Campus Chronicle

Issue date: 10/25/03 Section: Legal

As anyone who watches the news, uses the Internet or simply reads the newspaper on a semi-weekly basis knows, the Recording Industry Association of America has recently launched a controversial anti-piracy campaign that involves suing massive numbers of everyday music lovers.

Specifically, the RIAA is a trade organization representing most of the major music recording companies. It is going after peer-to-peer (P2P) file sharers (such as KaZaA and Limewire users) under the legal theory of copyright infringement.

To date, approximately 2,000 everyday people have been subpoenaed, including the young, the old, the rich and the poor. As one professor of mine put it, "the RIAA may be winning in the legal courtroom, but they are certainly losing in the courtroom of public opinion."

The U.S. copyright law accords protection to "original works of authorship fixed in any tangible medium of expression" (17 U.S.C. §102). Pursuant to 17 U.S.C. §106, this protection awards to the author of copyrightable works certain exclusive rights, including the right of reproduction, distribution and public performance.

However, even where it is undisputed that a person copied a work, the person may not be liable for copyright infringement so long as his or her use falls into one of the lawful exemptions to the owner's otherwise exclusive rights. 17 U.S.C. §§ 107-121. One of the most widely argued and applicable exemptions is what is known as the "fair use" doctrine, codified at 17 U.S.C. §107.

The fair use exemption provides that using copyrighted material for the purpose of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright. 17 U.S.C. §107. On the issue of whether a particular use falls within the fair use exemption, Courts have held that it requires a case-by-case analysis rather than a bright-line test. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985)).

In determining whether a work falls within the scope of the fair use exemption, the court must consider the four statutory factors of 17 U.S.C. §107:



(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.



The problem with the RIAA's case is that there is no such thing as a "case-by-case" basis. The lawsuits do not decipher between individuals using P2P to share ideas for educational purposes or using the music they are downloading for parodist or scholastic reasons.

Rather, the RIAA finds the subjects of their subpoenas with the help of an automated software robot (bot).

The bot's sole purpose is to review enormous amounts of data and note any "suspicious" files (i.e. files on the hard drives of personal computers of individuals that appear to contain copies of copyrighted music). The bot then automatically generates lists (and sometimes notices), which are sent to the relevant Internet Service Providers of the alleged infringers by number, not name.

Thus, we encounter the second problem with the RIAA's lawsuit, which is more procedural in nature. Pursuant to the controversial subpoena provisions of the Digital Millennium Copyright Act, once the bot identifies a "suspicious" file and the relevant ISP is notified, the copyright owner may next request that a clerk of a U.S. district court issue a subpoena to that user's ISP, requiring the ISP to disclose the user's identity. 17 U.S.C. § 512 (h)(1).

Interestingly enough, in requesting the subpoena, there is no requirement that the copyright owner conduct "due diligence" or consider whether the alleged infringing activity or speech is in the public domain or protected under the fair use doctrine. Arista Records, Inc. v. MP3Board, Inc., No. 00CIV-4660 (SHS), 2002 WL 1997918, at 15 (S.D.N.Y. Aug. 29, 2002).

Rather, the only threshold standard the plaintiff must meet is that the infringement claim be made in "good faith belief." 17 U.S.C § 512 (c). Perhaps because there is no judge overseeing the process or because there is no investigation required, many of the RIAA's subpoenas are being challenged on procedural grounds. See Verizon Internet Servs. Inc. v. Recording Industry Assoc. of America, 240 F. Supp. 2d 24, 38 n. 11 (D.D.C. 2003); Recording Industry Assoc. of America v. MIT, Misc. Act. No. 1:03-MS-00265 (D.D.C. 2003).

Moreover, there is no meaningful opportunity for the alleged infringer to object to the subpoena due especially to the expedited nature of the Section 512(h) subpoena mechanism. See Amicae Brief In Re: Verizon Internet Servs., Inc., Subpoena Enforcement Matter, Recording Industry Assoc. of America v. Verizon Internet Servs., Nos. 03-7015 (D.D.C. 2003).

Let us consider for a moment hypothetical situations where the subject of these practically machine-generated subpoenas is a John or Jane Doe using the music they share online for totally lawful purposes. For example, a math teacher who is trying to motivate students to learn through unconventional means, such as playing a Beatles song to teach students to add and multiply by beats instead of numbers, or a social studies teacher playing the Peter, Paul & Mary song, "Where Have All The Flowers Gone" to compare the political controversy surrounding the Vietnam War to the recent war in Iraq. Take for a third example, scientists using the P2P systems to trade data related to discovering a cure for fatal diseases.

One can only imagine the surprise of these individuals who receive subpoena from the RIAA when it is their understanding - and a correct one at that - that certain uses are exempt from copyright liability. Let us briefly consider the four fair-use factors and why they lead to such a conclusion. First, when analyzing the first factor, the court considers whether the copying of the work is for a non-profit or commercial use and whether the work has a transformative value. Sony Corp. of America v. Universal City Studios, 659 F.2d 963, 970 (9th Cir. 1981). Thus, even if the work itself is of commercial nature, it may be considered fair use where the use is transformative, meaning that the use "employ[s] the quoted matter in a different manner or for a different purpose from the original."

In instances like the above hypotheticals, however, the commercial need to be addressed as copying for educational purposes is lawful fair use. 17 U.S.C. § 107. Cf. Williams & Wilkins v. United States, 420 U.S. 376 (1975) (Court found in favor of fair use where a non-profit, government organization made unauthorized copies but used them solely for researching pertinent health issues to benefit society).

The second statutory factor measures the "nature of the copyrighted work." Courts have generally held that "the scope of fair use is greater with respect to factual than nonfactual works." New Era Publications Int'l ApS v. Henry Holt & Co., 884 F.2d 659 (2nd Cir. 1989). For example, fair use will apply more to biographical works, reviews and criticisms, which are fact-based, than fictional works, which are largely subjective in nature. Generally, photographs and musical works are seen as fantasy and entertainment and therefore warrant greater protection than if they were factual in nature. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1990). Although viewed one way, the music involved in this case are wholly non-factual, when viewed another way, these songs are historical documents filled with political, social and cultural data and are thus wholly factual alternative textbooks.

The third factor evaluates the "amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. §107. Although a P2P file sharer copies songs in their entirety, doing so may not be fatal to a finding of fair use. In Sony Corp. of America v. Universal City Studios, the Supreme Court held that unauthorized copying of an entire audiovisual work may be a "fair use" of that work. 464 U.S. 417 (1984). In Kelly v. Ariba Soft Corp., the court held that unauthorized copying of entire photographs to use as thumbnail images on an unrelated and even competing Web site was within the scope of fair use. 280 F. 3d 934 (9th Cir. 2002).

Additionally, in both Sega Enterprises Ltd. v. Acolade, Inc., 977 F.2d 1510 (9th Cir. 1993), and Atari Games, Inc. v. Nintendo of America, Inc., 975 F. 2d 832 (Fed. Cir. 1992), federal appellate courts carved out substantial "fair use" exemptions for "reverse engineering." Although reverse engineering by means of decompilation necessarily involves copying of software code, the courts have allowed this practice when it is used to produce a higher version of the software program.

Essentially, I am making the same argument here. Where a comedian downloads a song in its entirety to determine which portions to incorporate into his show or a teacher downloads songs in its entirety to determine which portions to use in his lecture, they should not be charged with copyright liability. They are not playing the songs in their entirety, but instead need to have the entire version to use in writing their respective lessons and acts.

The fourth factor examines the "effect on the market for copyrighted work." 17 U.S.C. §107. In order to prevail under the fourth factor, the plaintiff must show that if the "challenged use were to become widespread, it would adversely affect the potential market for the copyrighted work." Sony Corp., 464 U.S. at 451 (1984).

Although the RIAA's record sales may have allegedly decreased as a result of P2P sharing, the evidence offered so far does not separate lawful fair uses such as those described above from other forms of unlawful file sharing. If anything, Mr. Doe's use has a positive effect on the copyright owners of the files, because the students may be motivated to buy concert tickets or CDs of artists that Mr. Doe uses in his lessons, artists to whom they would otherwise not be exposed.

Moreover, in not separating lawful uses from infringing uses, it is difficult to ascertain what the actual affect on the market is.

Before leaving you to your own conclusions, I will simply say that the technology involved in the dispute at hand is far too complex and still unknown to make sweeping generalizations about what is and what should be legal. Not only do I think that statutorily-protected uses should be treated differently than non-lawful uses, but I also think that it is wrong to subpoena and sue individuals based on provisions of the DMCA, because the DMCA is a new body of law still hotly debated and subject to change.

Thus, it is my contention that the facts and circumstances of each John/Jane Doe, regardless of how common or unique they may be, should be debated and considered in evaluating relevant legislation, especially in determining the outcome of RIAA litigation.

Related Links:
RIAA
BoycottRIAA.com
Napster - now a for-pay service
Kazaa Lite
Morpheus
Grokster

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