It is hard to imagine a less sympathetic plaintiff than the RIAA. Multi billion dollar record labels suing single moms and children over songs they didn’t create doesn’t exactly drive jurors to tears of pity.
However, as unpopular and roundly condemned as the RIAA campaign against file sharing has become, it addresses several issues of copyright that could directly affect bloggers and other smaller rightsholders who operate on the Web.
In short, no matter how you feel about the RIAA, its tactics or file sharing itself, it is an important series of cases to watch. The balance that the courts find in this matter could directly affect how everyone, including the little guys, protect their works on the Web.
In July of 2000, the RIAA scored a major legal victory against file sharing when they secured an injunction against the file sharing service Napster, effectively closing the first household name in file sharing.
But that wouldn’t be the end of the RIAA’s file sharing battle, but rather, only the beginning. New file sharing networks soon cropped up, These networks were more decentralized and resisted such “one hit” legal tactics. Others opened up in foreign countries where pursuing action was much more difficult, if not outright impossible, and ISPs were less inclined to cooperate.
Even cases against some of the companies involved in the building of these networks, such as the Grokster ruling in 2005, failed to stop the downloading of RIAA-copyrighted music. With no central server to take out, the file sharers could continue to swap music even after the companies that created the technology had shuttered their doors.
So, in 2003 the decision was made by the RIAA to chance focus their tactics and they filed suit against 261 file sharers across the country. Four years later, that number has grown to well over 20,000 file sharers and seems to be growing by the week.
The vast majority of those who have been sued simply settled their case to avoid a legal fight. However, a few have held on and the first such case, Capitol Records v. Jammie Thomas, concluded earlier this month with Thomas being held liable to the tune of $222,000.
Thomas plans to appeal the verdict, however, that appeal appears to focus more on the amount of damages awarded, not the verdict itself.
However, even with the first case concluded, there are still more questions than answers to be found.
Where Things Are
Most regard the Thomas case as one of the RIAA’s strongest. Thomas was a Kazaa user, which made it possible to identify her both by username and IP address. Since she had used the same username elsewhere, her IP was relatively static and there was little possibility of someone else using her machine, it was fairly easy for the RIAA to make a case against her.
However, more difficult cases are waiting in the wings. Not only are there cases where the identification of the infringer is more in doubt, but also possibly cases with less-friendly judges that will set higher bars. For example, in the Thomas case, the RIAA only had to prove that Thomas made the files available for download, not that anyone had actually copied them. Though many judges have agreed with the argument that simply making a work available for download is an infringement, others have not.
Though the Thomas case was a definite victory for the RIAA, it was just the opening salvo in what will likely be a long and uphill battle for the record labels.
What’s At Stake
Most cases of plagiarism and/or content theft on the Web center around getting the content removed. However, in the event that an infringement were heinous enough or damaging enough to warrant going after civil damages for, many of the challenges the RIAA faces today with its suits would also be faced by any smaller rightsholder trying to protect their work.
The first issue would be the identification of the individual who posted the infringing material and what is required to guarantee to the courts that you have the right person. Is an IP adequate? What about situations where there is an open WIFI connection? Is the person who is responsible for the connection accountable for what is done with it even if they had no knowledge of the abuse? Striking a balance between the rights of copyright holders, privacy and enabling open access will not be an easy task.
Second is the question of whether or not “making available” constitutes infringement. If I post a work on a Web site, is that infringement in and of itself or do I have to prove that someone visited the site? Though such an infringement could be proved via server logs, those can be unavailable and hard to obtain. Clearly rightsholders would prefer that making available be an infringement unto itself.
Finally, there’s the issue of damages. Though most works posted on the Web are not registered with the United States Copyright Office and aren’t eligible for statutory damages, those who do register rely on those statutory damages to make filing suit over copyright matters financially viable. Without them, the cost of suing would far outstrip any potential gains in most cases.
If the verdict in the Thomas case is deemed to be unconstitutionally excessive and new rules are set regarding the statutory damages awarded for copyright infringement, currently the minimum is $750 for willful infringement, then other rightsholders may not be able to pursue legal action due to the sheer expense.
In the end, if the RIAA loses its cases, though many file sharers will cheer, rightsholders could lose out and it could weaken the ability for less-litigious artists to protect their works from spammers, scrapers and other thieves.
What it Hinges On
One word. Interpretation.
These cases are going to come largely down to how judges apply decades-old copyright law to the digital age.
When does publication begin? What constitutes public display and performance on the Web? What are the responsibilities one has with others who use their Internet connection? These are all questions the court has to decide and, so far, decisions have varied wildly.
Most likely, we will need at least a few Supreme Court rulings before these matters get decided with any kind of finality. Unfortunately, such a ruling could be a long ways away and, as the Grokster case proved, we can’t always trust the court to answer the question before it.
What is Likely to Happen
The RIAA has been difficult to predict through all of this. In 2000, they went out of their way to clarify that they weren’t suing any of their fans, now they have sued 20,000 of them.
Through it all the RIAA has had a few setbacks, they’ve dropped some cases and lost a few others. However, overall, their win/loss record has been fairly impressive. Of the thousands of suits filed, only a handfull have turned against them.
This win streak will likely continue. Though unpopular and villified, the lawyers at the RIAA are not known for losing. This campaign will likely not end in the courtroom, but rather, through a war of attrition.
According to the RIAA, they are losing money to the lawsuits and statistics indicate that it is doing nothing to slow or stop file sharing.
Though the RIAA has worked hard to ignore the reality of the situation these past few years, even they will have to come to grips with reality soon enough and acknowledge that the campaign is doing nothing but further alientating music listeners.
If there was ever a case of being legally right but business wrong, this is it. Just because file sharing is illegal and can be sued over does not mean that it is a good idea.
But even though the RIAA’s parade of lawsuits is not likely to stop or even slow file sharing, it does shine a spotlight on a very difficult area of copyright law and force judges to think about issues that they otherwise never would have ruled on.
Though the RIAA has few friends and seems to be gaining little from these lawsuits, the rest of the Web may benefit heavily from the greater legal clarity that these cases might provide.
The real question is how will the judges rule and will they strike a balance that serves all parties involved? Given the current string of copyright rulings, that seems like a distant hope at best, but it is the brightest hope we have right now.
That is, at least until lawmakers decide to take up these issues themselves.