Will Consumers Change Copyright Law?

WASHINGTON--As the music industry continues to fight online file swapping by filing suit, digital music lovers everywhere should take pause--and, perhaps, inventory.

Just last week, another ISP--Pacific Bell Internet Services--went to court to fight a subpoena by the Recording Industry Association of America. The RIAA, representing the major music labels, wants the ISP to disclose the names of customers it contends are uploading large volumes of digital music to peer-to-peer sites. Another ISP, Verizon, recently lost a similar fight to protect its customers.

That the RIAA is seeking more customer names indicates it may be preparing another round of suits against digital music fans. The industry association sued 261 people in September, when it launched its current copyright protection campaign.

If you're afraid the RIAA knows about your music collection, what are your best options? Will you settle or fight to the bitter end?

Legal Options

If you decide to fight, make sure your lawyer is well versed in U.S. copyright law. The recording industry is staking its claims on copyright infringement.

Few consumers have yet pushed back in the courts. A California man is seeking class action status for a suit against the RIAA. That case claims the RIAA is misleading consumers with its amnesty program, announced the same time as the first lawsuits. The so-called Clean Slate program urges file swappers to repent, file an affidavit promising to stop using peer-to-peer services, and destroy any illegal files.

Don't assume copyright law is stacked against the consumer, say some legal experts. To understand how U.S. copyright law applies to file sharing, it's useful to consider uploading and downloading separately. Still, provisions in the law leave several gray areas.

"The extent of the consumer's privilege to download and exchange music is terrifically unclear," says Jessica Litman, law professor at Wayne State University and author of Digital Copyright.

Does Downloading Infringe?

"The law is unambiguous," said Marybeth Peters, head of the U.S. Copyright Office at a Senate Judiciary Committee hearing in September. "Using peer-to-peer networks to copy or distribute copyrighted works without permission is infringement, and copyright owners have every right to invoke the power of the courts to combat such activity." But Litman notes that current law allows consumers to make copies of copyrighted music for noncommercial use. She cites the 1992 Home Audio Recording Act, which permits consumers to copy a digitally recorded work.

Under that act, "consumers cannot be sued for making noncommercial copies of recorded music, and digital music recorder manufacturers are required to incorporate technology that allows the recorders to make unlimited first-generation copies but prevents the recorders from making second-generation copies (a copy of the first-generation copy)," Litman says. The makers of digital music recorders and recording media (like audio CD-Rs) must pay a fee into a fund to be divided among copyright owners, composers, and performers. In exchange, copyright owners can't sue consumers or the makers of digital music recorders for copyright infringement.

Computer manufacturers, however, were exempt from incorporating technology preventing second-generation copies and paying any fees, because "people didn't know we were going to use them as home entertainment centers," Litman says.

Now, however, the music industry argues that copies of recorded music made on computers are infringements. According to Litman, in the 1999 RIAA vs. Diamond Multimedia case, the Ninth Circuit Court of Appeals held that it is legal for consumers to use their computers to make MP3 copies of recordings and transfer them to portable MP3 players.

However, in the Napster case, the Ninth District Court "declined to extend the rationale of the Diamond case to peer-to-peer file sharing," Litman says.

The issue remains rife with ambiguities. Among other things, the Ninth Circuit left the issue of "fair use" open to debate. Rather than rule on the consumer's liability, the court focused on the peer-to-peer software vendor who, the court decided, abets infringement of copyrighted material.

"Just to make everything more complicated, we have 12 circuit courts of appeals in the U.S., and none of them is required to follow the rulings of the others, so issues often remain unsettled even after one or two courts of appeal have spoken," Litman says. "That's why the Supreme Court often takes cases to resolve conflicts in the circuits."

What About 'Fair Use'?

Experts agree that downloading is outright reproduction, but copyright law makes exceptions for reproductions created under "fair use."

For some, fair use comes down to a simple question: "Is the downloaded song a substitute for the purchase of the song?" Experts say defendants who answer yes should consider settling out of court, because they have violated copyright law. Those who answer no, because they downloaded the tune to sample it for possible purchase, may have a case.

"Unless you've got the fair use defense, you'll have a hard time avoiding liability," says Peter Jaszi, who runs the Intellectual Property Law Clinic at American University.

Also, only an individual can invoke a fair use defense--it cannot apply to a group, Jaszi says. "You really can't generalize about whether file sharing as a whole is or isn't permissible on this basis," he adds.

If the courts consider downloading to be either fair use or within the legal shelter for noncommercial copying, then it is lawful reproduction, Litman says.

Other Defenses, Definitions

"My opinion is that fair use is the last resort," says Larry Feldman, an attorney representing several RIAA defendants. "It's like self-defense. You hope you never have to use it."

However, Feldman notes that copyright law defines copy as a physical copy, not a digital copy. "How can someone be infringing if someone's making a nonmaterial copy?" Feldman asks. "The word copy, as it's used in the context of the law, does not work in the digital world." He says he's surprised no one has yet raised that argument.

Feldman favors defenses outside the copyright realm. He contends that the subpoena system the RIAA uses bypasses judicial oversight, which is illegal under the Constitution. He argues the RIAA's search into the defendant's hard drive amounts to unreasonable search and seizure.

Distribution rights present another question in copyright cases.

Laws grant copyright owners the exclusive distribution rights. The RIAA argues that peer-to-peer users usurp those rights.

But the case isn't so clear-cut, and the RIAA faces some hurdles, say some experts.

"It's hard to argue that having songs on one's shared drive would constitute distribution. No court has ever dealt with this argument," Litman says.

Jaszi goes further. "It's hard to prove that [the files] have actually been accessed by others," he says. "The RIAA would disagree, and it's a respectable disagreement."

"When you put the [music files] on a shared network, you are offering them to millions of others," says Jonathan Lamy, an RIAA spokesperson.

Who Holds Copyright?

To bring a copyright lawsuit, creators of proprietary work must have registered their work with the copyright office. Jaszi says the recording industry registers most of its recorded music under a category called "works made for hire," which stipulates that the rights belong to someone other than the work's creator. In other words, the record company owns the copyright, not the songwriter or the performer.

This potentially opens new vulnerabilities for the recording industry. "I can imagine an aggressive defense that takes issue with the copyright ownership," Jaszi says.

In the music business, some artists no longer sign away the performance copyright to the record company. Some smaller, independent labels allow artists to own most or all rights. Many artists are calling for contract reform to give them copyright control over their work, says Michael Bracy, director of government relations at the Future of Music Coalition, an advocacy group for independent artists.

"The basic concept of copyright is to benefit creators and citizens, not the corporations who have built business models around aggregation of copyrights," Bracy says. He argues copyright laws benefit both the consumer and artist.

"There are decades of legal precedence which makes clear artists have the right to sell their services or copyright," says Matt Oppenheim, RIAA attorney. "And there are decades of precedence that record companies have the legal right to enforce those sound recordings."

Bracy says the parties are mistakenly focusing on short-term debates of lawsuits and copyright. "The big issue is, can technology become a democratization force?" he says.

"Artists are dramatically underrepresented in this debate," Bracy adds. "There are a number of established and independent artists who are exploring other business models." He says the music industry is becoming aware that the RIAA does not represent the artist.

"The RIAA doesn't represent performers, and they will admit it when push comes to shove," Feldman agrees.

Consumer's Options

So, if the RIAA sues you, should you go to trial and fight it out?

You actually stand a decent chance of prevailing, because the court is such a wild card, Litman says.

But since litigation costs are high, and the average person cannot match the deep pockets of the recording industry, "it's not economically sensible to go to trial with the RIAA," Litman says.

Still, a precedent has yet to be set on the issues of fair use by the consumer and whether uploading files to a shared folder is tantamount to distribution.

Feldman says some of his clients are so incensed that they want to push their cases to the Supreme Court.

Nearly all defendants sued by the RIAA have settled. In one exception, a Northern California woman sued the trade group on privacy violation.

Current copyright laws are inadequate for the digital age anyway, say some legal experts watching the controversy.

"Most of it was written more than a quarter century ago," Litman says. "We haven't sat down and grappled [with] what changes in the law make sense, given the Internet."

The real test will be what the courts say. Eventually, a consumer sued by the RIAA will take the case to the courtroom.

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