a computer, and many people who although they have used a computer, have never engaged in any peer to peer file sharing.

    Sometimes the cases are misleadingly referred to as cases against 'downloaders' in fact the RIAA knows nothing of any downloading when it commences suit, and in many instances no downloading ever took place.

    It is more accurate to refer to the cases as cases against persons who paid for internet access which the RIAA has reason to believe was used by some person -- possibly the defendant, possibly someone else -- to engage in peer to peer file sharing.

    At the core of the RIAA lawsuit process, is its initial lawsuit against a group of "John Does".

    A lawsuit is brought against a group of "John Does". The location of the lawsuit is where the corporate headquarters of the internet service provider (ISP) is located.

    All the RIAA knows, or believes it knows, about the people it is suing is that they are the people who paid for an internet access acount for a particular dynamic IP address.

    The "John Does" may live -- and usually do live -- hundreds or thousands of miles away from the City where the lawsuit is pending, and are not even aware that they have been sued.

    The RIAA is aware that most of the defendants do not live in the state, and are not subject to the jurisdiction of the Court, but bring the case anyway.

    They are also aware that under the Federal Rules of Civil Procedure there is no basis for joining all these defendants in a single lawsuit, but do indeed join them in one case, sometimes as many as several hundred in a single "litigation".

    The only "notice" the "John Does" get is a vague letter from their ISP, along with copies of an ex parte discovery order and a subpoena, indicating that an order has already been granted against them: i.e., instead of receiving notice that the RIAA is applying for an order, they instead are notified that they have already lost the motion, without ever even having known of its existence.

    They are not given copies of (i) the summons and complaint, (ii) the papers upon which the Court granted the ex parte discovery order, or (iii) the court rules needed to defend themselves, all of which are normally provided to defendants in federal lawsuits. Most recipients of this "notice" do not even realize that it means that there is a lawsuit against them. None of the recipients of the "notice" have any idea what they are being sued for, or what basis the Court had for granting the ex parte discovery order and for allowing the RIAA to obtain a subpoena.

    They are told they have a few days, or maybe a week or two, to make a motion to quash the subpoena. But if they were to talk to a lawyer they could not give the lawyer an iota of information as to what the case is about, what the basis for the subpoena is, or any other details that would permit a lawyer to make an informed decision as to whether a motion to quash the subpoena could, or could not, be made. What is more, the lawyer would have to be admitted to practice in the jurisdiction in which the ex parte case is pending, in order to do anything at all.

    In other words, except for lawyers who are knowledgeable about the RIAA tactics, no lawyer could possibly have any suggestions that would enable "John Doe" to fight back.

    So "John Doe" of course defaults. Then the John Doe "case" may drag on for months or even years, with the RIAA being the only party that has lawyers in court to talk to the judges and other judicial personnel.

    The RIAA -- without notice to the defendants -- makes a motion for an "ex parte" order permitting immediate discovery. ("Ex parte" means that one side has communicated to the Court without the knowledge of the other parties to the suit. It is very rarely permitted, since the American system of justice is premised upon an open system in which, whenever one side wants to communicate with the Court, it has to give prior notice to the other side, so that they too will have an opportunity to be heard.).

    The "ex parte" order would give the RIAA permission to take "immediate discovery" -- before the defendants have been served or given notice -- which authorizes the issuance of subpoenas to the ISP's asking for the names and addresses and other information about their subscribers, which is information that would otherwise be confidential.

    In the United States the courts have been routinely granting these "ex parte" orders, it appears. (Not so in other countries. Both Canada and the Netherlands have found the RIAA's investigation too flimsy to warrant the invasion of subscriber privacy. Indeed the Netherlands court questioned the investigation's legality.).

    We are aware of one instance in which a Magistrate Judge sua sponte rejected the application because there was no basis for its ex parte character. In Capital v. Does 1-16 in the District of New Mexico, Magistrate Judge Lorenzo F. Garcia directed the RIAA to confer with the University of New Mexico with a view towards establishing a procedure to give all affected parties prior notice and an opportunity to be heard in connection with the motion.

    And we are aware of another instance in which the application was rejected on its merits, based on the Court's observation that there was no legal basis for the discovery at all. In Interscope v. Does 1-7, an ex parte proceeding in the Eastern District of Virginia, in Newport News, Virginia, in a 5-page decision by Judge Walter D. Kelley, Jr., the Court denied the RIAA's ex parte motion for an order granting discovery into the identities of students at the College of William & Mary.

    Once an ex parte order is granted, the RIAA issues a subpoena to the ISP, and gets the subscriber's name and address.

    The RIAA then discontinues its "John Doe" "ex parte" case, and sues the defendant in his own name in the district where he or she lives.

    Thus, at the core of the whole process are:
    (1) the mass lawsuit against a large number of "John Does"
    (2) the "ex parte" order of discovery and
    (3) the subpoenas demanding the names and addresses of the "John Does".

    In what we suppose was a "testing of the waters", the RIAA went into federal court in Denver -- where its lawyers are based -- and made an ex parte application to have the Court dispense with the need for any court order at all the Magistrate to whom the application had been assigned declined to rule on that request, but did give the RIAA the ex parte discovery order it had sought.

    The RIAA's campaign against college students, announced in March, 2007, has led to a spate of similar ex parte proceedings against colleges and universities as ISP's.

    As noted above, the proceeding against College of William & Mary students in Virginia (Interscope v. Does 1-7) was dismissed in its entirety, the Judge observing that there was no legal basis for the RIAA's application, and the motion against University of New Mexico students, in Capitol v. Does 1-16, was denied on the ground that there was no lawful rationale for proceeding ex parte, rather than on notice to (a) the students, and (b) the university.

    As noted below, the 'college edition' of the RIAA's "ex parte" campaign is running into resistance, as motions to vacate the ex parte orders are proliferating. As of this writing we are aware of seven. "John Doe" students have launched attacks on the process in Boston in Arista v. Does 1-21, in Oklahoma in Arista v. Does 1-11, in Florida in Interscope v. Does 1-40, and in Tennessee in Virgin v. Does 1-33. A motion was made in Raleigh, North Carolina, by a "John Doe" who is a student at North Carolina State University, in LaFace v. Does 1-38.

    The first challenge of which we are aware that has been made by a college or university itself, rather than by the affected students, is Arista v. Does 1-17, where the Oregon Attorney General has filed a motion to quash the RIAA's subpoena directed to the University of Oregon, seeking student identities. The motion argues that the RIAA's identification evidence is flawed, so that the University could not respond to the subpoena without either violating privacy laws by divulging private information about students who are not shown to have committed any copyright infringement, or by conducting an elaborate investigation on the RIAA's behalf. The motion papers further argue that the discovery which plaintiffs seek is not obtainable at all under the procedures employed by the RIAA to obtain it, citing Interscope v. Does 1-7, 494 F. Supp. 2d 388 (E.D. Va. 2007). The Oregon case has taken a most uncomfortable turn for the RIAA. Upon receipt of the RIAA's opposition papers, attempting to show the Court what evidence the RIAA had, the Oregon AG asked the Court for discovery into what appeared to be the use of illegal investigators (MediaSentry).

    The first challenge of which we are aware mounted by a university's law school legal clinic is Arista v. Does 1-27, in Portland, Maine, targeting University of Maine students. 2 undergrads are represented there by student attorneys working under the supervision of a law school professor at the Cumberland Legal Aid Clinic, joining the 8 University of Maine students fighting the RIAA who are represented by a private law firm.

    The ex parte discovery process is being challenged in the Boston University case, in Boston, Massachusetts, where a motion to quash and vacate has been made in Arista v. Does 1-21, on the grounds of insufficiency of the evidentiary showing. Notably, one of the expert witnesses who submitted a declaration in support of the students' motion, attacking the RIAA's evidentiary averments, was no less than the Chairman of the university's Computer Science Department.

    In the Oklahoma State University case, Arista v. Does 1-11, the students -- represented by the same attorney who obtained a $68,000-plus attorneys fee award against the RIAA in Capitol v. Foster -- submitted a lengthy, detailed, scathing declaration of a computer security and forensics expert who challenged most of the key elements in the RIAA's entire 'investigative' strategy. The OSU students also pointed out to the Court that the RIAA's joinder of eleven (11) John Does in a single case was in direct violation of the November 2004 order in Fonovisa v. Does 1-41. The motion was denied in all respects.

    In Tampa, Florida, in Interscope v. Does 1-40, the students have sought both to dismiss the case for improper joinder under the Fonovisa v. Does 1-41 case and other caselaw, and to quash the subpoena based on the absence of any sufficient showing that ex parte relief was warranted.

    Even without a challenge, as noted above, a Magistrate Judge in New Mexico recognized that there was no basis for moving ex parte, rather than on notice, and sua sponte denied the RIAA's application, in Capital v. Does 1-16. Magistrate Judge Garcia directed the RIAA to confer with the University of Mexico's lawyers to work out a plan for giving prior notice to the students named as "John Does".

    The ISP ex parte process was unsuccessfully challenged in 3 cases in Manhattan federal court in early 2006: Atlantic v. Does 1-25 before Judge Swain, Motown v. Does 1-99 before Judge Buchwald, and Warner v. Does 1-149, before Judge Owen, in which "John Doe" defendants represented by Ray Beckerman and Ty Rogers brought motions to (a) vacate the ex parte discovery order on the ground that it had not been supported by competent evidence of a prima facie copyright infringment case, (b) quash the subpoena on that ground plus the additional ground that the complaint fails to state a claim for relief, and (c) sever and dismiss as to all defendants other than John Doe #1.

    The moving parties were from Iowa, Texas, Long Island, and North Carolina -- i.e. not one of the John Does was someone who could properly be sued in Manhattan federal court.

    All 3 motions were denied.

    The decisions are not appealable, since they are, theoretically, "interlocutory". However, it is the RIAA's usual practice to discontinue the "John Doe" cases, which means that there will never be a final judgment in the case, so the orders will never be brought to appellate scrutiny.

    The courts have recognized and agreed with the severance point, however, noting that it is improper to join the multiple John Does. See, e.g., Fonovisa v. Does 1-41, 04-CA-550 LY (W.D. Texas, Austin Div., 2004). The Fonovisa court ordered the RIAA to cease its practice of joining "John Does". The RIAA, however, has continued the practice. We are not aware of any contempt motions having been made yet.

    Prof. Charles Nesson of Harvard Law School has called upon Harvard University to resist the RIAA's "John Doe" subpoena process.

    A new ex parte "John Doe" litigation tactic -- this one involving neither an ISP nor a college -- has surfaced in Chicago, Illinois, and in Fresno, California. The Fresno case, SONY v. Does 1-10, which is an outgrowth of the discontinued Sacramento case, SONY v. Merchant, is being challenged by some of its apparent targets. The RIAA has indicated an interest in commencing ex parte discovery proceedings against the family of Rae J Schwartz, the Queens woman suffering from MS who is being sued in Brooklyn in Elektra v. Schwartz.

    As noted above in "College version of the procedure", the RIAA's "John Doe" discovery procedures are under attack both by the college students, and by at least one university.

    After getting the name and address of the person who paid for the internet access account, they then send him or her a letter demanding a "settlement".

    Their settlement is usually for $3750, non-negotiable, and contains numerous one-sided and unusual provisions, such as a representation that peer to peer file sharing of copyrighted music is a copyright infringement (a representation that is far too broad, undoubtedly there are 'sharing' behaviors with digital files, as there are with cd's, that are not copyright infringements). Even certain innocuous provisions, worded in a way to make them obligations of the defendant but not the RIAA, are deemed 'non-negotiable'. At bottom, the settlement is cold comfort to the defendant, because it does not speak for the other potential plaintiffs -- the owners of the copyrighted work, or the other record companies not represented by the RIAA litigation fund. That this omission is significant is illustrated by the new wave of copyright enforcement actions by music publishers against guitar tablature sites. There is nothing to prevent them from suing the individuals who have settled with the RIAA over the sound recording rights.

    The newest wrinkle in the RIAA's pre-litigation settlement strategy is to encourage "early settlements" prior to commencement of a litigation. The RIAA has even set up a web site where people can go to make these settlements. The RIAA has stated that the settlements will be for a $1000 or more less than otherwise. However the first such settlement we have heard of is for $3500, which is only $250 less. We have heard of $3000 settlements being "offered" to college students. The RIAA has opened this initiative on two fronts, (1) the ISP's, and (2) colleges and universities. Some colleges have cooperated, forwarding the RIAA letters to the students, some have not. It remains to be seen how the ISP's will react.

    If there is no settlement, the RIAA then commences suit against the named defendant in the district in which he or she resides. A boilerplate complaint is used which accuses the defendant of "downloading, distributing, and/or making available for distribution" a list of songs. There are actually 2 lists, a long list (exhibit B) and a short list (exhibit A). The long list is a 'screen shot' of a list of file names which were allegedly in a shared files folder. The short list is allegedly a list of song which the RIAA's investigators were able to download.

    No details as to how, when, or where the alleged "infringement" took place are pled.

    A preliminary procedural question is whether the cases are "related", and therefore should all be assigned to the same judge. In the Southern District of New York these cases against unrelated defendants are not treated as related in the Eastern District of New York they are treated as related, and every new case is assigned to the same District Judge/Magistrate Judge team. In Maverick v. Chowdhury and Elektra v. Torres the RIAA's designation of all its cases as related has been challenged by the defendants.

    If the defendant defaults, plaintiffs apply for, and apparently usually obtain, a default judgement for $750 per Exhibit A song -- a number which is over 1000 times the 70-cent amount for which the license to the song could have been purchased. This measure of damages has been challenged. (See Damages below.)

    Despite the disfavored nature of default judgments, the strong public policy against matters being decided on default, and the almost inevitability of a Court's vacating a default which has not been sitting there for an awful long time, the RIAA, consistent with its "scorched earth" policy, appears to have a practice of fighting strenuously over every default it gets. In Warner v. DeWitt, in Chicago, it procured a default judgment, and refused to stipulate to vacate the default. Defendant was forced to move to vacate, and the motion was granted.

    In Atlantic v. Boggs, in Corpus Christi, Texas, it likewise refused to waive defendant's default, and moved for a default judgment based on defendant's alleged "nonappearance". The Court, in denying the RIAA's motion, reminded the RIAA that the defendant had in fact appeared.

    In Elektra v. Santangelo II, despite the fact that they had already entered into a discovery schedule with defendant's lawyer, they obtained a default judgment. The Court then vacated the default judgment.

    In August, 2007, a default judgment application was denied in Interscope v. Rodriguez, in San Diego, California, in a decision which may have far-reaching implications, since Judge Rudi M. Brewster held that the RIAA's complaint -- which was identical to the complaint it has used in all of its cases -- fails to state a claim for relief, consisting of no more than "conclusory" "boilerplate" "speculation".

    A similar default judgment application was denied two months later in Atlantic v. Dangler, in Rochester, New York, this time on evidentiary grounds. Judge David G. Larimer concluded -- based upon the RIAA"s evidentiary submission (no doubt identical to the submissions in thousands of other default judgment applications) -- that the RIAA's evidence failed to substantiate either that the defendant was in fact the file-sharer, or that the file-sharer had actually downloaded or distributed any files.

    While it is of course preferable for a defendant to have legal representation in these matters, the economics often makes it impossible. We note that a pro se litigant in the Middle District of Alabama succeeded in staving off a summary judgment motion by the RIAA's legal team,which included the RIAA's top lawyer Richard Gabriel, in Motown v. Liggins (see Summary judgment below). In Motown v. DePietro, in Philadelphia, a pro se litigant defeated, for the time being, a summary judgment motion made by the RIAA. However, she may be facing a new discovery sanctions motion based on alleged spoliation of evidence.

    In Atlantic v. Howell, a pro se litigant lost a summary judgment motion. However, he thereafter made a motion for "reconsideration" and won, getting the Court's initial order vacated.

    The most important things a pro se litigant should know about are as follows: (1) there is a pro se clerk in every federal court house you should go in and see the pro se clerk for assistance in putting in your answer (2) from the very outset you must make it clear that you are demanding a jury trial, and do not let anyone talk you out of demanding a jury trial you must put a jury demand in your initial answer (3) the RIAA's attempt to get your hard drive is invasive and improper, and you should not let it happen without safeguards you should make a copy of the protecive order in SONY v. Arellanes and show it to the judge (4) the RIAA does not necessarily have the right to take depositions of your family members, and you should ask the judge for protection from that (5) if there are any children 18 or younger involved, or people otherwise unable to fend for themselves, you should ask the judge to appoint a guardian ad litem to protect them, as was done in Priority Records v. Brittany Chan and Elektra v. Schwartz, and you should try to get an order which provides that the RIAA has to pay for the guardian ad litem fees and (6) even though you are pro se you can hire a lawyer to give you advice (this is a lot less expensive than having a lawyer represent you in court).

    There have been challenges to the sufficiency of the boilerplate complaint in the form of motions to dismiss complaint. A combination dismissal/summary judgment motion was made in Elektra v. Dennis in Jackson, Mississippi, but the RIAA sought to discontinue the case after receiving the motion. More recently, a motion to dismiss was made in Warner v. Cassin in Westchester, which is, as of this writing, pending..

    In Elektra v. Santangelo, in Westchester, the motion was denied.

    An unusal result occurred in Interscope v. Duty, in Arizona. The judge denied the defendant's dismissal motion, not because he agreed with the RIAA, but because he didn't feel he understood the technology well enough to rule on the case.

    Then, in Waco, Texas, in Warner v. Payne, in Fonovisa v. Alvarez in Abilene, Texas, and in Maverick v. Goldshteyn in Brooklyn, New York, the judges followed the Interscope decision, declining to decide whether 'making available' is a copyright infringement, and upheld the complaint. The motion was also denied in Arista v. Greubel, in Fort Worth, Texas.

    In Elektra v. Barker in Manhattan, the motion was pending for 2 years, until it was finally decided on March 31, 2008. The RIAA had cited to the judge their victories in the other six (6) cases. In Barker, however, unlike in other cases, amicus curiae briefs had been submitted by the Electronic Frontier Foundation (EFF), the Computer & Communications Industry Association, and the Internet Industry Association, in support of Ms. Barker's motion, and by the MPAA in opposition to it. Additionally the American Association of Publishers requested permission to file such a brief, and the United States Department of Justice submitted a "Statement of Interest" taking issue with an argument made by the EFF. Briefing was completed in the spring of 2006, and oral argument was held by Judge Kenneth M. Karas on January 26, 2007. Judge Karas indicated at the oral argument that he would not "punt" on the "making available" argument, but would decide its validity. A transcript of the oral argument in Barker is available online.

    When it finally came down, the March 31, 2008, decision, rejected the RIAA's "making available" theory altogether, but nevertheless upheld the complaint, holding that the plaintiffs' pleading of actual distribution and actual downloading were sufficient. The Court also suggested a different theory -- one not hitherto suggested by the RIAA lawyers or by the evidence -- that the plaintiffs might use, of "offering to distribute for purposes of further distribution", and gave them leave to replead if they chose to do so. The decision is completely silent as to what plaintiffs would have to prove in order to establish such an "offer". In the opinion of William Patry, author of the Patry on Copyright treatise, (and in the opinion of the undersigned), Judge Karas erred in equating "publication" with "distribution". It appeared to the undersigned that Judge Karas erred in delving into the legislative history of the 1976 Act in order to determine what a distribution is, while the statute -- 17 USC 106(3) -- is unambiguous and required no such analysis.

    Meanwhile, the thunder which Elektra v. Barker might have caused was muffled by two (2) other important decisions likewise rejecting the RIAA's "making available" theory, Atlantic v. Brennan and Arista v. Does 1-21 also called London-Sire v. Doe 1.

    The 9-page Brennan decision came down 6 weeks earlier. It was not a determination of a dismissal motion, but a decision rejecting an application for default judgment. Judge Janet Bond Arterton of the District of Connecticut repudiated the "making available" theory,on the ground that there cannot be a violation of the distribution right without an actual distribution, and that one of the components of a distribution is an actual dissemination of copies.

    The third decision repudiating the RIAA's "making available" theory was the 52-page decision of Judge Nancy Gertner of the District of Massachusetts on a motion to quash subpoena, in Arista v. Does 1-21, which in dictum rejected the "making available" theory and noted that there cannot be a violation of the distribution right without an actual distribution, and that a mere "offer" to distribute is insufficient.

    In Interscope v. Rodriguez, noted above, in the context of an application for default judgment the Judge sua sponte dismissed the RIAA's standard complaint for failure to state a claim. Interestingly, when the RIAA filed an amended complaint six days later, the "making available" allegation was nowhere to be found.

    We are advised that new complaints being filed by the RIAA have jettisoned the "making available" altogether. If that is the case it is altogether possible that "making available" may die with a whimper rather than a bang.

    A motion to dismiss has been fully briefed in Warner v. Cassin in Westchester, and is awaiting argument or decision.

    In Elektra v. Perez, 2006 WL 3063493, in Oregon, a case which wasn't on our radar until we tripped across the October, 2006, decision on Westlaw, the judge denied a motion to dismiss, and appears to have resolved the "making available" argument in the RIAA's favor, but the procedural context was unusual: it was in response to the RIAA's motion to dismiss its own case. The court in Motown v. DePietro, in a footnote, likewise ruled that "making available" is actionable, but DePietro is a pro se case, and a reading of the footnote -- which relies on dictum from the 2001 Ninth Circuit decision in Napster -- suggests that the issue was not fully briefed to the Judge. Similarly in Atlantic v. Howell, another pro se case, the judge held that 'making available' is actionable, but likely without having received full briefing on the state of the law. The pro se defendant moved for reconsideration, reconsideration was granted, and the order vacated. As of this writing, a new summary judgment motion is being briefed.

    In Atlantic v. Serrano, a motion to dismiss complaint was denied. Interestingly, this was the same Court (Southern District of California) that dismissed the RIAA's complaint for failure to state a claim in Interscope v. Rodriguez. The Serrano decision, like the Santangelo decision, made no reference to the "making available" theory at all.

    On at least one occasion, the RIAA sought to amend its boilerplate complaint to add a secondary liability theory against a parent, in Capitol v. Foster. Although no dismissal motion was ever made (the RIAA had discontinued the case when Ms. Foster indicated an intention to make a summary judgment motion) -- the Court did, in its decisions granting defendant's motion for attorneys fees, find the RIAA's theory to have been "marginal" and "untested", and its motives in bringing it "questionable".

    Many affirmative defenses, too numerous to itemize here, have been interposed in these cases.

    Although the RIAA has been nothing if not militant in aggressively attacking counterclaims, even innocuous ones such as claims for a declaratory judgment of noninfringement or claims for attorneys fees under the Copyright Act (see Counterclaims below), it has not, to our knowledge, aggressively attacked affirmative defenses.

    The only case of which we are aware that has involved litigation over affirmative defenses is UMG v. Lindor. In Lindor, in the context of a motion for leave to amend the answer, the Court upheld both the legal sufficiency, and the possible merit factually, of Ms. Lindor's 9th affirmative defense, that the RIAA's $750-per-song-file damages theory was unconstitutional. 2006 WL 3335048. More recently the RIAA successfully moved to strike Ms. Lindor's 4th affirmative defense, of copyright misuse, predicated on the competitors' copyright-pooling agreement under which they present a united front in enforcement of their copyrights. Judge Trager dismissed that defense for illegal insufficiency.

    The RIAA has a practice of making motions routinely, in all cases, to dismiss any and all counterclaims which are interposed if it cannot find a substantive basis for much a motion, it will seek to strike it on technical grounds, such as redundancy. Since motions to strike for redundancy are disfavored in modern federal practice, these motions have met with mixed success.

    A great flurry of litigation is going on now over counterclaims, since every new contested case we have seen interposes counterclaims and the RIAA is reflexively moving now to dismiss each and every one of them.

    COUNTERCLAIMS FOR ATTORNEYS FEES

    If a defendant counterclaims for attorneys fees, the RIAA will move to dismiss such a counterclaim, arguing that it is redundant since a successful defendant does not need to have interposed a counterclaim in order to collect attorneys fees. It has made a motion to dismiss a counterclaim for attorneys fees in a Georgia case, Priority v. Beers, and plans to make motions to strike the counterclaim in Elektra v. Schwartz, Elektra v. Torres, and Maverick v. Chowdhury, all in Brooklyn. A similar motion by the RIAA in Oregon in 2005, in Elektra v. Perez, was denied. The RIAA has not been able to cite any legal authority for its argument.

    COUNTERCLAIMS FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT

    The RIAA also moves to strike counterclaims for a declaratory judgment of non-infringement, arguing that they are redundant because a judgment dismissing the plaintiffs' case would imply non-infringement. Such motions were denied in UMG v. Del Cid in Tampa, Florida, and in Capitol v. Foster and Warner v. Stubbs in Oklahoma, tabled until after discovery in Atlantic v. Shutovsky in Manhattan, and granted in Interscope v. Duty in Arizona, Atlantic v. DeMassi in Houston, Texas, Interscope v. Kimmel in Binghamton, New York, and Lava v. Amurao in White Plains, New York. The Electronic Frontier Foundation had submitted an amicus curiae brief, in opposition to the RIAA's motion, in Amurao.

    The issue was also before the Court in SONY v. Crain in Beaumont, Texas, where the defendant -- an elderly Hurricane Rita survivor who never engaged in any file sharing, and who is defended by Legal Aid -- interposed a counterclaim for a declaratory judgment, and the RIAA moved to strike it. Ms. Crain's attorneys have pointed out to the judge that (a) the RIAA's similar motion, made in Capitol v. Foster, was denied, (b) the RIAA has no legal authority for its position, and (c) it is necessary to have the counterclaim because of the RIAA's practice of discontinuing the cases before trial, thereby depriving a defendant of the right to be vindicated on the merits. The RIAA ultimately withdrew its monetary claims against defendant, before motions were determined.

    Similar motions are being litigated in Atlantic v. Boggs in Corpus Christi, Texas, and Arista v. Finkelstein in Brooklyn, New York, and elsewhere.

    The decision in Warner v. Stubbs, in Oklahoma, is pivotal, and should be cited by practitioners representing defendants on this issue. The defendant there interposed a declaratory judgment counterclaim, specifically reciting in the counterclaim that a reason for its necessity was plaintiffs' tendency to bring frivolous case and then withdraw them leaving defendant with no opportunity for a day in court. As if on cue, the RIAA moved to dismiss its own case and the counterclaim. The court dismissed the RIAA's case, but declined to dismiss the counterclaim, since it had an independent jurisdictional basis. All practitioners representing innocent defendants should take heed of Stubbs and be careful to interpose a counterclaim for declaratory judgment fashioned along the lines of the Stubbs counterclaim. However, in a rather strange postscript, the RIAA then unilaterally 'covenanted not to sue' Ms. Stubbs, and the Judge treated that as removing the "case or controversy" element from the case, and dismissed the counterclaim at that point.

    In Atlantic v. Andersen, in Oregon, a number of counterclaims for tortious conduct under Oregon law, including violations of computer privacy, and Oregon RICO, have been interposed, and their sufficiency is presently being litigated. Similar counterclaims for trespass, invasion of privacy, etc., are being litigated in Priority v. Beer in Columbus, Georgia. In Elektra v. Santangelo II, in White Plains, New York, a counterclaim has been interposed for breach of the duty to warn, which the RIAA has of course moved to dismiss.

    In Lava v. Amurao, in White Plains, NY, Atlantic v. Shutovsky in Manhattan, Atlantic v. DeMassi in Houston, Texas, UMG v. Del Cid in Tampa, Florida, and Interscope v. Kimmel in Binghamton, New York, "copyright misuse" was interposed as a counterclaim, alleging that the plaintiff record companies are "competitors in the business of recorded music. [and] are a cartel acting collusively in violation of the antitrust laws and public policy, by litigating and settling all cases similar to this one together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in an identical manner and through common lawyers. Such actions represent an attempt. to secure for themselves rights far exceeding those provided by copyright laws. Such acts constitute misuse of copyrights, and lead to a forfeiture of the exclusive rights. ". The RIAA's motions to dismiss the copyright misuse counterclaims were denied in Amurao and Shutovsky, and granted in DeMassi, Kimmel, and Del Cid. Written decisions were handed down in Kimmel and Del Cid, but not in the others.

    In Del Cid the Court denied so much of the RIAA's motion as sought to dismiss other counterclaims, such as claims for deceptive business practices, trespass to personal property, violation of the Computer Fraud & Abuse Act, and conspiracy to commit extortion, employ unlicensed investigators, and make unauthorized inspection of defendant's computer's contents. The Court rejected the RIAA's Noerr Pennington argument across the board, since N-P is inapplicable to "sham litigations".

    A new case has arisen regarding the same counterclaims, plus a new one (abuse of process), Atlantic v. Boyer. The case is in the same court, and has been assigned to the same judge, so a motion to dismiss the counterclaims is unlikely.

    In Maverick v. Chowdhury and Elektra v. Torres, both in Brooklyn, copyright misuse counterclaims, and an antitrust claim -- based upon collusive settlement negotiation practices -- have been interposed, and the RIAA has moved to dismiss them.

    In South Carolina, in Atlantic v. Njuguna, the RIAA has moved to dismiss Ms. Njuguna's counterclaims for (a) negligence and (b) deceptive trade practices under South Carolina's Unfair Trade Practices Act, along with her counterclaim for declaratory judgment of noninfringement.

    An expansive copyright misuse counterclaim was pleaded in a Tennessee case, where the defendant, a 33 year old Army Sergeant, alleged that the RIAA deliberately padded its court filings with material calculated to "shame" defendant into accepting the RIAA's settlement demand.

    A number of counterclaims are now being interposed based on the RIAA's use of unlicensed investigators. See, e.g., SONY v. Crain in Beaumont, TX, Priority v. Beer in Columbus, GA, and UMG v. Del Cid above.

    The RIAA has been raising the Noerr Pennington doctrine in its motions to dismiss counterclaims. The only decision of which we are aware which even mentioned the RIAA's assertion of that defense was UMG v. Del Cid, above, where the Court explicitly rejected the defense as being inapplicable to "sham ligitation".

    As soon as it is able to do so, in a litigation, the RIAA routinely serves a number of pretrial discovery requests, calling for examination of the hard drive and numerous other items. If their first round of discovery does not turn up any evidence of copyright infringement, they will seek to depose family members, and others who may have had access to defendant's internet access account. If the hard drive yields no evidence of copyright infringement they will claim that there has been spoliation, or that the defendant switched hard drives.

    In some cases defendants' practitioners have resisted some of the RIAA discovery demands, demanding protective orders against the RIAA's invasive and often humiliating demands, and in some cases demanding discovery of their own. (See, e.g. UMG . Heard, SONY v. Arellanes, UMG v. Lindor, Elektra v. Torres.)

    There have been interesting discovery rulings in Elektra v. Santangelo in White Plains, Atlantic v. Andersen in Oregon, Motown v. Nelson in Michigan, and in UMG v. Lindor.

    SELECTIVE PRETRIAL DISCOVERY MATTERS WHICH MAY BE HELPFUL TO DEFENDANTS' ATTORNEYS:

    PLAINTIFF'S LOST PROFITS
    *Any defendant who has interposed the defense of the unconstitutionality of the RIAA's damages theory, based on the disproportionality of the damages sought in relation to the record companies' actual damages, needs to get discovery into (a) the lost revenues per authorized download and (b) the expenses that would have been incurred in connection with authorized downloads, including the (i) publisher's, (ii) artist's, and (iii) producer's royalties. In UMG v. Lindor Magistrate Judge Levy ordered discovery on both the revenues and the expenses. The revenues were provided under a stipulation. As to the expense information, where defendant was forced to make a motion to compel, the judge ruled that such discovery was "reasonably calculated to lead to the discovery of admissible evidence" and ordered the RIAA to produce information about the expenses, and authorized defendant to take telephone depositions of the plaintiffs.

    DAMAGE COMPUTATIONS
    *Plaintiffs will try to avoid producing discovery on their damages, and will offer to stipulate to be precluded from proving their actual damages at trial. Do NOT fall into that trap and accept any such stipulation. Without discovery into plaintiff's actual damages, a defendant's lawyer will be hard pressed to place before a jury, in admissible form, evidence to establish the disproportionality of the RIAA's damages theory. The importance of this issue was underscored by the Capitol v. Thomas trial where the RIAA sought $750 to $150,000 per song file, and were awarded $9250, or 23,000 times the actual damage, per file. The defendant's lawyer, not having had discovery on this issue, would have had no way to show the jurors the fact that the actual lost profit per song file was in the neighborhood of 40 cents (as compared to $9250).

    DEFENDANT'S HARD DRIVE
    *Procedure for hard drive examination: mirror image made, turned over to mutually acceptable computer forensic expert, who prepares 2 verified bit images, and creates an MD5 or equivalent hash code. Expert keeps 1 mirror image in escrow, gives other to defendant's lawyer for a 'privilege review'. Defendant's lawyer provides plaintiffs' lawyer with a "privilege log". After privilege questions resolved, escrowed image -- with privileged files deleted -- turned over to RIAA lawyers, to be held for 'lawyers' eyes only'. (SONY v. Arellanes)

    NON-PARTY'S HARD DRIVE
    *Plaintiffs held not entitled to compel defendant's son, who did not reside with defendant, to produce his desktop computer, but may take limited deposition of the son as to whether he had any portable devices which he'd brought to his mother's house at the time of the screen shot. (UMG v. Lindor).
    *Plaintiffs held by Magistrate to be entitled to order directing alternate manner of service for production of hard drives of a nephew, where their process server was unable to effect personal service. Over the objection of defendant, Magistrate Levy stated that "plaintiffs' claims are reasonably calculated to lead to the discovery of admissible evidence relating to the claims and defenses in this action", but did not specify in what respect. (UMG v. Lindor)

    RECORD COMPANY COLLUSION/COPYRIGHT MISUSE
    *The judge in Atlantic v. Shutovsky held that defendant is entitled to discovery on this issue. The Magistrate in UMG v. Lindor held that the defendant is not entitled to discovery on this issue. Ms. Lindor has asked the Magistrate to revisit that issue.

    DEPOSITIONS-CONFIDENTIALITY OF TRANSCRIPTS
    *Record companies can't have a blanket advance confidentiality order for their deposition transcripts, but will have to move for a protective order as to sections they want to keep confidential. (UMG v. Lindor).

    DEPOSITIONS-CONDUCT OF DEPOSITIONS
    *If plaintiff being deposed by video conference, plaintiff's lawyer can't be in room with witness but must also appear by video conference or in alternative RIAA must reimburse defendant's lawyer's travel expenses up to $500. (UMG v. Lindor).

    RECORD COMPANY USE OF P2P
    *On July 25, 2006, at a conference in UMG v. Lindor, Magistrate Robert M. Levy ordered the record companies to produce evidence, if any, relating to their employees' use of p2p file sharing to send music files to radio stations. The order was not reduced to writing, and subsequently -- when Ms. Lindor sought to enforce the order -- the Magistrate accepted the RIAA's response that the companies themselves had no policy of using p2p file sharing, and did not require them to disclose their employees' use of p2p. No explanation for the change was given other than that it was based upon the RIAA's opposition papers and upon the Magistrate's prior rulings.(UMG v. Lindor)

    CONFIDENTIALITY OF MEDIASENTRY AGREEMENTS
    *RIAA argued attorney client privilege, work product privilege, and confidentiality, in protective order motion in UMG v. Lindor. The Magistrate made no findings on either privilege or on confidentiality, but ruled that the agreements -- which were being sought for crossexamination of MediaSentry -- were not relevant and granted the protective order. Defendant has filed objections to the Magistrate's order, seeking a ruling from District Judge Trager.

    WHOLESALE PRICES OF DOWNLOADS
    *Defendant is entitled to "all relevant documents" and a deposition relating to the record companies' pricing of legal downloads, in connection with her affirmative defense challenging the constitutionality of the RIAA's damages theory. (UMG v. Lindor).

    COPYRIGHT DOCUMENTS.
    *RIAA ordered to produce 'chain of title' documents for any copyrights as to which the name of the plaintiff is not the name on the copyright registration, or as to which there has ever been any dispute of copyright ownership. (UMG v. Lindor)

    DEFENDANT'S DISCOVERY INTO HARD DRIVE ANALYSIS.
    *Defendant can take pretrial discovery into the plaintiffs' analysis of the hard drive, including contention interrogatories and depositions. (UMG v. Lindor).

    PRECLUSION AS TO SONG FILES
    *RIAA precluded from using any song files not produced in response to document request (UMG v. Lindor).

    PRECLUSION AS TO DAMAGES
    *In view of failure to set forth actual damages in response to interrogatory, plaintiffs precluded from introducing evidence of damages. (UMG v. Lindor). However, this preclusion is of little value to defendant's lawyers who want to establish the disproportionality of the RIAA's statutory damages theory ($750 to $150,000 per song file) to plaintiffs' actual damages (probably in the neighborhood of 35 cents per file or less).

    DISCOVERY CUTOFF
    *Where RIAA hadn't produced expert witness report, discovery cutoff extended to 60 days after RIAA turns over expert's report to defendant. (UMG v. Lindor).

    EXPERT WITNESSES
    *In Atlantic v. Andersen, where the plaintiffs' hard drive expert had examined a mirror image, the Court ordered the RIAA to provide a detailed expert witnesss report regarding the hard drive inspection, including the expert's identity, qualifications, methodology, investigation chronology, notes, records, raw data, and informed opinion and conclusions of the investigation.
    *In UMG v. Lindor, in an attempt to stave off discovery into its communications and agreements with MediaSentry, the RIAA argued that MediaSentry's investigator Tom Mizzone is not an expert but merely a paid fact witness, and that what he did to "investigate" did not require any expertise, but was what any other Kazaa user could have done. They said that at trial he would not testify to any conclusions about infringement, but would merely recite what he did, and that Dr. Doug Jacobson would be the only expert, and the one to connect the dots. Ms. Lindor's attorney disputes that argument. See, e.g., USA v. Ganier, 468 F.3d 920, 925-926 (6th Cir. Nov. 15, 2006). Meanwhile, Ms. Lindor's attorneys conducted a deposition of Dr. Jacobson on February 23, 2007. The transcript is available online. Likewise the transcript of the November 30th oral argument, at which the RIAA took the position that MediaSentry could not testify to any opinions or conclusions, is available online. Ms. Lindor has now moved for in limine exclusion of Dr. Jacobson's testimony at trial, based upon his failure to satisfy the Daubert "reliability" factors.

    ATTORNEYS FEE REASONABLENESS
    In Capitol v. Foster, where the Court has ruled that defendant is entitled to her reasonable attorneys fees, the RIAA made the unusual request -- which the Court granted -- to be permitted discovery into the "reasonableness" of the defendant's attorneys fees. In doing so, however, they opened the door for the defendant to request plaintiffs' attorneys' billing records, which request the Court granted as well. The Court set a strict 60-day time limit on the "reasonableness" discovery, and declined several attempts by the RIAA to extend it. The Court granted the RIAA's request to keep its legal bills confidential, although it is unclear what legal basis, if any, there was for the request. An evidentiary hearing was conducted.

    RECORDS OF INTERNET SERVICE PROVIDER
    *In UMG v. Lindor the RIAA served an extensive subpoena duces tecum on Verizon, the ISP in question, some 4 years after its first subpoena to Verizon. The new subpoena is quite broad and, in addition to logs and other ISP records, asks for copies of the defendant's emails, a request which in some cases would raise grave privacy concerns.

    The RIAA has not tried to prove its actual damages, and has been seeking $750 per song in statutory damages.

    This damages theory is being challenged on constitutional grounds in UMG v. Lindor, Maverick v. Goldshteyn, and Elektra v. Schwartz, all in Brooklyn federal court, as well as in Arista v. Greubel and SONY v. Crain in Texas, Virgin v. Morgan in Pensacola, Florida, Interscope v. Korb in Charleston, South Carolina, and others. In Lindor, in the context of a motion for leave to amend the answer, Judge Trager ruled that Marie Lindor's assertion of the defense of unconstitutionality was not frivolous, and noted that while the RIAA could point to no legal authority contrary to its validity, Ms. Lindor had cited both caselaw and law review articles supporting its viability. For an excellent 2004 law review article on the subject, see "Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement" By J. Cam Barker, 83 Texas L. Rev. 525 (2004)[Copyright Texas Law Review Association 2004][Reprinted with permission]*. Since the Lindor decision, every new answer we have seen filed interposes this defense.

    In Virgin v. Morgan the defendant is also challenging the RIAA's damages theory on statutory grounds, based on Section 504(c)(2) of the Copyright Act, which permits the statutory damages to be reduced from $750 to $200 in certain instances of innocent infringement. But see BMG v. Gonzalez, where the Seventh Circuit held that defendant could not avail herself of the 504(c)(2) defense because of the copyright notices on plaintiffs' CD's, even though she hadn't seen the CD's, since she "readily could have learned, had she inquired, that the music was under copyright". (Ed. note: The illogic of Gonzalez cries out for a comment here. I feel that Gonzalez contradicts the plain language, as well as the obvious intent, of the copyright Act, and is inconsistent with the whole principle of copyright notice which permeates the Act. Obviously anyone could "readily" learn, by inquiring, as to the copyright of anything, since copyright registrations are publicly filed in Washington, DC, but the law imposes no such duty. But the decision is from a court of appeals, and therefore has to be taken seriously by practitioners, even those outside of the Seventh Circuit. Hopefully the Seventh Circuit will come to realize its error, and/or other circuit courts will conclude otherwise, and/or the Supreme Court will catch up to this issue.)

    In some cases where the RIAA discontinued the case, the defendant has sought attorneys fees. In Priority Records v. Chan and Elektra v. Perez the defendant's motion was denied. In Capitol Records v. Foster and Atlantic v. Andersen, the motion was granted. Ms. Foster was awarded $68,685.23. The initial amount sought was approximately $55,000, which quickly rose to $114,000 as a result of a frenetic round of litigation activity after the Court had indicated Ms. Foster would be awarded her reasonably attorneys fees. In an unusual move, the judge (a) allowed discovery on the reasonableness issue, and (b) conducted an actual full-day evidentiary hearing on the issue as well. The Court denied a "reconsideration" motion the RIAA had made, in a decision which reads like a treatise on the importance of attorneys fee awards to prevailing defendants in copyright infringement cases, and which reiterated the "untested and marginal" nature of the RIAA's claim, found the RIAA's motives in pressing it "questionable", labeled one of the RIAA's arguments "disingenuous", and found its statement of the facts to be "not true". The Court, in reducing the fee award, gave, among others, the following reasons: (a) the bills totalled the time for all activities in the day, rather than breaking out the time for each task, (b) defendant's attorney spent a great deal of time reviewing plaintiffs' attorneys billing records but did not make effective use of them at the hearing, and (c) the level of activity rose dramatically after the Court had determined that plaintiffs would be required to pay defendant's reasonable attorneys fees.

    In Atlantic v. Andersen, the Magistrate Judge has issued a 15-page report granting Ms. Andersen's motion for attorneys fees. The amount of the fees has not yet been set. The decision stated that "these plaintiffs. should be deterred".

    In Priority Records v. Candy Chan, a Michigan case, the RIAA initially refused to withdraw the case against a mother who clearly had not herself engaged in file sharing, but then changed its mind and did discontinue the case when faced with the mother's motion for summary judgment and attorneys fees.

    A scenario similar to that in Priority v. Candy Chan occurred in Capitol v. Foster, in Oklahoma, where the RIAA withdrew only when faced with the mother's motion for summary judgment and attorneys fees. The judge let the RIAA drop its case, but held that the 'voluntary' withdrawal did not make the RIAA immune from legal fees, and indicated that he might award the mother her attorneys fees. Ultimately he did, awarding Ms. Foster $68,685.23. Ms. Foster's attorneys fee motion was supported by an amicus curiae brief submitted by the American Civil Liberties Union, the Electronic Frontier Foundation, the American Association of Law Libraries, Public Citizen, and the ACLU Foundation of Oklahoma. In their brief the 'friends of the court' told the judge that "the RIAA has wrought havoc in the lives of many innocent Americans" and that an award of attorneys fees is necessary to deter such conduct in the future.

    In another Oklahoma City case, Warner v. Stubbs, the defendant -- represented by the same lawyer who represented Debbie Foster -- filed an answer and counterclaim saying that the RIAA's tactics amounted to extortion. The very next day the RIAA moved to withdraw its case. The motion to dismiss without prejudice was granted. Immediately thereafter the RIAA tendered a unilateral "covenant not to sue" in an attempt to stave off a declaratory judgment -- on Ms. Stubbs's counterclaim -- of noninfringement. The judge agreed with the RIAA that the "covenant" was a sufficient basis for dismissing the counterclaim.

    In Virgin Records v. Tammie Marson, the RIAA voluntarily dismissed its case when confronted with the impossibility of determining who used defendant's computer, and in Warner v. Maravilla it voluntarily dismissed -- after defendant had made a dismissal motion -- upon learning that the ISP had given them the wrong name. Both Marson and Maravilla were in the Central District of California.

    A Georgia case, Atlantic v. Zuleta, in which defendant had a wireless router, the IP address was connected to a wireless router, and the defendant's roommate's first name was the same as the screen name, the case was discontinued "without prejudice".

    Elektra v. Wilke, in Chicago, was withdrawn after Mr. Wilke made a summary judgment motion. See Summary Judgment below. A second, similar discontinuance took place 6 months later in Chicago in BMG v. Thao.

    The RIAA withdrew one of the most highly publicized of the RIAA v. Consumer cases, Elektra v. Santangelo, after two years of litigation, as it moved on to pursue two of Ms. Santangelo's children. The RIAA would have liked the dismissal to be "without prejudice", so that it would not be liable for attorneys fees. (See Capitol v. Foster July 13, 2006, Order). Ms. Santangelo, of course, did not agree with that approach neither did Judge McMahon. She ruled that the RIAA must proceed to trial unless a stipulation of discontinuance with prejudice is filed by April 1st. The parties then stipulated to dismiss with prejudice, leaving open the question of Ms. Santangelo's entitlement to attorneys fees.

    Similarly, in Atlantic v. Andersen, after pursuing Tanya Andersen for about 2 years, the RIAA stipulated to dismiss its claims with prejudice, leaving open only Ms. Andersen's claim for attorneys fees, her various counterclaims, and her action against the RIAA for malicious prosecution.

    Voluntary discontinuances have taken place in Michigan in Warner v. Pidgeon and in Washington in Interscope v. Leadbetter. In Leadbetter the RIAA tried to discontinue against the defendant but add her fiance as a defendant the Court denied permission to add the fiance as a defendant, dismissed the case in its entirety, and indicated that it would consider the imposition of attorneys fees against the RIAA in a separate motion. Ms. Leadbetter has brought on a motion for attorneys fees.

    After receiving a lengthy letter from defendant's counsel in SONY v. Merchant, a Sacramento, California, case, describing the paucity of the RIAA's evidence and threatening a malicious prosecution lawsuit, the RIAA within hours filed a notice of voluntary dismissal.

    In Elektra v. Dennis, in Jackson, MS, after receiving a motion to dismiss and/or for summary judgment, the RIAA cross moved to dismiss without prejudice.

    In Priority Records v. Brittany Chan, the litigation against Candy Chan's 14 year old daughter (See Voluntary discontinuance above), who allegedly engaged in file sharing when she was 13, the judge had held that the RIAA could not sue a child without getting a guardian ad litem appointed. The RIAA made a motion to have a guardian ad litem appointed so that its case might proceed against the minor, but the Judge rejected the motion because it did not ensure payment of the guardian ad litem's fees. The judge thereafter dismissed the case when the RIAA ignored his instruction to submit a plan that would ensure payment of the guardian ad litem's fees.

    Continuing its policy of bringing lawsuits against children, on November 1, 2006, the RIAA commenced suit against two of Patti Santangelo's children, one of whom is only 16 years old. Elektra v. Santangelo II. Although a discovery schedule and an answer and counterclaims have been filed, it remains to be seen whether these -- and the commencement of the underlying lawsuit -- are enforceable or are nullities in view of the absence of a guardian ad litem.

    It sought to compel a face-to-face deposition of a 10-year-old child in Atlantic v. Andersen. The Judge, however, limited them to a telephonic or videoconference deposition instead. In UMG v. Hightower, it served a deposition subpoena on a high school student, returnable on 24 hours notice. The subpoena was served on the defendant at his high school, and was returnable at 9:00 a.m. of a school day. Shortly thereafter, the RIAA abruptly dropped the case altogether.

    In Atlantic v. Andersen, Elektra v. Schwartz, and other cases, the RIAA has brought suit against disabled people, even knowing that they are disabled. In both Schwartz and Andersen the disabled defendants are people who have never downloaded songs or engaged in file sharing at all. In Elektra v. Schwartz, the defendant has severe Multiple Sclerosis, and gets around in an electric scooter. Her lawyer specifically asked the RIAA to drop the case it declined. Thereafter a motion for appointment of a guardian ad litem was requested. Magistrate Levy granted Ms. Schwartz's motion, and appointed a guardian ad litem.

    In Warner v. Paladuk in Michigan the RIAA sued a totally disabled stroke victim who was living in Florida at the time of the alleged infringement in Michigan.

    In a Michigan case, Warner v. Scantlebury, after learning that the defendant died, the RIAA asked the Court for a 60-day stay to allow the family to "grieve", after which it said it intends to take depositions of the decedent's children. We have received unconfirmed reports that after a firestorm of controversy erupted over the internet, the RIAA now intends to withdraw the case against the deceased.

    In an Illinois case where the defendant admitted to downloading 30 songs without authorization, the plaintiffs' summary judgment motion was granted. BMG v. Gonzalez. In an Alabama case where the defendant did not admit to personally having copied or distributed plaintiffs' song files, the RIAA's summary judgment motion was denied. Motown v. Liggins. (Interestingly, Mr. Liggins appeared pro se.)

    In Interscope v. Leadbetter, the RIAA's summary judgment motion against the original defendant's son is presently being briefed, as is the son's cross-motion for summary judgment dismissing the case.

    As to defendant's summary judgment motions in general, we do not yet know how they will fare in the courts.

    In August, 2006, a motion for summary judgment was made by the defendant, in Chicago, in Warner v. Wilke. The plaintiffs' initial response was to make a motion for expedited pretrial discovery, indicating to the Judge that, without it, they do not have enough evidence with which to oppose Mr. Wilke's motion. Thereafter, however, they dropped the case altogether, "with prejudice" (meaning they cannot sue again).

    In Brooklyn, where all RIAA v. Consumer cases are assumed to be "related" and assigned to Judge Trager, the judge appears to have a policy of discouraging defendants' summary judgment motions until after the close of discovery. In February, 2006, Marie Lindor wrote a letter to Judge Trager asking for a premotion conference in connection with her planned summary judgment motion in UMG v. Lindor the judge, however, referred the case to the Magistrate for pretrial discovery prior to summary judgment motion practice. After submitting to a deposition, and to an inspection of the hard drive of the computer in her apartment, after answering all of the RIAA's written discovery demands, and after arranging for her adult son and daughter to testify voluntarily at their depositions, she again wrote to the Judge renewing her request for a summary judgment pre-motion conference and for a stay of discovery during the pendency of the motion. Judge Trager again said she couldn't make the motion, and wanted her to wait until after the completion of discovery. Judge Trager reacted similarly to Rae J Schwartz's request for summary judgment in Elektra v. Schwartz, issuing a formal order indicating that he thought such a motion to be premature.

    We are anxious to hear the results of defendant's summary judgments in other districts, where summary judgment motions are permitted to be made in the ordinary course.

    The dismissal motion in Elektra v. Dennis in Mississippi was accompanied by an affidavit of the defendant and alternatively sought summary judgment. The RIAA withdrew its case, however.

    Both sides' summary judgment motions were denied in the Philadelphia pro se case, Motown v. DePietro.

    We are aware of one instance in which a Rule 68 offer of judgment was made, Capitol v. Frye, in North Carolina. There the RIAA accepted an offer of judgment for $300 plus a limited injunction..

    Settlements during the course of a litigation are not dissimilar to those prior to litigation. The RIAA seeks a larger amount, typically $4500 plus $375 court costs, nonnegotiable, and submits a form of settlement which is likewise nonnegotiable. It is difficult to obtain information on this process since most settlement discussions are confidential.

    The judgment in Motown v. Lisberg, a California case, is an example of the RIAA's non-negotiable "settlement".

    In Capitol v. Foster, due to a waiver of confidentiality, there is some insight available into the process. There the RIAA was willing to make a payment of attorneys fees to Ms. Foster, but in an amount that was far less than she had incurred. The parties never reached agreement on the amount, and the matter of attorneys fees is being considered by the judge. One might speculate that there may have been settlements in which the RIAA withdrew its case and paid the defendant attorneys fees, but the RIAA would no doubt have insisted upon confidentiality of such a settlement, and so we would never know about it.

    We are aware of the RIAA's claim that it accepts reduced amounts in "hardship" cases, however we have not confirmed the existence of any instance of them ever having accepted a reduced amount.

    Cases which are in litigation are under the aegis of a Magistrate Judge or District Court Judge, so it is always possible that the Court will become involved in the settlement process. In Maverick v. Goldshteyn, the Magistrate Judge, at the request of Ms. Goldshteyn, scheduled a settlement conference, at which the principals were required to attend, in person, and with settlement authority. However, at the actual conference, a single attorney representing the RIAA was accepted by the judge as an appropriate "principal" of all of the plaintiffs. A stipulation and order of settlement has been entered, and is available online.

    In Brooklyn, where all the cases are being treated as "related" and are being supervised by a single magistrate, the RIAA has sought to initiate a mass settlement conference. (See Elektra v. Torres, Elektra v. Schwartz, and Maverick v. Chowdhury.

    The RIAA has taken the position, in UMG v. Lindor, that MediaSentry's investigator is not an expert witness. Defendant disagreed with that contention. See USA v. Ganier, 468 F.3d 920, 925-926 (6th Cir. Nov. 15, 2006). The Magistrate, in his order, never ruled on that question one way or the other.

    According to the RIAA, its only expert witness is a Dr. Doug Jacobson, an associate professor at Iowa State University, who is also the founder and a co-owner of Palisade Systems, a company that sells antipiracy software. The RIAA indicated, at oral argument on November 30, 2006, that MediaSentry will not testify to any opinions or conclusions about copyright infringement, but will only testify as to the steps it took, and that it will fall upon Dr. Jacobson to testify as to what MediaSentry's investigation actually meant.

    Dr. Jacobson appears to be a dual-purpose expert, claiming to be qualified in both forensic and internet issues. His deposition was taken in UMG v. Lindor on February 23, 2007, and the transcript and exhibits are available online, as is the transcript of the November 30th argument.

    Ms. Lindor's attorneys have made a motion to exclude Dr. Jacobson's testimony, based upon its inadmissibility under the Daubert case and Fed. R. Evid. 702.

    The only case of which we are aware that has gone to trial is Virgin v. Thomas (renamed Capitol v. Thomas), in Duluth, Minnesota, which was tried October 2-4, 2007. However, a new trial has been ordered.

    In Thomas, the RIAA sought $750 to $150,000 per song file. After being instructed -- at the RIAA's request -- that plaintiffs had no obligation to prove any actual downloading or uploading, the jury found that defendant had wilfully infringed 24 recordings, and awarded $9250 each, for a total verdict of $222,000.

    A motion was made to set aside the verdict on the ground that the damages were unconstitutionally excessive. On May 15, 2008, the Court sua sponte indicated that it had independently discovered an alternative reason for setting the verdict aside, namely that its aforementioned jury instruction, adopting the RIAA's 'making available' theory, was a "manifest error of law". On September 24, 2008, the Court set the verdict aside, and ordered a new trial on that ground. However, the Court also implored Congress to ensure that large verdicts of that nature could not recur against non-commercial users, such as Ms. Thomas.

    We have posted a few documents relating to the Thomas case. Many additional documents relating to the trial may be found through PACER. The case is in the District of Minnesota, and the file number is Civ. No. 06-1497 (MJD/RLE).

    A bit of guidance as to the standards for trial has come down in UMG v. Lindor, in connection with a preclusion motion, where the Court held that "[a]t trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff’s copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs."

    Likewise, the denial of summary judgment in the abovementioned Motown v. Liggins suggests that the plaintiff would have to prove actual copying or actual "distribution".

    In both cases, it is not clear whether the judges have at this point considered that (a) there are certain types of file "sharing" which would not constitute copyright infringement, or (b) "distribution" is a defined term under the Copyright Act, one which requires a sale, transfer of ownership, lending, lease, or rental, of a phonorecord or other copy, to "the public".

    In Oregon, after the RIAA withdrew it claims against Tanya Andersen with prejudice, Ms.Andersen brought a malicious prosecution suit against the RIAA, the record company plaintiffs, Safenet (MediaSentry), and Settlement Support Center, LLC. She thereafter amended her complaint to convert it into a class action. The RIAA has moved to dismiss.

    Commentary and discussion:

    ( All litigation documents referenced above are available online and may be accessed through http://info.riaalawsuits.us, "Index of Litigation Documents" at Recording Industry vs. The People (http://recordingindustryvspeople.blogspot.com)), or Table of Cases.

    Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


    Legal Jujitsu in a File-Sharing Copyright Case

    Charles Nesson, right, and Joel Tenenbaum are challenging a method record companies use to stop piracy. (Photo: Josh Reynolds/Associated Press)

    It has long been a mantra of the free culture movement that creativity in the digital age wants to be “read– write” rather than “read-only,” that the artist and amateur alike should be able to talk back to the culture around them.

    Now, to see if that theory applies to the law.

    In a bit of legal jujitsu, Charles Nesson, a Harvard law professor and founder of the Berkman Center for Internet and Society, is attempting to take the primary strategy used by the record companies and others to prevent illegal downloading of copyrighted material — the threat of lengthy and costly lawsuits — and prove that the underlying law — the Digital Theft Deterrence Act — is itself unconstitutional.

    Record companies belonging to the Recording Industry Association of America are suing Joel Tenenbaum, a 24-year-old graduate student at Boston University, for downloading at least seven songs and making more than 800 others available over the peer-to-peer file sharing system Kazaa in 2004. The companies are seeking $12,000 in damages, and have refused Mr. Tenenbaum’s offer to pay $500 to settle the matter. As the Associated Press reported on Monday, once the case goes to trial, the dollar figures could become more punishing:

    The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a willful violation. That means Tenenbaum could be forced to pay $1 million if it is determined that his alleged actions were willful.

    The music industry group isn’t conceding any ground to Nesson and Tenenbaum. The R.I.A.A. has said in court documents that its efforts to enforce the copyright law is protected under the First Amendment right to petition the courts for redress of grievances. Tenenbaum also failed, the music group noted, to notify the U.S. Attorney General that that he wanted to contest the law’s constitutional status.

    The case is not about the constitutionality of copyright law, as in another important recent case, Eldred v. Ashcroft. Rather, it concerns an aspect of the act that allows a private group — copyright holders — to enforce a criminal statue by way of civil suits. Mr. Nesson’s goal in making this argument is to ”turn the courts away from allowing themselves to be used like a low-grade collection agency.”

    𠇌ongress has exceeded its power by placing the executive power to prosecute an essentially criminal statute in private hands,” Mr. Nesson argued in a motion[pdf] filed in late October asking that the case be allowed to go forward. Trying the case, the theory goes, could short-circuit this and other attempts by record companies to instill fear in would-be copyright infringers through huge damage claims. Or, as Mr. Nesson writes on his blog:

    Our case is not only against R.I.A.A., it is against the court and court system that is exerting this power. It is against the statutory law, the law the legislature has passed, captured as it was and still is by special interest. Observe that the disproportion between actual damage caused by Joel to the copyright holder and the damage mandated by the legislature to be given the copyright holder is in inverse proportion to the lobbying power of the copyright industry in the legislature compared to the lobbying power of Joel and the teenagers like him who are meant to be frightened by the punitive damages being imposed.


    An earlier version of this post referred incorrectly to the R.I.A.A.’s role in the case the plaintiffs suing Mr. Tenenbaum are record companies belonging to the association, not the association itself. -Ed.

    Comments are no longer being accepted.

    i had always marveled at how the RIAA was taking the role of a police force purely through intimidation tactics which it was able to use thanks to a compliant congress.
    part of the problem is the generational gap between the older (much older) congressmen who will never understand the cultural shift that has happened in regards to the concept of ownership of cultural artifacts and it’s compliance to record industry lobbyists.
    the record industry is slowly learning to remake their business model, the only problem is that the major music labels are not part of it.
    can you imagine if typewriter companies had lobbied against word processor programs in the early 80’s so they could keep their outdated business model alive? where would we be now?

    The damages allowed by the Digital Theft Deterrence Act are ridiculously disproportionate and excessively punitive.

    To all who have the courage to fight this monstrosity, my hat is off you. I wish you the best of luck.

    Is there a fund to which one may contribute for this fight?

    If Nesson wins this one, the precedent will apply to many other laws where substantially the same phenomena have occurred.

    All hail the berkman ctr. Finally they have decided to officially destroy the RIAA’s attack plans. I cannot wait for them to fight this case. It might finally force the major labels to abondon suing their customers, and, whether they believe it or not, re-invigorate music purchasing. Once the companies realize that it is COMPLETELY impractical and harmful to their own businesses to attempt to prevent online piracy with fear and copyright law, they can start capitalizing on the strenghts, reinvest in A&R, and start to build BRAND LOYALTY again. I just keep shaking my head at the fact, and asking why the major label corporations could be so damn stupid to think that the same public who they intimidate and SUE would EVER want to buy ANYTHING from them. Ever heard of BRAND LOYALTY? When a company wants your business, they should not try to sue you. If these majors were smart, they𠆝 stop going after online piracy, make a real stand against physical piracy (especially overseas), and offer consumers as many options as possible as part of an OPEN system. That puts the focus back on A&R, so each company/label is competing for quality of music not just price, and also would allow for comptetition against iTunes. But for now, the majors are so closed minded that they think its a good idea to spend upwards of $56 MILLION/year in fees to fund the RIAA. Remind me again what they got for their money? Oh yeah, that’s right: a bunch of overturned lawsuits, angry customers, loss of influence on popular culture, and a complete loss of relevence in the digital age. Why are they still in business? Oh wait, that’s right Warner’s stock just hit a new record LOW of 2.40/share. And guess what? YOU DESERVED IT WARNER, YOU KNEW WHAT WAS HAPPENING, AND YOU BROUGHT IT ON YOURSELF.

    The tactics used by the RIAA is nothing but coercion and extortion, made legal by unconstitutional laws in Congress. They sued some poor mother over 20 songs and got an outrageous settlement that she would never be able to pay. They send threatening letters to college students demanding $3,500 or they will sue. How in the world is this organization permitted to sue people through the courts when it’s not a civil matter? Answer: money and lobbyists.

    > Rather, it concerns an aspect of the act that allows a private group — copyright holders — to enforce a criminal statue by way of civil suits.

    While I think the fines are excessive, it isn’t made entirely clear why that aspect should be a question. If Adam punches Bob in the face, Adam can be prosecuted for battery or he can be sued for Bob’s medical bills or both. The options are similar if Adam steals Bob’s car…

    Maybe the operative question is whether or not the damages the RIAA claims are actual or punitive… but in the case of (presumably) mandatory punitive damages, one might ask if this actually falls under “unusual punishment”. If we assert that stealing a car is worse than stealing an MP3, why are there no such proportionate mandatory damages for Bob’s car?

    Any legal experts in the house?

    The Supreme Court has ruled that, as a guide line, in civil suits punitive damages must be no more than 10x actual damages, otherwise they are unconstitutional (I can’t recall the exact constitutional theory applied). If that’s the case, it would seem that the penalties under the DTDA should likewise be unconstitutional — they are utterly disporportionate to any harm suffered by the record labels and artists involved.

    “The Recording Industry Association of America is suing Joel Tenenbaum…”

    This is false and should be corrected. The RIAA did not sue Tenenbaum individual recording companies did. The plaintiffs are, as Mr. Goodman would know if he bothered to review the actual papers in this lawsuit, Sony BMG Music Entertainment Warner Bros. Records Inc. Atlantic Recording Corp. Arista Records LLC and UMG Recordings, Inc. The RIAA plays a coordinating role, but it it not a party to this or other similar lawsuits.

    This is not just an innocent “mistake.” Rather, it’s evidence of bias, and a sign that Mr. Goodman has bought into the “RIAA versus the people” nonsense of the 𠇏ree culture” movement. Of course, lawsuits against alleged infringers look less legitimate if they are described (incorrectly) as being brought by a faceless trade association, rather than by the actual copyright owners.

    There is a long history of giving private plaintiffs a cause of action to take on the roll of a kind of quasi-private attorney general. Antitrust law is one obvious example that springs to mind. Private antitrust litigation was viewed as an additional benefit to complement the enforcement by the government. There are many other situations, like the Foreign Corrupt Practices Act where private actors with their own economic self-interests can play a material roll in assisting the government in enforcing the law. Regardless of what you think of RIAA and their tactics, as a matter of law, this doesn’t look like a very promising strategy. Giving people a private right to vindicate public interests (and protection of the IP system is undoubtedly a legitimate public interest) is not particularly unusual. Although I haven’t seen the papers, I𠆝 expect this kid to lose, and in a very big and ugly way.

    Stupid laws are still laws, and everything you don’t much like isn’t unconstitutional. Best of luck to the prof., it looks like he’ll need it.

    I haven’t bought new music in years because of RIAA – not that the corporate crap that passes for “music” nowadays is worth it.

    Best of luck with the lawsuit.

    Isn’t the practice of having private 𠇊ttorneys-general” to prosecute, through qui tam actions, the civil (but essentially criminal) statutes of the US that the government does not have the resources to prosecute themselves something that is established at this point. This seems to fly in the face of the Center’s argument that 𠇌ongress has exceeded its power by placing the executive power to prosecute an essentially criminal statute in private hands.”

    There are several issues here that the Supreme Court erally should address:

    First, yes, the amounts are far beyond what would be calculated as real damage. As punitive damages, they surely fall in the category of 𠇌ruel and unusual” punishment. They are also unrealist – as pointed out, people who cause real physical personal injury do not usually find themselves liable for a million dollars, especially if they cannot pay.

    Second, the process itself is questionable. Why should the federal government chase down offenders in what is arguably a minor civil matter? There are better ways to waste the taxpayers money. Wall Street and Detroit would be happy for that level of cooperation from their bought-and-paid-for congresscritters.

    Third, is the blatant abuse of the legal system. Using the threat of legal action by big business -“we will bury you in legal bills, guilty or not” – to extort money from those who cannot afford to defend themselves is akin to bullies stealing lunch money. The legal system should be a settlement mechanism, not a means to threaten.

    Oh, wait, this is also what trial lawyers have been doing to big business for the last few decades too. Maybe, just maybe, the system needs to be fixed. In Canada, the losing party almost always pays the winning party’s legal costs. Lawsuits are much fewer and farther between, and espcially, less frivolous.

    Finally, congress should stop being a paid front for big business and do its own proper job. The reaction to “the law doesn’t work” should not be “Let’s jack up the penalties” but “let’s fix the law so it does work”.

    John “This is not just an innocent ‘mistake&apos” is clearly a shill for the RIAA.
    If it were the individual artists that were suing then I might have more sympathy. The big label record companies happily screwed both the artists (except the giant stars) and the customers for decades. They look like a desperate GM now.

    Congressmen would understand better if the Internet generation writes to them and votes in election, which they have began to do in force.

    The same internet generation (and the lawyers among them) can flood the court with amicus briefs supporting the defendant and protesting the abuses perpetrated by concentrated capital, such as the interests RIAA represents.

    The Internet significantly reduces the need for political representation, for corporate political leverage or for corporate concentration of capital because the internet in principle allows direct democracy and direct involvement in any cause by unlimited numbers of people, who will self-organize into powerful networks and diffuse as quickly.

    We live in a new world and the arts should be the first to adjust. RIAA’s campaign is the agony of the old system.

    That doesn’t really solve the underlying fact that, at the end of the day, it’s still copyright infringement. Let’s say we take this law off the books (and it’s really an abomination). He’s still civilly liable for violation of copyright. If we reduce the statutory rewards to something approximating like what the patent system uses, which is treble damages, you’re still talking about a decent chunk of change.

    So if the copyright holders, or the association thereof, sue in a civil capacity for their own rights, I don’t see what changes.

    If the RIAA would just realize that their future business model will not include distribution on plastic disks then it could move forward and accept some sort of digital delivery system. The RIAA will be the next GM if it doesn’t wake up.

    As with many things legal, the action here looks a bit more complicated. Apparently Defendant is also trying to join the RIAA in the action so it’s not entirely wrong to say that the organization is (may be?) a party to the action.
    As for the merits, hard to say, but after having looked over the Defendant’s motion it does look as if eventually someone will rule that the damages violate due process because of their disproportionate nature. If only the Supreme Court had known!

    I applaud Professor Nesson in his work! I look forward to reading the resulting opinions!

    Hm, the prof’s tortured logic doesn’t bode well for a strong argument either: “…the disproportion between actual damage𠉪nd the damage mandated by the legislature…is in inverse proportion to the lobbying power of the copyright industry𠉬ompared to the lobbying power of Joel…” Hoo-hah? Lemme get my spreadsheet…. that makes royalty calculations seem simple!

    The music companies are engaging in extortion.
    Using abusive legal tactics to maintain a virtual monopoly is like using a sledgehammer to swat a fly.
    The strategy: sue a few college students around the country, and the rest will fall into line. So what if a few kids get smacked with outrageous fines – Their parents will pay.
    There is no lobby for kids in a congress complicit in passing a copyright act “protecting” the poor, multi-billion dollar music industry.
    Funny thing is, people who download music, also buy other music not available online. Eventually they leave school, get jobs and won’t spend time to get a few songs – they will buy the CD.
    Strangle the goose and the golden eggs stop coming too.

    Ever since the RIAA won its case against Napster and all that is illegal file sharing became targets for legal or civil proceedings, I have been utterly baffled at how the obvious parry how been so pathetically missed. Those who are outraged by the lawsuits and the new limitations on their ability to share files need to simply approach the problem with their wallets.

    Perhaps a better way to put it would be to say that they should close their wallets to the labels that have supported the work of the RIAA and rather open them ONLY to those labels who see the value in openly and fairly sharing files. Quite whining about how the industry exploits your petty addictions to their wares, and put your money where your mouths are.

    Given the current economic environment, now could be a great time to quit buying their music and their movies. As long as you critics feed the beast, it will roar when it’s hungry. As long as you guys keep stepping up and buying from them, it merely reinforces their position and keeps that outdated system on life-support. I am one of you critics, but I’ve withheld my money in the belief that a good, old-fashioned boycott will help the industry get in tune with what this consumer wants. They’ve figured it out: “money talks.”

    What I’ve found interesting in all the discussion and controversy over peer-to-peer sharing of copywritten materials is the assumption by the plaintiffs that they are being grievously harmed though lost sales.

    While I know that sales of some digital media are way down from what they once were, I wonder how much of that is due to the introduction of new and innovative legitimate distribution methods (such as iTunes) over brick and mortar stores. On can now purchase and download only the tracks one wants rather than having to purchase the entire CD (How many records or CDs did you ever buy where only the one tract that was getting air play was worthwhile and the rest of the album was a stinker? I can think of many!)

    I also find laughable the estimated losses from individual file sharers. Does anyone really believe that a conjectured X number of downloads represent that number of lost sales? Surely for many, the choice is not between illegal peer-to-peer downloading or to purchase legally, but between downloading or finding some other way to obtain a copy at nominal cost such as burn a copy of a friend’s copy or a copy borrowed from the library or to capture a stream from an Internet source. I, for one, only rarely purchased a CD before peer-to-peer sharing became possible, and I only rarely purchase CDs now.

    The recording studios, like the movie studios in the 60s and 70s, have forgotten what business they are in – the studios were (and are) in the entertainment business not the movie business. The recording studios are in the music business, not the record/CD business. They should adapt and embrace technological and market changes, not fight them.

    “Is there a fund to which one may contribute for this fight?”


    Peer-to-Peer File Sharing and Copyright Law

    Dartmouth College is devoted to creating, discovering, and sharing knowledge and information. Dartmouth is also committed to taking reasonable steps to avoid misuse of its computer network, including use of the computer network to violate the Copyright Law of the United States. All students, faculty, and staff should have a basic understanding of the Copyright Law and appropriate use of Dartmouth's technology resources.

    Campus computer networks are often used to reproduce and distribute copyrighted music, movies, television shows, pictures, and software through the use of peer-to-peer (P2P) networks. P2P file sharing applications allow a computer to connect to a P2P network, and once connected, make it possible to download and share files with other users on the network. P2P networking has been around for many years, but file sharing applications such as LimeWire, KaZaA and BitTorrent have made it easy to trade files with people around the world. Beginning in April 2003 when members of the Recording Industry Association of America filed civil suits against students at Michigan Tech, Princeton University, and Rensselaer Polytechnic Institute seeking substantial damages for copyright infringement, there has been an increasing level of attention to violators of copyright laws. (Those cases were quickly settled, with each of the student defendants agreeing to pay more than $12,000 in damages.) Since then, there has been increasing pressure on universities to take action against copyright violations, especially those attributable to P2P. When Dartmouth College receives a complaint from a copyright holder, we notify the individual involved and pass along any information received from the copyright holder to that individual. We do not supply any information to the copyright holder about the individual involved unless a valid subpoena is presented.

    Here are the answers to some frequently asked questions about the application of the Copyright Law to peer-to-peer file sharing:

    Are peer-to-peer file-sharing systems illegal?

    P2P technologies have many legitimate uses. For this reason, Dartmouth does not ban "P2P" programs from its network. We believe, however, that the primary use of P2P technology has been copying of commercial music and video files, without the copyright holder's permission, for personal enjoyment. It is that type of activity that generally violates the Copyright Law.

    What kinds of activities are probable violations of the Copyright Law?

    Any of the following activities, if done without permission of the copyright owner:

    • Copying and sharing images, music, movies, television shows or other copyrighted material through the use of P2P technology.
    • Purchasing a CD or DVD and then making copies for others.
    • Posting or plagiarizing copyrighted material on your personal Web space.
    • Downloading anything of which you don't already own a copy (software, MP3s, movies, television shows, etc.).

    Copyright law applies to a wide variety of works, and covers much more than is listed above. If you're in doubt about a particular work, assume that it is copyrighted!

    What does Dartmouth policy say about copyright infringement?

    The Dartmouth College Copyright Policy states: "The holders of copyright possess the exclusive right to authorize reproduction of, distribution of copies or phono records of, public performance of, public display of, and preparation of derivative works based on copyrighted works. . . . All faculty, students, and employees must adhere to this policy."

    Dartmouth's Information Technology Policy states: "Dartmouth College expects each member of the community to use Dartmouth's information technology resources, including connections to resources external to Dartmouth that are made possible by Dartmouth's information technology resources, responsibly, ethically, and in compliance with the Policy, relevant laws, and all contractual obligations to third parties. The use of Dartmouth's information technology resources is a privilege. If a member of the community fails to comply with this Policy or relevant laws and contractual obligations, that member's privilege to access and use Dartmouth's information technology resources may be revoked. . "

    Are MP3s illegal?

    • Some MP3s can be legally obtained through online subscription services (see the FAQ below) or from sites officially permitted by the copyright holders to offer certain MP3 downloads. Some are copyright free. Most MP3s don't fall into either category.
    • MP3 files are completely legal, but it's illegal to make or distribute MP3s of music recordings that you don't already own, or which you haven't obtained permission to reproduce from the copyright owner.
    • In almost all cases, sharing MP3s over the campus network is also illegal.
    • United States copyright law allows you to create MP3s only for your personal use and only of songs to which you already have rights. You can make MP3s only of songs for which you already own the CD or tape. And personal use means for you alone - you can't make copies and give or sell them to other people.

    How could I get caught if I violate Copyright Law or Dartmouth policy?

    • Dartmouth system administrators do not routinely police our network for illegal activity, but they must respond to formal legal complaints they receive. Also, if your computer begins to consume excessive network resources, Computing Services will investigate your network activities in order to keep the network operating smoothly.
    • Organizations like the Recording Industry Association of America (RIAA) or BayTSP (representing movie and television studios among others) frequently police file-sharing programs for copyrighted material belonging to the artists/studios they represent.
    • Some students are under the impression that their activity on the Internet is largely anonymous or untraceable, but this is untrue. In fact, almost all your activity on the Internet is logged on many of the computer systems you use, and while these logs usually are not inspected, they certainly can be used to confirm or implicate you in illegal activity.

    How does Dartmouth get notified about violations and are all notifications the same?

    Dartmouth receives two different types of notices, "take down" and "preservation". In an average month, Dartmouth receives about 50 notices. A take down notice is a communication that asks the College to notify an individual to stop sharing copyrighted materials. Computing Services forwards these notices to the individuals whose computers are involved and asks them to discontinue the infringing activity. Most people comply promptly.

    A preservation notice alerts the College to a forthcoming subpoena that may be served. The subpoena asks the College to provide identifying information about a user of our network who has infringed copyrighted materials. Sometimes, following the preservation notice and prior to the subpoena, an early settlement letter is sent to the College from the copyright holder asking that it be forwarded to the individual infringing on the copyright. This allows the individual to work with the copyright holder to resolve the dispute before going through the legal system.

    What will happen if I get caught?

    Violation of the Copyright Law can have serious consequences:

    1. College Disciplinary Action: Copyright infringement can subject a student to disciplinary action under Standards VI and VII of the Standards of Conduct for Students, since violation of law or College policy is grounds for discipline. First offenses will result in a notice from Computing Services to cease illegal activity. Failure to comply or further incidents of infringement may result in referral to the Dean's Office and loss of network access for the infringing computer. Sanctions may include suspension of network access (meaning loss of e-mail and course web site access) and formal college disciplinary action. These outcomes might prove harmful to your future job prospects or academic pursuits, since many employers and graduate and professional schools require you to disclose College disciplinary action.
    2. Civil Liability: Persons found to have infringed may be held liable for substantial damages and attorneys fees. The law entitles a plaintiff to seek statutory damages of $150,000 for each act of willful infringement. In the cases filed by the RIAA against students at Princeton, RPI, and Michigan Tech, the recording industry sued for damages of $150,000 for each recording infringed.
    3. Criminal Liability: Copyright infringement also carries criminal penalties under the federal No Electronic Theft Act. Depending on the number and value of the products exchanged, penalties for a first offense may be as high as three years in prison and a fine of $250,000. Dartmouth is not the police however, Dartmouth will cooperate with the law enforcement agencies when required.

    But if everyone breaks the rules, how can you punish just one person?

    Just because the government, or a company that sues you, or the Committee on Standards, cannot administer punishments equally does not mean that they cannot administer them at all. As with speeding tickets, "everyone else was doing it" will not satisfy an enforcement officer or provide an excuse for illegal behavior.

    Pleading ignorance of these rules or the applicable laws is also equally useless in an enforcement situation, so educate yourself before you decide to break the law.

    You should recognize that violating the Copyright Law or Dartmouth's policies concerning copyright are significant risks that you may regret.

    How can I obtain digital music and movie files legally?

    Some music, movies and television shows can be legally obtained through online subscription services or from sites officially permitted by the copyright holders to offer certain downloads. Apple's iTunes store or Netflix are examples of these services.

    What is fair use?

    You may have heard of "fair use." It is discussed in the Copyright Act. Fair use is a concept that allows use of limited portions of a copyrighted work, without the permission of the copyright owner, for purposes such as scholarship, research, and criticism. Fair use does not mean that if you think it's fair that you should be able to use a work, it's okay. Rather, whether a particular use of copyrighted material is a fair use must be judged according to the four criteria in the Copyright Act:

    1. Purpose and character of the use (why do you want to use it?).
    2. Nature of the copyrighted work (what kind of work is it?).
    3. Amount and substantially used (how much do you want to copy?).
    4. Effect on the potential market for or value of the work (will your copying contribute to decreasing the value or demand for the work?).

    For example, it's fine to quote from a book when writing about it, but it's not okay to reproduce the entire book.

    Unfortunately, the four factors listed above do not always provide very clear guidance. Fair use must be determined on a case-by-case basis. Fair use can be tricky to define see the "Other Sources" link on Dartmouth's Copyright web site for additional information.


    Revisiting Don’t Download This Song by Weird Al

    The early-to-mid 2000s were a strange time for copyright in the United States. Napster had been launched in June 1999 and, though it only survived until July 2001, it forever changed the piracy landscape.

    After its closure, the void left behind was quickly filled by a variety of file sharing services. Apps such as LimeWire and KaZaA stepped into the gap and new technologies such as BitTorrent and not only provided a more-difficult to shutter infrastructure, but also expanded capabilities. Where Napster was limited to music files, these services could trade any type of content.

    Rightsholders responded to this in a myriad of ways. However, one of the most heavily-publicized and controversial was when, in 2003, the Recording Industry Association of America (RIAA) began targeting individual file sharers for litigation. The actual impact of the campaign, which lasted for five years and saw some 30,000 lawsuits, is still hotly debated but it did make for interesting conversation and comedy.

    One of those to take a jab at the campaign, and overall piracy climate of the time, was the parody master “Weird Al” Yankovic. In August 2006, he released the album Straight Outta Lynwood, which featured the song Don’t Download This Song.

    Now, more than 13 years later, we’re going to take a look back at it and see how well the song holds up and whether it’s a relic of a time gone by or if it is still relevant today.

    Weird Al’s History with File Sharing

    As an artist who was popular before the rise of Napster and has remained as such ever since, Weird Al was definitely impacted by the rise of file sharing and subsequent changes to the music industry.

    However, he’s largely kept his personal views on file sharing out of the spotlight, using his trademark humor to deflect any questions. For example, in a May 2000 fan Q&A, he was asked about Napster and responded:

    For Al, the bigger problem with file sharing wasn’t necessarily lost revenue, but rather, mistaken identity. Since Napster and other file sharing services at the time relied on users to identify songs, many parodies were attributed to him that were not his.

    This was frustrating for two reasons. First, many fans were worried that they had missed one or more of his CDs. Second, many of the songs attributed to him were extremely vulgar or otherwise contained material that went against his image.

    Still, at a time where musicians were taking sides on file sharing, Al largely stayed on the sidelines. That is, until August 2006 when he released Straight Outta Lynwood and the track Don’t Download This Song.

    Don’t Download This Song

    Don’t Download This Song is not a parody of an individual song, but rather, is a style parody of charity songs, which were very popular in 80s. This included tracks such as We Are the World and Hands Across America.

    We Are the World was directly parodied by Camp Chaos in 2000 with the song Sue All the World, which was also about the fight against file sharing (specifically Napster).

    The easiest way to break down this song is to look at it verse by verse, which is how we’re going to do it.

    The first verse is a parody of many of the anti-piracy PSAs that were common at the time. It tells the listener that they may be tempted to download MP3s illegally but, if they do, the shame “will leave a permanent scar” and, if you continue:

    Tonally, the verse is a great parody of those PSAs, which were often extremely heavy-handed in their approach. Interestingly though the four services that are listed in the verse, Morpheus, Grokster, LimeWire and KaZaA, are all long gone (at least in the incarnation they were around in 2006). Not only were they shuttered through legal action, but that style of file sharing has dwindled.

    It’s also worth noting that the verse makes reference to “international copyright law” even though no such thing exists. Copyright law is national in scope though there are countless treaties that attempt to harmonize it more or less globally.

    The second verse is much shorter and is a warning against messing with the “R I double A”.

    Obviously CD-Rs have since fallen completely out of favor for music (or any) piracy. If anything, they were already waning in popularity in 2006.

    Nonetheless, the lines about suing a grandmother and a seven-year-old girl ring true to those who remember those years. The first is a likely reference to Gertrude Walton, who was sued in February 2005 months after her death. The young girl is likely a reference to Kylee Anderson, whose mother was sued that same year. Though Anderson was ten at the time, she was seven when the alleged infringement too place.

    Though both cases were quickly dropped, the headlines and the publicity generated by these cases likely played a role in the RIAA backing off this strategy just a few years later.

    The third and final verse is the probably the most problematic. It makes the argument that file sharing doesn’t hurt anyone other than wealthy artists.

    This argument was actually very common during this time (and is still common today). It is punctuated by the fact that many of the artists that were the most vocal about file sharing were also some of the most successful and wealthy including Metallica, Madonna, Dr. Dre and Elton John to name a few.

    However, the past decade has not been kind to that perception. First, it’s become clear that file sharing (and the industry shifts it helped created) harmed musicians at all levels. In 2012, there were an estimated 45% fewer musicians working than in 2002. Second, though streaming has led to a rebound in the music industry, it’s still barely half what it was in its 1999 peak.

    While it’s true that those who initially led the charge against file sharing were not sympathetic, they weren’t the ones hurt the most. After all, every musician named in Don’t Download This Song and featured in Sue All the World are still at least somewhat big names.

    The chorus of the song, which is also used for the outro, tells the listener to “Go and buy the CD, like you know that you should.” It’s interesting in hindsight because the iTunes store launched in April 2003. By the time the song was released, there were legal ways to purchase digital tracks.

    It seems, for most music listeners, the record store is not where they belong. It’s on (legal) streaming services. In fact, vinyl sales are on track to earn more than CDs this year.

    How Well Does it Hold Up?

    Comedy is often one of the quickest types of entertainment to age. Comedy about technology is guaranteed to age even faster. Though most of Weird Al’s music seems pretty timeless, this song feels dated just 13 years after its release.

    When it comes to music piracy, BitTorrent and file sharing services have been replaced by stream rippers (after originally being replaced by cyberlockers). When it comes to legal music, CDs have been replaced by streaming services (after originally being replaced by digital purchases).

    However, it’s pretty easy to point out how technology and internet culture have moved forward in 13 years. The song was never going to hold up in that regard. That was never the goal.

    The goal, instead, was to lampoon the heavy-handed tactics used by the RIAA and others during that time period. It did so by parodying both the style of music commonly for PSAs around that time and much of the language.

    With that in mind, it was very spot on.

    Though I consider myself a strong supporter of creators’ rights, the tactics and approach of the RIAA did little to help the situation. It did nothing to discourage piracy, it turned public opinion against musicians and it hurt the credibility of the RIAA as an organization.

    That makes it good that the RIAA has learned from its mistakes. It, like most organizations, focus not on targeting end users (either with litigation or marketing) but on targeting those operating pirate sites and services. The meme-worthy Piracy, It’s a Crime PSA is from 2005, Don’t Copy That Floppy 2, which was by the software industry, is from 2009. The past decade has seen very little in terms of a direct-to-consumer campaigns (legal or otherwise), by the RIAA or anyone else.

    To that end, Don’t Download This Song may be a small part of the reason. The RIAA’s message was being openly mocked from within the industry it represents. It’s hard to get more significant bad press than that.

    So, while the song doesn’t hold up, it’s not because it wasn’t a great biting commentary of the time it was written, it’s because the world around it changed. The approach the song is lampooning has been dead for a decade and, though it’s far from forgotten, it’s a rapidly-fading memory.

    It’s a beautiful time capsule of a very strange time and one that, thankfully, has changed a great deal.

    Bottom Line

    One interesting thing about the song is that we still don’t know where Weird Al actually sits on the issue of file sharing and piracy. Though he makes it pretty clear that he’s opposed to the RIAA’s tactics from this era, that’s not the same as being pro-piracy.

    However, this shouldn’t be a shock. Weird Al has worked to keep his politics and personal beliefs out of his music as much as possible. His goal with this song was to parody what was a cultural touchstone at the time, even if not all of his fans saw it as such.