Sunday, December 2, 2007

Utah State University Student Targeted With Settlement Demand by the Recording Industry Association of America (RIAA)

A Utah State University (USU) student is being targeted by the Recording Industry Association of America (RIAA) for a settlement demand, even though he removed downloaded music when first notified of the problem by the University. Full story on KSL Channel 5 in Salt Lake.

The student is being accused of illegally making a song available to download. USU officials believe this is the first time a student at the school has faced legal action from the organization.

The school received a letter last week saying the RIAA would soon offer to settle with the student. If the student, who has not been named by school official, agrees to pay, he or she will not be sued. A settlement offer of about $3,000 is likely, according to Bob Bayn, information technology security team coordinator.

Bayn said he isn't sure why this student was targeted. "This student didn't do anything different than many others," Bayn said.

Each year, USU receives about 80 letters from the RIAA asking that students remove music files that they are offering through file-sharing software. Because USU is the official Internet service provider (ISP) for the students, the RIAA will contact USU first. Afterwards, USU then notifies the student, who is responsible for removing the file.

In September, Bayn was first notified of the student's violation by the RIAA. He notified the student, who then went through the normal procedure and believes the song was removed. However, despite this, the RIAA followed up with a second letter saying that a settlement offer (actually, a "demand") was coming. The story doesn't specify whether or not the removal efforts were successful; perhaps so many copies of the music were shared from this source that the RIAA may have decided that "financial punishment" was also warranted. The story also doesn't specify whether or not the student made money from the file sharing; if he did, that may be the reason why RIAA escalated their tactics.

"I was concerned that this could happen before it happened and am concerned that it could happen again," Bayn said. "There are a number of economical ways to get music online without having to buy a whole CD to get one tune that you like. The attraction of free versus cheap isn't worth the risk, it appears now." Bayn also said anyone offering music files online should stop, though the risk of getting a letter from the RIAA is small. But according to the RIAA's interpretation, when someone uses a peer-to-peer (PTP) file sharing program to share music, they automatically become viewed as a provider or distributor of free music.

After reading this story, I looked for a website operated by a law firm experienced in copyright law to provide some guidance as to the normal sequence of events attendant with RIAA legal action. I found the Saperlaw website, operated by the Chicago-based Saper Law Firm. In June 2007, the firm posted a short but informative overview of the typical process. Here's the most pertinent snippet, describing the typical steps:

What usually happens in RIAA lawsuits? As for the RIAA litigation process, there are generally 5 steps. [Ed. Note: Numbers 6 and 7 represent possible outcomes rather than "steps".]

1. The RIAA will file a mass lawsuit against a large number of unnamed downloaders or “John Does”;

2. An “ex parte” order for immediate discovery will requested and granted by the court;

3. The RIAA then sends subpoenas to the Internet Service Providers (ISP’s) demanding the identities of the “John Does”;

4. The ISP will then reveal the identities to the RIAA and may send a notice the individual;

5. The RIAA then proceeds to send cease and desist letter to the identified individuals along with a letter demanding a settlement; and

6. If the individuals don’t settle or the RIAA doesn’t hear from them, they will file an amendment to add the identified downloaders to the lawsuit or file separate lawsuit against that individual.

7. Then the individual will get another letter informing them that they are now named as defendant in a copyright infringement suit.

Depending upon the magnitude of the infraction, the cease-and-desist letter may or may NOT be acompanied by a settlement demand. However, children as young as 12 have been the recipients of settlement demands, and children as young as seven have been asked to provide in-person depositions in the presence of RIAA legal staff.

Saperlaw reminds its website viewers that the information presented there is for informational purposes only and cannot be considered "formal legal advice" under the law.

The typical settlement demand can be for a total of $3,000 to $4,000. However, RIAA preserves its rights to reopen future litigation for the same infraction, so it can be a one-sided settlement. The alternative to a settlement is a legal process which can be exponentially expensive, as a Minnesota resident Jammie Thomas found out in October 2007.

On October 5th, CNET News published the story of Jammie Thomas, who was ordered by a federal jury to pay $220,000 to six music labels. The RIAA sued Thomas for copyright infringement and unlike the vast majority of people sued by the group, Thomas chose not to settle her case for what is typically a few thousand dollars. Instead, she decided to defend herself in court. She strongly denied sharing music files. Nevertheless, a 12-person jury in Duluth, Minnesota found in favor of the RIAA. They ordered Thomas to pay $9,250 for each of the 24 songs she was accused of sharing.

Afterwards, Thomas complained that U.S. copyright laws are unjust and that the cost of proving her innocence was nearly impossible for someone in her financial situation. "It says in the Constitution that there should be no undue fines," Thomas told CNET "I was just fined (9,000 percent more) than the value of these songs."

"I was basically forced into a situation where I had to prove a negative," Thomas continued. "How do you prove that your IP address was spoofed or hacked. If I could afford an FBI analyst I'm sure it could have been proven. But I don't have the money."

At the time of the story, Thomas, the mother of two sons, ages 11 and 13, hadn't yet decided whether to file an appeal; but on October 8th, CNET News reported that Thomas did indeed file an appeal. Specifically, she wants to challenge the jury's finding that making songs available online violates copyright. Her objective is to force the RIAA to actually prove that a file was shared.

On the question of an appeal, Ira Rothken, who has defended dozens of companies accused of encouraging copyright violations, noted that the jury made its decision without finding that Thomas had actually shared files. Jurors ruled against Thomas based on the fact that she had only made files available.

"That may be a basis for an appeal," said Rothken, who is currently defending TorrentSpy, a search engine accused by the movie industry of violating copyright. "There are lots of people who theoretically make things available unintentionally. It happens all the time, whenever you deep link and there is something out there that you are not aware of. Availability alone may not be enough to show copyright infringement."

Commentary: One of the big difficulties here is how to define and quantify "intellectual" property". Unlike real property, which one can see, hold, and quantify, intellectual property is a bit more difficult. What specifically needs to be protected? What constitutes "protection". What is a practical and defensible definition of "harm"?

In another CNET News article posted on October 5th, Declan McCullagh, who agreed with the verdict but thought the penalty too high, identifies the problem. After decades of special-interest lobbying by large holders of intellectual property rights, U.S. copyright law has spiraled out of control. It's been transformed from limited protections of authors' rights for 14 years to a juggernaut with criminal enforcement, sky-high penalties, and up to 120 years of legal protection.

McCullagh also points out that copyright law has become way too verbose; it's now swollen to an unbelievable 200 pages long. It's complex, incomprehensible, designed to favor large copyright holders over defendants, and thoroughly out of touch with reality. But while the general public (reasonably) can't keep track of the minutiae of proposals to expand copyright law, RIAA lobbyists can devote 100 percent of their time to the job. What happens is that copyright law continues to clamp down on Americans, inexorably, like a ratchet.

I have no qualms about artists of different disciplines protecting their content against people who would appropriate it and make money without sharing a part of the profits with the originators. That's how the concept of "residuals" originated. But there must be realistic time limits; to copyright something for 120 years by far exceeds the original intent and purpose of the law. And there must be a distinction made between those who actually make a profit from the copyright violation, versus those who don't. "Fair use" provisions ought to be strengthened, particularly for those who don't make money off a "copyright violation". These changes would actually improve the public perception of the industry as a whole.


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