Trade group efforts against file sharing
Encyclopedia
Impact of illegal downloading on the film industry
Arts and media industry trade group
s such as the Recording Industry Association of America
(RIAA) and Motion Picture Association of America
(MPAA) strongly oppose and attempt to prevent copyright infringement
through file sharing
. The organizations particularly target music files distributed via the Internet using peer-to-peer
software, a practice which the RIAA says results in a reduction of profits of around $4.2 billion for the music industry worldwide, harming honest consumers, record labels, retailers and artists. Most economic studies find that file sharing hurts sales, though not to the precise degree trade bodies themselves report. Others show mixed effects, and sometimes overall net social "welfare" benefits. Others point to a transfer of revenues from record sales to other music services.
The RIAA sees lawsuits as a way to combat the problem of Internet-based copyright infringement. RIAA President Cary Sherman
claims that the large number of lawsuits filed has "arrested the growth of a runaway solution that would have grown worse and worse." As of July 2006, the RIAA had brought lawsuits against more than 20,000 people in the United States suspected of distributing copyrighted works, yet the practice remains rampant throughout the world.
distribution of music, without the consent of the copyright owner, harms the careers of current and future artists, both because record companies would have fewer sales and also because musicians, singers, songwriters and producers depend heavily on royalties and fees gained from their music.
According to David Glenn, writing in The Chronicle of Higher Education
, "A majority of economic studies have concluded that file sharing hurts sales", though not to the precise degree "the record industry would like the public to believe." A study by economists Felix Oberholzer-Gee and Koleman Strumpf in 2004 concluded that music file sharing's effect on sales was "statistically indistinguishable from zero". This research was challenged by Professor Stan Liebowitz, who accused Oberholzer-Gee and Strumpf of withholding data and making multiple assumptions about the music industry "that are just not correct." Similarly,
a 2006 study published by Industry Canada has concluded that file-sharing has no measureable effect on the sales of CDs. A 2007 study by the Institute for Policy Innovation, on the other hand, concluded that copyright infringement of movies, music, and software, including unauthorized downloading, costs the United States economy 373,375 jobs and $58 billion in annual output.
In June 2010, Billboard reported that economists Oberholzer-Gee and Strumpf had "changed their minds", now finding "no more than 20% of the recent decline in sales is due to sharing". However, citing Nielsen SoundScan
as their source, the co-authors maintained that illegal downloading had not deterred people from being original. "In many creative industries, monetary incentives play a reduced role in motivating authors to remain creative. Data on the supply of new works are consistent with the argument that file sharing did not discourage authors and publishers. Since the advent of file sharing, the production of music, books, and movies has increased sharply." Glenn Peoples of Billboard disputed the underlying data, saying "SoundScan's number for new releases in any given year represents new commercial titles, not necessarily new creative works." The RIAA likewise responded that "new releases" and "new creative works" are two separate things. "[T]his figure includes re-releases, new compilations of existing songs, and new digital-only versions of catalog albums. SoundScan has also steadily increased the number of retailers (especially non-traditional retailers) in their sample over the years, better capturing the number of new releases brought to market. What Oberholzer and Strumpf found was better ability to track new album releases, not greater incentive to create them."
(IRMA) members sued eircom
, the largest broadband provider in Ireland, over alleged illegal file sharing by subscribers. IRMA had previously demanded that eircom install content filters or take other steps to block IRMA's copyrighted music from being shared.
In November 2008, a group of 34 film and television studios (including Village Roadshow, Warner Brothers, Sony Pictures, Disney and the Seven Network
), represented by the Australian Federation Against Copyright Theft (AFACT) launched action
in the Federal Court of Australia
against iiNet
, Australia's third-largest internet service provider. AFACT alleges that iiNet customers have breached its members' copyright by using peer-to-peer software to share and download films and television programs, and that iiNet had not acted against the alleged file-sharers despite 18 notifications of copyright infringement.
for providing a peer-to-peer file sharing network for MP3 files. The plaintiffs claimed that Napster "facilitate[d] piracy of music on an unprecedented scale." Napster became bankrupt
during the case; and has since been taken over by Roxio
and provides a download service which is sanctioned by the RIAA.
In 2002, the RIAA sued Aimster, which provided a similar service.
In 2003, MPAA studios sued Grokster
and other file sharing services in a case that would eventually go to the Supreme Court of the United States
. The court held that producers of technology could be held liable for intent to induce infringement.
In 2006, RIAA labels sued the developers of LimeWire
, a client for the Gnutella
file sharing network.
and local police seized the servers of BitTorrent tracker
The Pirate Bay
, causing a three day outage. The raid, alleged to be motivated by pressure from the Motion Picture Association of America (MPAA), was publicized as a success by the MPAA, but ridiculed by The Pirate Bay's operators.
, deliberately flooding P2P networks with "junk music".
A further reference to such activity was discovered when computer software and src codes along with emails were stolen from US Company "Media Defender"; their software was designed to facilitate "interdiction" on all the then known peer-to-peer file sharing networks. The contents of the emails made it clear that both P2P network monitoring and interdiction were undertaken by Media Defender.
, an India based technology company, revealed in 2010 that it has made denial-of-service attack
s on torrent hosting websites on behalf of movie studios. Internet activists retaliated against Aiplex and industry trade groups with denial-of-service attacks of their own, coordinated through Operation Payback
.
The MPAA has brought file sharing lawsuits against individuals naming the following plaintiffs.
A critical case, which may not only determine the fate of the RIAA's litigation campaign, but also impact the scope of copyright across the internet, is Elektra v. Barker. In that case, Tenise Barker, a 29-year-old nursing student in the Bronx, moved to dismiss the RIAA's complaint for lack of specificity, and on the ground that merely "making available" does not constitute a copyright infringement. In opposing Ms. Barker's motion, the RIAA argued that "making available" is indeed a copyright infringement. Upon learning of the RIAA's argument, which sought to expand copyright law, the Computer & Communications Industry Association, the U.S. Internet Industry Association, and the Electronic Frontier Foundation (EFF) submitted amicus curiae briefs supporting Ms. Barker's motion and rebutting the RIAA's argument. The Motion Picture Association of America, in turn, submitted a brief supporting the RIAA. The U.S. Department of Justice submitted a "Statement of Interest" refuting one argument made by the EFF, but taking no position on the "making available" issue; the DOJ stated that it has never prosecuted anyone for "making available". The case was argued before Judge Kenneth M. Karas in Manhattan federal court on January 26, 2007, who indicated that he will decide the "making available" issue. As of September 2, 2007, the parties are awaiting the Court's decision. Meanwhile, the same issue has been briefed in a more recent case, Warner v. Cassin. In March 2008, the scope issue was resolved in Barker. Judge Karas ruled in this case that simply "making available" (such as dropping a file in a shared folder) did not constitute copyright infringement.
for past infringements, "on the condition that they refrain from future infringement," and delete the infringing material. Individuals were no longer eligible for amnesty once they had been sued. The program is now discontinued.
The RIAA states this was an educational initiative about illegal file sharing, and was stopped due to increased public awareness in the issues. The program may also have been stopped due to the low number of takers.
There is some doubt about whether the RIAA can offer this protection, with some attorneys claiming the offer of amnesty was misleading, and legal documents provided by the RIAA "provides ... no promise not to sue you."
A lawsuit brought in California state court, Parke v. RIAA, alleged the RIAA had committed fraudulent business practices by offering the program.
, on behalf of plaintiff labels and studios, to collect information about IP addresses sharing potentially infringing files on via peer-to-peer networks. Collected information includes lists of potentially infringing files an IP address reports as available for downloading, files actually downloaded by MediaSentry from an IP address, and dates and times of the observations.
In the United States, MediaSentry is not licensed as a private investigator in some of the states in which observed files are physically located. Because of this, beginning in February 2008, some defendants have challenged the legality of MediaSentry's practices, by seeking to exclude evidence collected by MediaSentry from the lawsuits, and by filing complaints with state licensing boards.
The RIAA asserts that MediaSentry is not a private investigator, so does not require licensing in any jurisdiction. A February 2008 redesign of MediaSentry's website removed a section on "litigation support services" which described "gathering evidence for civil/criminal litigation and prosecution".
The settlement letters urged ISP's to preserve evidence for the benefit of the RIAA and invited the students and subscribers to visit an RIAA website for the purpose of entering into a "discount settlement" payable by credit card. By March 2007, the focus had shifted from ISP's to colleges and universities.
The average settlement amount offered by the RIAA is about $3,000
. Verizon attorney Sarah Deutsch
challenged the subpoena's validity on procedural and privacy grounds. In December 2003, this failed when a federal appeals court overturned a lower court order. The RIAA claims this procedure was sanctioned by the Digital Millennium Copyright Act
, but the appeals court ruled that the DMCA regulation applies only to data actually hosted by an Internet service provider
, rather than data on a customer's computer. The United States Supreme Court declined to review this ruling in 2004. As a result, the RIAA must now file individual civil suits against each accused file-sharer, and the ISP and alleged file-sharer have more legal avenues for preventing disclosure of their identity, making the entire process much more expensive, slow and complicated. The court opinion was written by Judge Douglas Ginsburg. The RIAA typically files suits against multiple Does.
The RIAA names defendants based on ISP identification of the subscriber associated with an IP address
, and as such do not know any additional information about a person before they sue. After an Internet subscriber's identity is discovered, but before an individual lawsuit is filed, the subscriber is typically offered an opportunity to settle. The standard settlement is a payment of several thousand dollars to the RIAA, and an agreement not to engage in file-sharing of RIAA music.
The Electronic Frontier Foundation
, American Civil Liberties Union
and Public Citizen
oppose the ability of the RIAA and other companies to "strip Internet users of anonymity without allowing them to challenge the order in court".
The RIAA's methods of identifying individual users have led to the issuing of subpoena
s to a dead grandmother, an elderly computer novice, and even those without any computer at all. The RIAA has also brought lawsuits against children, some as young as 12.
The RIAA looks to various colleges and universities throughout the United States as some of the biggest offenders of peer to peer file sharing. It has found California colleges and universities to have received the most pre-litigation letters and copyright infringement notices.
In 2005, Patricia Santangelo made the news by challenging the RIAA's lawsuit against her. While she succeeded in getting the lawsuit against her dismissed two years later, her children were then sued. A default judgment entered against her daughter Michelle for $30,750 for failing to respond to the lawsuit, was subsequently vacated
.
, filed counterclaims against the RIAA including a RICO
charge. The RIAA requested deposition of her 10 year-old daughter. Subsequently the RIAA dropped the case, leaving open only the question of attorneys fees and the RIAA's liability under Ms. Andersen's counterclaims. Thereafter, Ms. Andersen sued the RIAA, the record company plaintiffs, Safenet (MediaSentry), and Settlement Support Center LLC, for malicious prosecution
, subsequently amending her complaint to turn the case into a class action
.
In Texas, July 2007, Rhonda Crain (Sony v. Crain) sought leave to add a counterclaim against the RIAA for knowingly engaging in "one or more overt acts of unlawful private investigation" in the RIAA case against Crain.
In one file-sharing case, the RIAA has been referred by the defendants as "a cartel acting collusively
in violation of the antitrust laws and of public policy
, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have". In Arista v. Limewire this was as well alleged by the defendants and referred to in the defendants counterclaim
.
See, e.g. UMG v. Lindor, where the RIAA has moved to "strike" those accusations. The motion to strike the charges is pending, and is scheduled to be taken under consideration by the Court on October 2, 2007. See also Arista vs. Limewire for a detailed overview.
In February 2008 it was alleged by a group of artist managers & lawyers that the RIAA has been withholding settlements from artists for several years. The RIAA gained the money through lawsuits claiming to defend the rights of artists, although none of the artists whose music was 'illegally' downloaded reportedly received any of the settlement money.
In September 2008, Charles Nesson
filed a counterclaim on behalf of Joel Tenenbaum for abuse of process
, claiming "ulterior purposes" of intimidation of other users.
upheld the legal theory behind this defense. UMG subsequently dropped the suit.
On Oct. 4, 2007 Jammie Thomas's case filed against for illegal sharing of 24 songs on Kazaa
was adjudicated, with a $222,000 ($9,250 per song) verdict awarded to the RIAA. The verdict, however, was set aside in September 2008, after the judge in the case determined that he made a mistake in the definition of "making available", leaving this case once again unresolved.
The evidence of the effectiveness of the suits is not conclusive. Recent research suggests that the lawsuits have reduced the number of files large file-sharers offer but have had limited effect on those who only offer small number of files (typically less than 1000) and have had negligible effect on general availability of files at any random time.
, the American Civil Liberties Union
, Public Citizen
, the ACLU of Oklahoma Foundation, and the American Association of Law Libraries
submitted an amicus curiae
brief in support of the motion for attorneys fees that has been made by Deborah Foster in Capitol Records v. Debbie Foster, in federal court in Oklahoma, requesting that attorney's fees be awarded to the defendant and alleging a pattern of inadequate investigation and abusive legal practices by the RIAA.
The RIAA asked the Court not to accept the amicus curiae brief, claiming that the "Movants attempt to paint a false picture of Plaintiffs and the recording industry run amok". On February 6, 2007, the attorney's fee motion was granted. On July 16, 2007, the Court ordered the RIAA to pay Ms. Foster $68,685.23 in attorneys fees.
In an Oklahoma case, Capitol Records v. Deborah Foster
, the RIAA was forced to dismiss a case after a woman filed a motion for leave to make a motion for summary judgment and attorneys fees, stating that she had nothing to do with file sharing and that her only nexus to the case was that she had paid for internet access. The judge ruled that the RIAA's withdrawal of the case—after one and a half years of litigation—did not immunize it from possible liability for attorneys fees, holding that the defendant was a "prevailing party" under the Copyright Act. The Court subsequently ruled that defendant was entitled to be reimbursed for her reasonable attorneys fees, since the RIAA's pursuit of its case was, at best, "marginal", and was being pursued to extract a settlement from someone who was clearly known not to be the direct infringer. The Court noted that the mere fact that Ms. Foster was a person who paid for an internet access account was not a basis for a copyright infringement lawsuit against her. Ms. Foster's motion for attorneys fees had been supported by an amicus curiae brief of the American Civil Liberties Union
, Public Citizen
, the Electronic Frontier Foundation
, the American Association of Law Libraries
, and ACLU Foundation of Oklahoma.
Other instances in which the RIAA was known to have been forced to back out of a case to avoid a loss, are Priority Records v. Brittany Chan in Michigan, Virgin Records v. Tammie Marson in California, and Elektra v. Wilke in Illinois.
's "Define The Line" campaign calls unauthorized copying and downloading of software "stealing".
was the RIAA's president and chief executive officer from 1998 to 2003 and under her leadership, the company commenced a legal campaign to reduce illegal file-sharing. Rosen has expressed "concern that the lawsuits have outlived most of their usefulness" and that music devices should try "to work better together."
There is much criticism of the RIAA's policy and method of suing individuals for copyright infringement, notably with Internet-based pressure groups such as the Electronic Frontier Foundation
and FreeCulture
. To date, the RIAA has sued more than 20,000 people in the United States suspected of distributing copyrighted works and settled approximately 2,500 of the cases. Brad Templeton
of the Electronic Frontier Foundation has called these types of lawsuits spamigation
and implied they are done merely to intimidate
people.
The RIAA in 2003 attempted to sue Sarah Seabury Ward, a 66-year-old sculptor
in Boston, Massachusetts, alleging that she shared more than 2,000 songs illegally. The case was dismissed when it was discovered that Ward was a computer novice.
The RIAA was criticized in the media after they subpoena
ed Gertrude Walton, an 83-year-old woman who died in December 2004. Walton was accused of swapping rock, pop and rap songs. RIAA spokesman Jonathan Lamy commented that legal proceedings had commenced before Walton died. "Our evidence gathering and our subsequent legal actions all were initiated weeks and even months ago."
In a Brooklyn case, Elektra v. Schwartz, against RaeJ Schwartz, a Queens woman with Multiple Sclerosis, the RIAA's lawyers wrote to the Judge that they were in possession of a letter in which "...America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffs’ sound recordings were downloaded and distributed to the public without Plaintiffs’ consent." After the defense received a copy of the letter, it turned out that the letter merely identified Ms. Schwartz as the owner of an internet access account and said nothing at all about "downloading" or "distributing".
The RIAA has also been criticized for bringing lawsuits against children, including 12-year-old Brianna LaHara of New York City
in 2003. and 13-year-old Brittany Chan of Michigan
. Under the threat of a possible defendant's motion for summary judgment and attorneys fees, the RIAA withdrew the case Priority Records v. Chan. while LaHara's mother agreed to pay $2,000 in settlements. The RIAA also sued the 16-year-old son of Patricia Santangelo of Wappingers Falls, New York
and the 10-year-old daughter of Tanya Andersen in Oregon
. Santangelo's case is pending while Andersen's case was dismissed in 2007
The RIAA's recent targeting of students has generated controversy as well. An April 4, 2006 story in the MIT
campus newspaper The Tech indicates that an RIAA representative stated to Cassi Hunt, an alleged file-sharer, that previously, "the RIAA has been known to suggest that students drop out of college or go to community college in order to be able to afford settlements."
The RIAA has also filed a lawsuit against a woman who has never bought, turned on, or used a personal computer for using an "online distribution system" to obtain unlicensed music files. This occurred again in the Walls case;
The RIAA filed a lawsuit against Larry Scantlebury, a man who had died. They offered the deceased man's family a period of sixty days to grieve the death before they began to depose members of Mr. Scantlebury’s family for the suit against his estate.
Arts and media industry trade group
Industry trade group
A trade association, also known as an industry trade group, business association or sector association, is an organization founded and funded by businesses that operate in a specific industry...
s such as the Recording Industry Association of America
Recording Industry Association of America
The Recording Industry Association of America is a trade organization that represents the recording industry distributors in the United States...
(RIAA) and Motion Picture Association of America
Motion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
(MPAA) strongly oppose and attempt to prevent copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
through file sharing
File sharing
File sharing is the practice of distributing or providing access to digitally stored information, such as computer programs, multimedia , documents, or electronic books. It may be implemented through a variety of ways...
. The organizations particularly target music files distributed via the Internet using peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
software, a practice which the RIAA says results in a reduction of profits of around $4.2 billion for the music industry worldwide, harming honest consumers, record labels, retailers and artists. Most economic studies find that file sharing hurts sales, though not to the precise degree trade bodies themselves report. Others show mixed effects, and sometimes overall net social "welfare" benefits. Others point to a transfer of revenues from record sales to other music services.
The RIAA sees lawsuits as a way to combat the problem of Internet-based copyright infringement. RIAA President Cary Sherman
Cary Sherman
Cary H. Sherman is currently the President of the Recording Industry Association of America as has been for the past 13 years.-Education:Sherman graduated from Cornell University in 1968, and Harvard Law School in 1971.-Career:...
claims that the large number of lawsuits filed has "arrested the growth of a runaway solution that would have grown worse and worse." As of July 2006, the RIAA had brought lawsuits against more than 20,000 people in the United States suspected of distributing copyrighted works, yet the practice remains rampant throughout the world.
Effects of file sharing
The RIAA and its member groups argue that InternetInternet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
distribution of music, without the consent of the copyright owner, harms the careers of current and future artists, both because record companies would have fewer sales and also because musicians, singers, songwriters and producers depend heavily on royalties and fees gained from their music.
According to David Glenn, writing in The Chronicle of Higher Education
The Chronicle of Higher Education
The Chronicle of Higher Education is a newspaper and website that presents news, information, and jobs for college and university faculty, staff members and administrators....
, "A majority of economic studies have concluded that file sharing hurts sales", though not to the precise degree "the record industry would like the public to believe." A study by economists Felix Oberholzer-Gee and Koleman Strumpf in 2004 concluded that music file sharing's effect on sales was "statistically indistinguishable from zero". This research was challenged by Professor Stan Liebowitz, who accused Oberholzer-Gee and Strumpf of withholding data and making multiple assumptions about the music industry "that are just not correct." Similarly,
a 2006 study published by Industry Canada has concluded that file-sharing has no measureable effect on the sales of CDs. A 2007 study by the Institute for Policy Innovation, on the other hand, concluded that copyright infringement of movies, music, and software, including unauthorized downloading, costs the United States economy 373,375 jobs and $58 billion in annual output.
In June 2010, Billboard reported that economists Oberholzer-Gee and Strumpf had "changed their minds", now finding "no more than 20% of the recent decline in sales is due to sharing". However, citing Nielsen SoundScan
Nielsen SoundScan
Nielsen SoundScan is an information and sales tracking system created by Mike Fine and Mike Shalett. Soundscan is the official method of tracking sales of music and music video products throughout the United States and Canada...
as their source, the co-authors maintained that illegal downloading had not deterred people from being original. "In many creative industries, monetary incentives play a reduced role in motivating authors to remain creative. Data on the supply of new works are consistent with the argument that file sharing did not discourage authors and publishers. Since the advent of file sharing, the production of music, books, and movies has increased sharply." Glenn Peoples of Billboard disputed the underlying data, saying "SoundScan's number for new releases in any given year represents new commercial titles, not necessarily new creative works." The RIAA likewise responded that "new releases" and "new creative works" are two separate things. "[T]his figure includes re-releases, new compilations of existing songs, and new digital-only versions of catalog albums. SoundScan has also steadily increased the number of retailers (especially non-traditional retailers) in their sample over the years, better capturing the number of new releases brought to market. What Oberholzer and Strumpf found was better ability to track new album releases, not greater incentive to create them."
Actions against Internet service providers
In March 2007, Irish Recorded Music AssociationIrish Recorded Music Association
Irish Recorded Music Association is the Irish record industry association. IRMA is a non-profit association set up to manage and control the music industry in the Republic of Ireland.-Goals and activities:...
(IRMA) members sued eircom
Eircom
Eircom Group LTD is a telecommunications company in the Republic of Ireland, and a former state-owned incumbent. It is currently the largest telecommunications operator in the Republic of Ireland and operates primarily on the island of Ireland, with a point of presence in Great Britain.As Bord...
, the largest broadband provider in Ireland, over alleged illegal file sharing by subscribers. IRMA had previously demanded that eircom install content filters or take other steps to block IRMA's copyrighted music from being shared.
In November 2008, a group of 34 film and television studios (including Village Roadshow, Warner Brothers, Sony Pictures, Disney and the Seven Network
Seven Network
The Seven Network is an Australian television network owned by Seven West Media Limited. It dates back to 4 November 1956, when the first stations on the VHF7 frequency were established in Melbourne and Sydney.It is currently the second largest network in the country in terms of population reach...
), represented by the Australian Federation Against Copyright Theft (AFACT) launched action
AFACT v iiNet
Roadshow Films Pty Ltd & Ors v iiNet Ltd was a court case between members of the Australian Federation Against Copyright Theft and other movie and television studios and iiNet Ltd...
in the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
against iiNet
IiNet
iiNet Limited is Australia's second largest internet service provider with over 1.3 million customers as of 15th August 2011. Their focus is primarily on ADSL-based Internet access, using their own ADSL2+ infrastructure, and reselling Telstra ADSL1. iiNet also provides dial-up and voice...
, Australia's third-largest internet service provider. AFACT alleges that iiNet customers have breached its members' copyright by using peer-to-peer software to share and download films and television programs, and that iiNet had not acted against the alleged file-sharers despite 18 notifications of copyright infringement.
Litigation
On December 7, 1999, RIAA labels sued NapsterNapster
Napster is an online music store and a Best Buy company. It was originally founded as a pioneering peer-to-peer file sharing Internet service that emphasized sharing audio files that were typically digitally encoded music as MP3 format files...
for providing a peer-to-peer file sharing network for MP3 files. The plaintiffs claimed that Napster "facilitate[d] piracy of music on an unprecedented scale." Napster became bankrupt
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....
during the case; and has since been taken over by Roxio
Roxio
Roxio is a division and brand of Sonic Solutions . Roxio branded products are sold online, through over 15,000 retail outlets, to organizations through volume license agreements and pre-loaded onto OEM PC's and devices...
and provides a download service which is sanctioned by the RIAA.
In 2002, the RIAA sued Aimster, which provided a similar service.
In 2003, MPAA studios sued Grokster
Grokster
Grokster Ltd. was a privately owned software company based in Nevis, West Indies that created the Grokster peer-to-peer file-sharing client in 2001 that utilized the FastTrack protocol. Grokster Ltd. was rendered extinct in late 2005 by the United States Supreme Court's decision in MGM Studios,...
and other file sharing services in a case that would eventually go to the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. The court held that producers of technology could be held liable for intent to induce infringement.
In 2006, RIAA labels sued the developers of LimeWire
LimeWire
LimeWire is a free peer-to-peer file sharing client program that runs on Windows, Mac OS X, Linux, and other operating systems supported by the Java software platform. LimeWire uses the gnutella network as well as the BitTorrent protocol. A free software version and a purchasable "enhanced"...
, a client for the Gnutella
Gnutella
Gnutella is a large peer-to-peer network which, at the time of its creation, was the first decentralized peer-to-peer network of its kind, leading to other, later networks adopting the model...
file sharing network.
Support of police actions
In a controversial May 2006 raid, Swedish RKPSwedish Police Service
The Swedish Police Service is a collection of Government agencies concerned with police matters in Sweden. The Swedish Police Service consists of 28,500 employees of which 39 per cent are women. The staff consists of 20,000 police officers of which 25 per cent are women and 8,500 civilian staff of...
and local police seized the servers of BitTorrent tracker
BitTorrent tracker
A BitTorrent tracker is a server that assists in the communication between peers using the BitTorrent protocol. It is also, in the absence of extensions to the original protocol, the only major critical point, as clients are required to communicate with the tracker to initiate downloads...
The Pirate Bay
The Pirate Bay
The Pirate Bay is a Swedish website which hosts magnet links and .torrent files, which allow users to share electronic files, including multimedia, computer games and software via BitTorrent...
, causing a three day outage. The raid, alleged to be motivated by pressure from the Motion Picture Association of America (MPAA), was publicized as a success by the MPAA, but ridiculed by The Pirate Bay's operators.
Peer-to-peer spoofing
The RIAA has apparently in the past been revealed to and may have admitted to the practice of spoofingSpoofing (anti-piracy measure)
Spoofing, or decoying, is the practice of inundating online networks with bogus or incomplete files of the same name in an effort to reduce copyright infringement on peer-to-peer file sharing networks....
, deliberately flooding P2P networks with "junk music".
A further reference to such activity was discovered when computer software and src codes along with emails were stolen from US Company "Media Defender"; their software was designed to facilitate "interdiction" on all the then known peer-to-peer file sharing networks. The contents of the emails made it clear that both P2P network monitoring and interdiction were undertaken by Media Defender.
Denial-of-service attacks
Aiplex SoftwareAiplex Software
Aiplex Software is a company based in India contracted by the MPAA to deliver copyright notices to websites that they deem violate copyright laws, and distributed denial-of-service attacks to said sites if they fail to remove the offending content...
, an India based technology company, revealed in 2010 that it has made denial-of-service attack
Denial-of-service attack
A denial-of-service attack or distributed denial-of-service attack is an attempt to make a computer resource unavailable to its intended users...
s on torrent hosting websites on behalf of movie studios. Internet activists retaliated against Aiplex and industry trade groups with denial-of-service attacks of their own, coordinated through Operation Payback
Operation Payback
Operation Payback is a coordinated, decentralized group of attacks on opponents of Internet piracy by Internet activists using the "Anonymous" moniker - a group sometimes affiliated with the website 4chan. Operation Payback started as retaliation to distributed denial of service attacks on torrent...
.
Participating plaintiffs
The RIAA has brought file sharing lawsuits against individuals naming the following plaintiffs.- EMIEMIThe EMI Group, also known as EMI Music or simply EMI, is a multinational music company headquartered in London, United Kingdom. It is the fourth-largest business group and family of record labels in the recording industry and one of the "big four" record companies. EMI Group also has a major...
labels: Capitol RecordsCapitol RecordsCapitol Records is a major United States based record label, formerly located in Los Angeles, but operating in New York City as part of Capitol Music Group. Its former headquarters building, the Capitol Tower, is a major landmark near the corner of Hollywood and Vine...
, Priority RecordsPriority RecordsPriority Records is an American record label, owned and operated by EMI, which has made a name for itself dealing primarily in hip hop, pop and world...
, Virgin RecordsVirgin RecordsVirgin Records is a British record label founded by English entrepreneur Richard Branson, Simon Draper, and Nik Powell in 1972. The company grew to be a worldwide music phenomenon, with platinum performers such as Roy Orbison, Devo, Genesis, Keith Richards, Janet Jackson, Culture Club, Lenny... - Sony BMG labels: Arista RecordsArista RecordsArista was an American record label. It was a wholly owned subsidiary of Sony Music Entertainment and operated under the RCA Music Group. The label was founded in 1974 by Clive Davis, who formerly worked for CBS Records...
, Bertelsmann Music Group, LaFace RecordsLaFace RecordsLaFace Records is an American record label, owned and operated by Sony Music Entertainment.-Company history:LaFace was formed in 1989 as a joint venture between the producing duo Antonio "L.A." Reid & Kenneth "Babyface" Edmonds, and Arista Records. The combined nicknames of the duo's successful...
, Sony Records, Zomba Label Group - Universal Music GroupUniversal Music GroupUniversal Music Group is an American music group, the largest of the "big four" record companies by its commanding market share and its multitude of global operations...
labels: Interscope RecordsInterscope RecordsInterscope Records is an American record label owned by Universal Music Group that currently operates as one third of UMG's Interscope-Geffen-A&M label group.-History:...
, Loud RecordsLoud RecordsLoud Records is a subsidiary of SRC Records founded by Steve Rifkind in 1992.Loud was a hip hop label which has released material by acts such as Wu-Tang Clan, Big Punisher, Mobb Deep, Krayzie Bone, The Beatnuts, M.O.P., Tha Alkaholiks, Pete Rock, Lil' Flip, Three 6 Mafia, Project Pat, Xzibit,...
, Motown RecordsMotown RecordsMotown is a record label originally founded by Berry Gordy, Jr. and incorporated as Motown Record Corporation in Detroit, Michigan, United States, on April 14, 1960. The name, a portmanteau of motor and town, is also a nickname for Detroit... - Univision labels: Fonovisa RecordsFonovisa RecordsFonovisa Records is an American Spanish language record label. Fonovisa mainly produces Mexican style music. It is well known for its signing with artists such as Cristian Castro, Enrique Iglesias, and Thalía....
- Warner Music GroupWarner Music GroupWarner Music Group is the third largest business group and family of record labels in the recording industry, making it one of the big four record companies...
labels: Atlantic RecordsAtlantic RecordsAtlantic Records is an American record label best known for its many recordings of rhythm and blues, rock and roll, and jazz...
, Elektra RecordsElektra RecordsElektra Records is an American record label owned by Warner Music Group. In 2004, it was consolidated into WMG's Atlantic Records Group. After five years of dormancy, the label was revived by Atlantic in 2009....
, Lava RecordsLava RecordsLava Records is an American based record label, owned by Universal Music Group, and operated through Universal Republic Records.-Company history:...
, London-Sire RecordsLondon-Sire RecordsLondon-Sire Records was an American-based record label owned by Warner Music Group, created in 2000 with the merging of Sire Records and London Records. Seymour Stein remained at the helm as CEO. The binding of the two companies, however, proved to be largely unsuccessful...
, Maverick RecordsMaverick RecordsMaverick Recording Company is an American record label owned and operated by Warner Music Group, and distributed through Warner Bros. Records.-Company history:...
, Warner Bros. RecordsWarner Bros. RecordsWarner Bros. Records Inc. is an American record label. It was the foundation label of the present-day Warner Music Group, and now operates as a wholly owned subsidiary of that corporation. It maintains a close relationship with its former parent, Warner Bros. Pictures, although the two companies...
The MPAA has brought file sharing lawsuits against individuals naming the following plaintiffs.
- Lions Gate EntertainmentLions Gate EntertainmentLions Gate Entertainment Corporation is a North American entertainment company. The company was formed in Vancouver, British Columbia in 1997, and is headquartered in Santa Monica, California...
- News CorporationNews CorporationNews Corporation or News Corp. is an American multinational media conglomerate. It is the world's second-largest media conglomerate as of 2011 in terms of revenue, and the world's third largest in entertainment as of 2009, although the BBC remains the world's largest broadcaster...
studios: 20th Century Fox20th Century FoxTwentieth Century Fox Film Corporation — also known as 20th Century Fox, or simply 20th or Fox — is one of the six major American film studios... - Paramount PicturesParamount PicturesParamount Pictures Corporation is an American film production and distribution company, located at 5555 Melrose Avenue in Hollywood. Founded in 1912 and currently owned by media conglomerate Viacom, it is America's oldest existing film studio; it is also the last major film studio still...
- Sony Pictures studios: Columbia PicturesColumbia PicturesColumbia Pictures Industries, Inc. is an American film production and distribution company. Columbia Pictures now forms part of the Columbia TriStar Motion Picture Group, owned by Sony Pictures Entertainment, a subsidiary of the Japanese conglomerate Sony. It is one of the leading film companies...
, Metro-Goldwyn-MayerMetro-Goldwyn-MayerMetro-Goldwyn-Mayer Inc. is an American media company, involved primarily in the production and distribution of films and television programs. MGM was founded in 1924 when the entertainment entrepreneur Marcus Loew gained control of Metro Pictures, Goldwyn Pictures Corporation and Louis B. Mayer...
, Screen GemsScreen GemsScreen Gems is an American movie production company and subsidiary company of Sony Pictures Entertainment's Columbia TriStar Motion Picture Group that has served several different purposes for its parent companies over the decades since its incorporation.... - Time WarnerTime WarnerTime Warner is one of the world's largest media companies, headquartered in the Time Warner Center in New York City. Formerly two separate companies, Warner Communications, Inc...
studios: New Line CinemaNew Line CinemaNew Line Cinema, often simply referred to as New Line, is an American film studio. It was founded in 1967 by Robert Shaye and Michael Lynne as a film distributor, later becoming an independent film studio. It became a subsidiary of Time Warner in 1996 and was merged with larger sister studio Warner...
, Warner Bros.Warner Bros.Warner Bros. Entertainment, Inc., also known as Warner Bros. Pictures or simply Warner Bros. , is an American producer of film and television entertainment.One of the major film studios, it is a subsidiary of Time Warner, with its headquarters in Burbank,... - Universal StudiosUniversal StudiosUniversal Pictures , a subsidiary of NBCUniversal, is one of the six major movie studios....
- The Walt Disney CompanyThe Walt Disney CompanyThe Walt Disney Company is the largest media conglomerate in the world in terms of revenue. Founded on October 16, 1923, by Walt and Roy Disney as the Disney Brothers Cartoon Studio, Walt Disney Productions established itself as a leader in the American animation industry before diversifying into...
Scope of distribution rights
Plaintiffs initiate lawsuits against individuals without specific evidence of unauthorized uploading of files, which could infringe the plaintiffs' reproduction rights. They assert an alternative claim, that making files available for download over the Internet is an infringement of their distribution rights.A critical case, which may not only determine the fate of the RIAA's litigation campaign, but also impact the scope of copyright across the internet, is Elektra v. Barker. In that case, Tenise Barker, a 29-year-old nursing student in the Bronx, moved to dismiss the RIAA's complaint for lack of specificity, and on the ground that merely "making available" does not constitute a copyright infringement. In opposing Ms. Barker's motion, the RIAA argued that "making available" is indeed a copyright infringement. Upon learning of the RIAA's argument, which sought to expand copyright law, the Computer & Communications Industry Association, the U.S. Internet Industry Association, and the Electronic Frontier Foundation (EFF) submitted amicus curiae briefs supporting Ms. Barker's motion and rebutting the RIAA's argument. The Motion Picture Association of America, in turn, submitted a brief supporting the RIAA. The U.S. Department of Justice submitted a "Statement of Interest" refuting one argument made by the EFF, but taking no position on the "making available" issue; the DOJ stated that it has never prosecuted anyone for "making available". The case was argued before Judge Kenneth M. Karas in Manhattan federal court on January 26, 2007, who indicated that he will decide the "making available" issue. As of September 2, 2007, the parties are awaiting the Court's decision. Meanwhile, the same issue has been briefed in a more recent case, Warner v. Cassin. In March 2008, the scope issue was resolved in Barker. Judge Karas ruled in this case that simply "making available" (such as dropping a file in a shared folder) did not constitute copyright infringement.
Amnesty programs
Between September 2003 and April 2004, the RIAA, through its Clean Slate Program, offered individual file sharers amnestyAmnesty
Amnesty is a legislative or executive act by which a state restores those who may have been guilty of an offense against it to the positions of innocent people, without changing the laws defining the offense. It includes more than pardon, in as much as it obliterates all legal remembrance of the...
for past infringements, "on the condition that they refrain from future infringement," and delete the infringing material. Individuals were no longer eligible for amnesty once they had been sued. The program is now discontinued.
The RIAA states this was an educational initiative about illegal file sharing, and was stopped due to increased public awareness in the issues. The program may also have been stopped due to the low number of takers.
There is some doubt about whether the RIAA can offer this protection, with some attorneys claiming the offer of amnesty was misleading, and legal documents provided by the RIAA "provides ... no promise not to sue you."
A lawsuit brought in California state court, Parke v. RIAA, alleged the RIAA had committed fraudulent business practices by offering the program.
Collection of evidence
The RIAA and MPAA contract MediaSentryMediaSentry
MediaSentry was a United States company that provided services to the music recording, motion picture, television, and software industries for locating and identifying IP addresses that are engaged in the use of online networks to share material in a manner said organizations claim is in violation...
, on behalf of plaintiff labels and studios, to collect information about IP addresses sharing potentially infringing files on via peer-to-peer networks. Collected information includes lists of potentially infringing files an IP address reports as available for downloading, files actually downloaded by MediaSentry from an IP address, and dates and times of the observations.
In the United States, MediaSentry is not licensed as a private investigator in some of the states in which observed files are physically located. Because of this, beginning in February 2008, some defendants have challenged the legality of MediaSentry's practices, by seeking to exclude evidence collected by MediaSentry from the lawsuits, and by filing complaints with state licensing boards.
The RIAA asserts that MediaSentry is not a private investigator, so does not require licensing in any jurisdiction. A February 2008 redesign of MediaSentry's website removed a section on "litigation support services" which described "gathering evidence for civil/criminal litigation and prosecution".
Early settlement offers
In February, 2007, the RIAA launched an 'early settlement program' directed to ISP's and to colleges and universities, urging them to pass along letters to subscribers and students offering early "settlements", prior to the disclosure of their identities. When accepted, these offers can save the RIAA the expense to procure the identities through a Doe lawsuit naming multiple defendants.The settlement letters urged ISP's to preserve evidence for the benefit of the RIAA and invited the students and subscribers to visit an RIAA website for the purpose of entering into a "discount settlement" payable by credit card. By March 2007, the focus had shifted from ISP's to colleges and universities.
The average settlement amount offered by the RIAA is about $3,000
Identification of defendants
Between 2002 and 2003, the RIAA attempted to get Verizon to disclose the identities of file-sharing customers based on a simple one-page subpoenaSubpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
. Verizon attorney Sarah Deutsch
Sarah Deutsch
Sarah Deutsch is an American attorney who currently serves as vice president and associate general counsel of the telecommunications company Verizon Communications. She was born in Brooklyn, New York....
challenged the subpoena's validity on procedural and privacy grounds. In December 2003, this failed when a federal appeals court overturned a lower court order. The RIAA claims this procedure was sanctioned by the Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
, but the appeals court ruled that the DMCA regulation applies only to data actually hosted by an Internet service provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
, rather than data on a customer's computer. The United States Supreme Court declined to review this ruling in 2004. As a result, the RIAA must now file individual civil suits against each accused file-sharer, and the ISP and alleged file-sharer have more legal avenues for preventing disclosure of their identity, making the entire process much more expensive, slow and complicated. The court opinion was written by Judge Douglas Ginsburg. The RIAA typically files suits against multiple Does.
The RIAA names defendants based on ISP identification of the subscriber associated with an IP address
IP address
An Internet Protocol address is a numerical label assigned to each device participating in a computer network that uses the Internet Protocol for communication. An IP address serves two principal functions: host or network interface identification and location addressing...
, and as such do not know any additional information about a person before they sue. After an Internet subscriber's identity is discovered, but before an individual lawsuit is filed, the subscriber is typically offered an opportunity to settle. The standard settlement is a payment of several thousand dollars to the RIAA, and an agreement not to engage in file-sharing of RIAA music.
The Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
, American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
and Public Citizen
Public Citizen
Public Citizen is a non-profit, consumer rights advocacy group based in Washington, D.C., United States, with a branch in Austin, Texas. Public Citizen was founded by Ralph Nader in 1971, headed for 26 years by Joan Claybrook, and is now headed by Robert Weissman.-Lobbying Efforts:Public Citizen...
oppose the ability of the RIAA and other companies to "strip Internet users of anonymity without allowing them to challenge the order in court".
The RIAA's methods of identifying individual users have led to the issuing of subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
s to a dead grandmother, an elderly computer novice, and even those without any computer at all. The RIAA has also brought lawsuits against children, some as young as 12.
The RIAA looks to various colleges and universities throughout the United States as some of the biggest offenders of peer to peer file sharing. It has found California colleges and universities to have received the most pre-litigation letters and copyright infringement notices.
In 2005, Patricia Santangelo made the news by challenging the RIAA's lawsuit against her. While she succeeded in getting the lawsuit against her dismissed two years later, her children were then sued. A default judgment entered against her daughter Michelle for $30,750 for failing to respond to the lawsuit, was subsequently vacated
Vacated judgment
A vacated judgment makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court which overturns, reverses, or sets aside the judgment of a lower court....
.
Individual settlement offers
As of February, 2007 the RIAA began sending letters accusing internet users of sharing files and directing them to a web site, (http://www.p2plawsuits.com/), where they can make "discount" settlements payable by credit card. The letters go on to say that anyone not settling will have lawsuits brought against them. Typical settlements are upwards of $3,000. This new strategy was formed because the RIAA's legal fees were cutting into the income from settlements.Counterclaims
Another defendant, Tanya Andersen, a 41-year-old single mother living in OregonOregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
, filed counterclaims against the RIAA including a RICO
Racketeer Influenced and Corrupt Organizations Act
The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization...
charge. The RIAA requested deposition of her 10 year-old daughter. Subsequently the RIAA dropped the case, leaving open only the question of attorneys fees and the RIAA's liability under Ms. Andersen's counterclaims. Thereafter, Ms. Andersen sued the RIAA, the record company plaintiffs, Safenet (MediaSentry), and Settlement Support Center LLC, for malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
, subsequently amending her complaint to turn the case into a class action
Class action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...
.
In Texas, July 2007, Rhonda Crain (Sony v. Crain) sought leave to add a counterclaim against the RIAA for knowingly engaging in "one or more overt acts of unlawful private investigation" in the RIAA case against Crain.
In one file-sharing case, the RIAA has been referred by the defendants as "a cartel acting collusively
Collusion
Collusion is an agreement between two or more persons, sometimes illegal and therefore secretive, to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage...
in violation of the antitrust laws and of public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have". In Arista v. Limewire this was as well alleged by the defendants and referred to in the defendants counterclaim
Counterclaim
In civil procedure, a party's claim is a counterclaim if the defending party has previously made a claim against the claiming party.Examples of counterclaims include:...
.
See, e.g. UMG v. Lindor, where the RIAA has moved to "strike" those accusations. The motion to strike the charges is pending, and is scheduled to be taken under consideration by the Court on October 2, 2007. See also Arista vs. Limewire for a detailed overview.
In February 2008 it was alleged by a group of artist managers & lawyers that the RIAA has been withholding settlements from artists for several years. The RIAA gained the money through lawsuits claiming to defend the rights of artists, although none of the artists whose music was 'illegally' downloaded reportedly received any of the settlement money.
In September 2008, Charles Nesson
Charles Nesson
Charles Rothwell Nesson is the William F. Weld Professor of Law at Harvard Law School and the founder of the Berkman Center for Internet & Society and of the Global Poker Strategic Thinking Society. He is author of Evidence, with Murray and Green, and has participated in several cases before the...
filed a counterclaim on behalf of Joel Tenenbaum for abuse of process
Abuse of process
Abuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process not justified by the underlying legal action.It is a common law intentional tort...
, claiming "ulterior purposes" of intimidation of other users.
Determination of damages
The RIAA typically seeks $750 statutory damages per song file. In the Brooklyn lawsuit UMG v. Lindor, the defendant argued that the RIAA's damage theory was unconstitutional, because it sought 1071 times the actual $0.70. In November, 2006, a Judge in a Brooklyn Federal CourtUnited States District Court for the Eastern District of New York
The United States District Court for the Eastern District of New York is the federal district court whose jurisdiction comprises the entirety of Long Island and Staten Island...
upheld the legal theory behind this defense. UMG subsequently dropped the suit.
On Oct. 4, 2007 Jammie Thomas's case filed against for illegal sharing of 24 songs on Kazaa
Kazaa
Kazaa Media Desktop started as a peer-to-peer file sharing application using the FastTrack protocol licensed by Joltid Ltd. and operated as Kazaa by Sharman Networks...
was adjudicated, with a $222,000 ($9,250 per song) verdict awarded to the RIAA. The verdict, however, was set aside in September 2008, after the judge in the case determined that he made a mistake in the definition of "making available", leaving this case once again unresolved.
The evidence of the effectiveness of the suits is not conclusive. Recent research suggests that the lawsuits have reduced the number of files large file-sharers offer but have had limited effect on those who only offer small number of files (typically less than 1000) and have had negligible effect on general availability of files at any random time.
Awarding of costs to prevailing parties
In 2006, the Electronic Frontier FoundationElectronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
, the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, Public Citizen
Public Citizen
Public Citizen is a non-profit, consumer rights advocacy group based in Washington, D.C., United States, with a branch in Austin, Texas. Public Citizen was founded by Ralph Nader in 1971, headed for 26 years by Joan Claybrook, and is now headed by Robert Weissman.-Lobbying Efforts:Public Citizen...
, the ACLU of Oklahoma Foundation, and the American Association of Law Libraries
American Association of Law Libraries
The American Association of Law Libraries "is a nonprofit educational organization with over 5,000 members nationwide. AALL's mission is to promote and enhance the value of law libraries to the legal and public communities, to foster the profession of law librarianship, and to provide leadership in...
submitted an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief in support of the motion for attorneys fees that has been made by Deborah Foster in Capitol Records v. Debbie Foster, in federal court in Oklahoma, requesting that attorney's fees be awarded to the defendant and alleging a pattern of inadequate investigation and abusive legal practices by the RIAA.
The RIAA asked the Court not to accept the amicus curiae brief, claiming that the "Movants attempt to paint a false picture of Plaintiffs and the recording industry run amok". On February 6, 2007, the attorney's fee motion was granted. On July 16, 2007, the Court ordered the RIAA to pay Ms. Foster $68,685.23 in attorneys fees.
In an Oklahoma case, Capitol Records v. Deborah Foster
Capitol Records v. Deborah Foster
Capitol v. Foster is a notable case involving intellectual property and file sharing/distribution of music. The case involves the Recording Industry Association of America filing a lawsuit against an Oklahoma woman, Deborah Foster, in November 2004...
, the RIAA was forced to dismiss a case after a woman filed a motion for leave to make a motion for summary judgment and attorneys fees, stating that she had nothing to do with file sharing and that her only nexus to the case was that she had paid for internet access. The judge ruled that the RIAA's withdrawal of the case—after one and a half years of litigation—did not immunize it from possible liability for attorneys fees, holding that the defendant was a "prevailing party" under the Copyright Act. The Court subsequently ruled that defendant was entitled to be reimbursed for her reasonable attorneys fees, since the RIAA's pursuit of its case was, at best, "marginal", and was being pursued to extract a settlement from someone who was clearly known not to be the direct infringer. The Court noted that the mere fact that Ms. Foster was a person who paid for an internet access account was not a basis for a copyright infringement lawsuit against her. Ms. Foster's motion for attorneys fees had been supported by an amicus curiae brief of the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, Public Citizen
Public Citizen
Public Citizen is a non-profit, consumer rights advocacy group based in Washington, D.C., United States, with a branch in Austin, Texas. Public Citizen was founded by Ralph Nader in 1971, headed for 26 years by Joan Claybrook, and is now headed by Robert Weissman.-Lobbying Efforts:Public Citizen...
, the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
, the American Association of Law Libraries
American Association of Law Libraries
The American Association of Law Libraries "is a nonprofit educational organization with over 5,000 members nationwide. AALL's mission is to promote and enhance the value of law libraries to the legal and public communities, to foster the profession of law librarianship, and to provide leadership in...
, and ACLU Foundation of Oklahoma.
Other instances in which the RIAA was known to have been forced to back out of a case to avoid a loss, are Priority Records v. Brittany Chan in Michigan, Virgin Records v. Tammie Marson in California, and Elektra v. Wilke in Illinois.
End of mass lawsuits
In December 2008 the Wall Street Journal reported that the RIAA had dropped its program of mass lawsuits in favor of cooperative enforcement agreements with a number of ISPs. The RIAA still reserves the right to file lawsuits against 'particularly flagrant' offenders, but the article predicted these lawsuits would "slow to a trickle."Public relations campaigns
Trade groups have engaged in several notable public relations campaigns targeting file sharing by consumers. The Business Software AllianceBusiness Software Alliance
The Business Software Alliance is a trade group established in 1988 and representing a number of the world's largest software makers and is a member of the International Intellectual Property Alliance...
's "Define The Line" campaign calls unauthorized copying and downloading of software "stealing".
Criticism
Hilary RosenHilary Rosen
Hilary Beth Rosen is a partner in the political communications firm, SKDKnickerbocker with offices in DC and New York. Prior to joining SKDK, she was the managing partner of the DC office of the Brunswick Group, a London based PR and communications strategy firm. She joined Brunswick in...
was the RIAA's president and chief executive officer from 1998 to 2003 and under her leadership, the company commenced a legal campaign to reduce illegal file-sharing. Rosen has expressed "concern that the lawsuits have outlived most of their usefulness" and that music devices should try "to work better together."
There is much criticism of the RIAA's policy and method of suing individuals for copyright infringement, notably with Internet-based pressure groups such as the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
and FreeCulture
FreeCulture.org
Students for Free Culture, formerly known as FreeCulture.org, is an international student organization working to promote free culture ideals, such as cultural participation and access to information...
. To date, the RIAA has sued more than 20,000 people in the United States suspected of distributing copyrighted works and settled approximately 2,500 of the cases. Brad Templeton
Brad Templeton
Brad Templeton is a software architect, civil rights advocate and entrepreneur. He graduated from the University of Waterloo....
of the Electronic Frontier Foundation has called these types of lawsuits spamigation
Spamigation
Spamigation is mass litigation conducted to intimidate large numbers of people. The term was coined by Brad Templeton of the Electronic Frontier Foundation to explain the tactics of the Recording Industry Association of America , which files large numbers of lawsuits against individuals for file...
and implied they are done merely to intimidate
Barratry
Barratry is the name of four legal concepts, three in criminal and civil law, and one in admiralty law.* Barratry, in criminal and civil law, is the act or practice of bringing repeated legal actions solely to harass...
people.
The RIAA in 2003 attempted to sue Sarah Seabury Ward, a 66-year-old sculptor
Sculpture
Sculpture is three-dimensional artwork created by shaping or combining hard materials—typically stone such as marble—or metal, glass, or wood. Softer materials can also be used, such as clay, textiles, plastics, polymers and softer metals...
in Boston, Massachusetts, alleging that she shared more than 2,000 songs illegally. The case was dismissed when it was discovered that Ward was a computer novice.
The RIAA was criticized in the media after they subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
ed Gertrude Walton, an 83-year-old woman who died in December 2004. Walton was accused of swapping rock, pop and rap songs. RIAA spokesman Jonathan Lamy commented that legal proceedings had commenced before Walton died. "Our evidence gathering and our subsequent legal actions all were initiated weeks and even months ago."
In a Brooklyn case, Elektra v. Schwartz, against RaeJ Schwartz, a Queens woman with Multiple Sclerosis, the RIAA's lawyers wrote to the Judge that they were in possession of a letter in which "...America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffs’ sound recordings were downloaded and distributed to the public without Plaintiffs’ consent." After the defense received a copy of the letter, it turned out that the letter merely identified Ms. Schwartz as the owner of an internet access account and said nothing at all about "downloading" or "distributing".
The RIAA has also been criticized for bringing lawsuits against children, including 12-year-old Brianna LaHara of New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
in 2003. and 13-year-old Brittany Chan of Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
. Under the threat of a possible defendant's motion for summary judgment and attorneys fees, the RIAA withdrew the case Priority Records v. Chan. while LaHara's mother agreed to pay $2,000 in settlements. The RIAA also sued the 16-year-old son of Patricia Santangelo of Wappingers Falls, New York
Wappingers Falls, New York
Wappingers Falls is a village in Dutchess County, New York, United States. The name is derived from the local Wappinger Indians. One half of the village is in the town of Wappinger and the other half is in the town of Poughkeepsie, with Wappinger Creek forming the dividing line between the...
and the 10-year-old daughter of Tanya Andersen in Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
. Santangelo's case is pending while Andersen's case was dismissed in 2007
The RIAA's recent targeting of students has generated controversy as well. An April 4, 2006 story in the MIT
Massachusetts Institute of Technology
The Massachusetts Institute of Technology is a private research university located in Cambridge, Massachusetts. MIT has five schools and one college, containing a total of 32 academic departments, with a strong emphasis on scientific and technological education and research.Founded in 1861 in...
campus newspaper The Tech indicates that an RIAA representative stated to Cassi Hunt, an alleged file-sharer, that previously, "the RIAA has been known to suggest that students drop out of college or go to community college in order to be able to afford settlements."
The RIAA has also filed a lawsuit against a woman who has never bought, turned on, or used a personal computer for using an "online distribution system" to obtain unlicensed music files. This occurred again in the Walls case;
- "I don't understand this", said James Walls, "How can they sue us when we don't even have a computer?"
The RIAA filed a lawsuit against Larry Scantlebury, a man who had died. They offered the deceased man's family a period of sixty days to grieve the death before they began to depose members of Mr. Scantlebury’s family for the suit against his estate.
See also
- File sharing and the lawFile sharing and the lawThe legal issues in file sharing involve violation of copyright laws as digital copies of copyrighted materials are transferred between users.The application of national copyright laws to peer-to-peer and file sharing networks is of global significance...
- Impact of Illegal Downloading on the Film IndustryImpact of illegal downloading on the film industryThe advent of advanced technology that allows broadband Internet access on personal computers has made the illegal downloading of films increasingly common....
- Odex's actions against file-sharingOdex's actions against file-sharingOdex's actions against file sharing were legal actions against Internet Service Providers and their subscribers in Singapore by Odex, a Singaporean-based company that virtually distributes sub-licensed Japanese anime...
- Open Music ModelOpen Music ModelThe Open Music Model is an economic and technological framework for the recording industry based on research conducted at the Massachusetts Institute of Technology...
External links
- MPAA official website
- RIAA official website
- The Subpoena Defense Alliance - provides information on court decisions related to identity disclosure and the Verizon case in particular
- How the RIAA litigation process works - Legal explanation by attorney Ray Beckerman
- Dispute Over the Economics of File Sharing Intensifies Chronicle of Higher Education