Suits Could Clarify File-Sharing Rules
On this there has been virtually no dispute: People who share copyrighted music online with strangers are breaking the law.
Several federal judges have held as much in cases against file-sharing networks such as those of Napster Inc., MP3.com Inc. and Grokster Ltd. Even the most ardent defenders of peer-to-peer networks acknowledge that many users run roughshod over copyright rules.
But that conventional wisdom has never been tested in a case pitting copyright holders against individual file sharers.
That could change as early as this week. The recording industry is poised to sue potentially hundreds of people who offer free music online -- an unprecedented action expected to ripple across the music business and the community of 60 million people in the United States who use file-sharing networks.
At the very least, the lawsuits filed by the Recording Industry Assn. of America probably would provide a much clearer guide to just what’s allowed as lawyers tease out previously unheard defenses and argue over the nuances of copyright law. At most, the suits could upend conventional wisdom about online piracy.
“Permissible aspects of file sharing exist, and we need a rule book,” said Glenn Peterson, a Sacramento lawyer representing an alleged file sharer whose identity and address have been sought in a subpoena by the RIAA. “I have teenage kids. I want to be able to say, ‘You can do A, B and C, and you can’t do D, E and F.’ ”
In 2001, a judge shut down the pioneering Napster service. (The brand later was bought by Roxio Inc., which is working to launch a version of Napster by the end of the year that will pay the record labels and music publishers for their wares.) The record labels this year lost a case seeking the same fate for the Morpheus and Grokster services, which don’t keep control of what their users do. Morpheus is distributed by StreamCast Networks Inc.
But because those rulings involved the file-sharing networks themselves, not individual users, “it isn’t clear to me that the courts have really confronted directly the question of whether the things that some people do with peer-to-peer are or are not acceptable,” said Peter Jaszi, a copyright specialist at American University’s Washington College of Law.
Simply figuring out whom to name as an individual defendant takes a fair amount of sleuthing. The RIAA spent the summer using more than 1,000 subpoenas to force Internet service providers to reveal the names and addresses of customers suspected of distributing free music.
Music collections are easy to find online. Once the RIAA identifies a particularly large stash on a PC, it tracks down the machine’s Internet protocol, or IP, address -- essentially its location on the Internet. Then it tries to get Internet access providers to match that IP address with a name.
But some caution that the name attached to an IP address isn’t necessarily the right name; the user who downloaded music could be another person in the same household -- or even a hacker thousands of miles away.
An IP address is “not DNA, and it’s not a fingerprint,” said Joseph Singleton, a lawyer at the Beverly Hills firm Vorzimer, Masserman & Chapman who has been contacted by two people whose information was subpoenaed by the RIAA.
RIAA attorney Matt Oppenheim said that if evidence in a case shows someone else in a particular home was using the suspect computer improperly, a suit will be amended to add that person as a defendant. And he pointed out that the law doesn’t exempt minors.
Legal experts expect many of those sued to settle quickly. Yet there also is a good chance that advocacy groups such as the Electronic Frontier Foundation will pick out certain individuals who tell a convincing story and subsidize their defense.
For those who fight the suits, a key goal will be to show that enough of the facts are in dispute that they deserve to have their cases go before juries. Given that half the Internet users in the United States have used a file-sharing network, the odds are high that a jury member would know someone who has downloaded music improperly. Those jurors could be sympathetic, and multiple trials could stretch the record industry’s resources.
“If everyone fights it, they lose,” Singleton said. “The federal courts will shut down.”
Spontaneous mass support could conceivably erupt as well. One of the four college students sued by the RIAA this year for running a small peer-to-peer network asked for donations through a Web site and recouped all of his $12,000 settlement costs.
Juries might also consider something they are not supposed to under copyright law: intent. One anticipated defense is that any file sharing was accidental.
Most of the major peer-to-peer networks allow users to indicate whether they wish to open up files on their computers for others to copy. (The RIAA is going after people who they believe both offered and copied files because the law is slightly different in each instance.)
Some file swappers have told the networks that they didn’t want to share music -- but didn’t realize that when they downloaded a file, the new music was still placed in a folder that could be accessed by others.
“I know of a couple of cases where somebody has opted out” of automatic sharing but “didn’t appreciate that” second mechanism, Peterson said.
Oppenheim, the RIAA lawyer, said a jury would not forgive such ignorance.
“The first response is, you must have your head in the sand. We’ve done everything humanly possible to get the word out, sending millions of instant messages” to logged-on users of Kazaa, offered by Sharman Networks Ltd., and other such services, he said. “The second response is it’s irrelevant as a matter of law.”
True, but a surprising amount of digital copyright law is still unsettled, including whether “ripping” a song from a purchased CD is legal. Some defendants probably will say they downloaded only music they already owned on CD. For them, downloading arguably had the same effect as ripping.
The U.S. Supreme Court, when it legalized the videocassette recorder by a 5-4 vote, ruled that what it called “time-shifting” -- that is, taping a show now to watch later -- is fine. The law on “space-shifting,” which includes ripping and arguably downloading copies, is less clear.
The U.S. 9th Circuit Court of Appeals in San Francisco authorized sale of the Rio portable MP3 player in 1999 and made comments favorable to space-shifting, implying that moving a purchased song from one format to another is permissible. (The Rio is now sold by Tokyo’s D&M; Holdings Inc.)
Yet when Universal Music Group sued MP3.com, a federal court in New York held that the Internet firm wasn’t entitled to copy CDs and then play the songs online for people who had purchased the same CDs.
MP3.com’s defense was based on the concept of “fair use,” which permits such activities as critics quoting passages of a book. The Copyright Act lists four factors that must be weighed in determining when an act qualifies as fair use: the purpose of the copying, including whether it is commercial or educational; the nature of the work; the amount of the work that is copied; and the effect of the copying on the market for the work.
In part because MP3.com was, like Napster, trying to make money, a federal judge in Manhattan ruled that it flunked all four tests.
Nonetheless, individuals who try a fair-use defense have a chance of winning on the first and fourth tests, some experts believe. Theoretically, they could fight to a draw. “Nobody’s really sure how far it goes,” said Tyler Ochoa, a copyright professor at Santa Clara University’s law school.
*
Times staff writer Jon Healey contributed to this report.
