Music Maestro - A Contrarian's View on the Legality of File Sharing Over P2P Networks - Part 1 of 2
As reported by the New York Times:
Thus another P2P network caves in to the strong-arm litigation tactics of the music industry and buys in to the starry-eye-inducing mega-profits to be gained by joining the anti-consumer monopoly which is the music distribution industry.
But in all the hoopla a serious disconnect has been overlooked between what companies such as Kazaa, Napster, and Grokster can and can not do with their software, and what individual consumers may be permitted to do with each other.
To what extent, if any, does the sharing of copyrighted files subject the individual sharer to liability for copyright infringement. This question has not been squarely answered except in a very few decisions of the Courts. Those decisions have unfortunately relied upon legal concepts applicable to "for-profit" software companies, to determine the liability of individual consumers. In my very humble personal opinion, those decisions are in error because the standards applicable to determine what individuals may do vary considerable from those applicable to companies looking to make a profit off of their actions.
The RIAA et al. have done such a good job of PR and of frightening people with potentially crippling lawsuits, that very few people even question whether sharing files constitutes infringement. Remarkably, the media industry has succeeded through PR in making millions of people believe they are "stealing" or "criminals" for doing something that most Americans and lawmakers have taken for granted is perfectly legal for generations.
Individuals have made and shared copies of recordings for decades from whatever medium they have been produced and no one has ever seriously questioned whether such copying was free from claims of infringement. Long before the advent of PC's the recording industry complained that 100's of millions of copies of copyrighted materials were being shared by individuals. Yet Congress has steadfastly refused to impose liability for the non-commercial copying of copyrighted materials by individual consumers. Indeed in 1992 Congress passed the Audio Home Recording Act, which provides that:
Liability for copyright infringement is subject to what is known as the "fair use doctrine" - codified at 17 U.S.C. § 107 (2004) which provides that:
Americans generally, and Congress specifically, has always deemed the non-commercial sharing of copyrighted materials to be a form of fair use. This general understanding was so deeply engrained in the mind of the average citizen, and the legal community that until the advent of P2P networks, not a single suit for civil liability had ever been brought against a consumer despite the recognition that 100's of millions of copyrighted songs and albums were being routinely copied (primarily on audio tape) and shared between friends and family members.
The extensive hype generated by the recording industry in the last few years has convinced an entirely too malleable public that suddenly millions of ordinary consumers are criminals. However, there has not been a single statute enacted, and until 2005 not a single court had ever held that the non-commercial sharing of copyrighted media constituted culpable infringement.
MGM v. Grokster, decided last year by the Supreme Court did not hold that non-commercial file-sharing by consumers constituted infringement (as a great many news reports, editorials and other PR have implied). The Court held only that a distributor of P2P software can be held liable if it advertises that the intent and purpose of its software is to enable copyright infringement. That is not the same thing as the sharing of media between two ordinary consumers, not by a longshot.
One or two decisions have been handed down since Grokster by lower courts that have found individual consumers are liabile. These cases have been, in my humble personal opinion, incorrectly decided. The few courts that have held individuals liable have wrongly applied the law applicable to companies like Grokster, to the sharing of songs between individual consumers. Effectively, these courts have turned millions of innocent consumers into criminals over night, despite the fact that (i) no statute clearly provides for such liability and (ii) no such liability had ever been anticipated by Congress, consumers or the music industry itself. An historic status quo that has continued since the advent of printed music, has been changed by judicial fiat.
This is the worst kind of "legislating" from the bench - If Congress had intended to turn millions of American consumers into thieves, it would have done so. Instead, however, Congress passed the Audio Home Recording Act to ensure that historic understandings regarding music copying and sharing between consumers for non-commercial purposes would remain intact in the digital era (unfortunately, several (computer illiterate) courts have adopted the rationale that a personal computer is not a "digital recording device.") Courts ought to be loathe to enact such far-reaching changes in the law in the absence of Congressional intent that the law be changed (or a valid Constitutional challenge).
An exceptionally well considered legal analysis is the brief prepared by Prof. J. Glynn Lunney, Jr. of the Tulane Univ. School of Law. and submitted in the Grokster case on behalf of several professors of copyright law (available on the web site of the Electronic Frontier Foundation). It is well worth the read. I won't repeat his arguments here. If you are interested, read the brief.
None of this means that the RIAA will not try to sue you if they catch you. What it means is that there is a good legal argument that the non-commercial trading of media files by the use of P2P software by ordinary consumers does not necessarily constitute copyright infringement. The RIAA and other media conglomerates have used their financial bully pulpit to frighten us and make us believe otherwise, because those who fight for consumers are underfunded and the legal arguments are not easily reduced to sound-bites.
Our response should not be to live in fear, or to seek technological fixes to hide our identities. Our response should be to stand up for our rights. To remind ourselves that our actions can not be criminalized by a media campaign but only by laws properly enacted by Congress.
I suppose I ought to provide a disclaimer here. I am a lawyer, but I am not trained in copyright law. The foregoing constitutes personal opinion and is in the nature of an editorial. It should not be taken as legal advice. The issues are complex and there is room for contrary arguments. You should obviously consult your own legal counsel if you have serious concerns over the legality of your P2P usage.
In some countries intellectual property issues are dealt with by the civil law, in some countries they are still a matter of common law, and in some they are a matter of criminal law. In some the issues may be resolved by a mix of civil and criminal liability. This post only relates to U.S. civil law.
Prof. Lunney's brief (supra) contains a useful list of countries in which file-sharing by consumers for non-commercial purposes may be considered legal, and that list is worth looking at if you are not in the U.S. However, that list is not by any means complete and, if you are out of the U.S. you should absolutely seek counsel from a qualified representative of the legal profession in your locality.
The music industry and Hollywood movie studios said Thursday that they had settled lawsuits against a longtime nemesis, the owner of the digital file-sharing network Kazaa, which will try to transform itself into a legitimate online distributor of films and music.Record and Movie Industries Reach a Settlement With Kazaa, New York Times (July 28, 2006).
Sharman Networks, a privately held company that is incorporated in Vanuatu and operates Kazaa from Australia, agreed to pay $115 million to the major record companies and movie studios, which had accused Kazaa of aiding the illegal copying of music on the Internet.
* * * *
The music industry federation said that Sharman had agreed to license music from the four major recording companies — Universal Music Group, Sony BMG, Warner Music and the EMI Group — that own the vast majority of music copyrights.
Thus another P2P network caves in to the strong-arm litigation tactics of the music industry and buys in to the starry-eye-inducing mega-profits to be gained by joining the anti-consumer monopoly which is the music distribution industry.
But in all the hoopla a serious disconnect has been overlooked between what companies such as Kazaa, Napster, and Grokster can and can not do with their software, and what individual consumers may be permitted to do with each other.
To what extent, if any, does the sharing of copyrighted files subject the individual sharer to liability for copyright infringement. This question has not been squarely answered except in a very few decisions of the Courts. Those decisions have unfortunately relied upon legal concepts applicable to "for-profit" software companies, to determine the liability of individual consumers. In my very humble personal opinion, those decisions are in error because the standards applicable to determine what individuals may do vary considerable from those applicable to companies looking to make a profit off of their actions.
The RIAA et al. have done such a good job of PR and of frightening people with potentially crippling lawsuits, that very few people even question whether sharing files constitutes infringement. Remarkably, the media industry has succeeded through PR in making millions of people believe they are "stealing" or "criminals" for doing something that most Americans and lawmakers have taken for granted is perfectly legal for generations.
Individuals have made and shared copies of recordings for decades from whatever medium they have been produced and no one has ever seriously questioned whether such copying was free from claims of infringement. Long before the advent of PC's the recording industry complained that 100's of millions of copies of copyrighted materials were being shared by individuals. Yet Congress has steadfastly refused to impose liability for the non-commercial copying of copyrighted materials by individual consumers. Indeed in 1992 Congress passed the Audio Home Recording Act, which provides that:
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.Pub. L. No. 563, § 2, 102d Cong., 2d Sess. (1992), codified at 17 U.S.C. § 1008 (2004)
Liability for copyright infringement is subject to what is known as the "fair use doctrine" - codified at 17 U.S.C. § 107 (2004) which provides that:
the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - (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 copyrighted 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.In other words, an individual can not be held liable for infringement of copyright if the individual usage is considered fair after considering all relevant factors, including, but not limited to, the four listed above.
Americans generally, and Congress specifically, has always deemed the non-commercial sharing of copyrighted materials to be a form of fair use. This general understanding was so deeply engrained in the mind of the average citizen, and the legal community that until the advent of P2P networks, not a single suit for civil liability had ever been brought against a consumer despite the recognition that 100's of millions of copyrighted songs and albums were being routinely copied (primarily on audio tape) and shared between friends and family members.
The extensive hype generated by the recording industry in the last few years has convinced an entirely too malleable public that suddenly millions of ordinary consumers are criminals. However, there has not been a single statute enacted, and until 2005 not a single court had ever held that the non-commercial sharing of copyrighted media constituted culpable infringement.
MGM v. Grokster, decided last year by the Supreme Court did not hold that non-commercial file-sharing by consumers constituted infringement (as a great many news reports, editorials and other PR have implied). The Court held only that a distributor of P2P software can be held liable if it advertises that the intent and purpose of its software is to enable copyright infringement. That is not the same thing as the sharing of media between two ordinary consumers, not by a longshot.
One or two decisions have been handed down since Grokster by lower courts that have found individual consumers are liabile. These cases have been, in my humble personal opinion, incorrectly decided. The few courts that have held individuals liable have wrongly applied the law applicable to companies like Grokster, to the sharing of songs between individual consumers. Effectively, these courts have turned millions of innocent consumers into criminals over night, despite the fact that (i) no statute clearly provides for such liability and (ii) no such liability had ever been anticipated by Congress, consumers or the music industry itself. An historic status quo that has continued since the advent of printed music, has been changed by judicial fiat.
This is the worst kind of "legislating" from the bench - If Congress had intended to turn millions of American consumers into thieves, it would have done so. Instead, however, Congress passed the Audio Home Recording Act to ensure that historic understandings regarding music copying and sharing between consumers for non-commercial purposes would remain intact in the digital era (unfortunately, several (computer illiterate) courts have adopted the rationale that a personal computer is not a "digital recording device.") Courts ought to be loathe to enact such far-reaching changes in the law in the absence of Congressional intent that the law be changed (or a valid Constitutional challenge).
An exceptionally well considered legal analysis is the brief prepared by Prof. J. Glynn Lunney, Jr. of the Tulane Univ. School of Law. and submitted in the Grokster case on behalf of several professors of copyright law (available on the web site of the Electronic Frontier Foundation). It is well worth the read. I won't repeat his arguments here. If you are interested, read the brief.
None of this means that the RIAA will not try to sue you if they catch you. What it means is that there is a good legal argument that the non-commercial trading of media files by the use of P2P software by ordinary consumers does not necessarily constitute copyright infringement. The RIAA and other media conglomerates have used their financial bully pulpit to frighten us and make us believe otherwise, because those who fight for consumers are underfunded and the legal arguments are not easily reduced to sound-bites.
Our response should not be to live in fear, or to seek technological fixes to hide our identities. Our response should be to stand up for our rights. To remind ourselves that our actions can not be criminalized by a media campaign but only by laws properly enacted by Congress.
I suppose I ought to provide a disclaimer here. I am a lawyer, but I am not trained in copyright law. The foregoing constitutes personal opinion and is in the nature of an editorial. It should not be taken as legal advice. The issues are complex and there is room for contrary arguments. You should obviously consult your own legal counsel if you have serious concerns over the legality of your P2P usage.
In some countries intellectual property issues are dealt with by the civil law, in some countries they are still a matter of common law, and in some they are a matter of criminal law. In some the issues may be resolved by a mix of civil and criminal liability. This post only relates to U.S. civil law.
Prof. Lunney's brief (supra) contains a useful list of countries in which file-sharing by consumers for non-commercial purposes may be considered legal, and that list is worth looking at if you are not in the U.S. However, that list is not by any means complete and, if you are out of the U.S. you should absolutely seek counsel from a qualified representative of the legal profession in your locality.
posted by BuddhistAttorney | 2:34 AM
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