Hey, I'm gonna get you too
Another one bites the dust
Written by John Deacon
Performed by Queen
Recorded on The Game (EMI-Electra, 1980)
The RIAA and its IFPI sister organizations worldwide has sued tens of thousands of people alleged to have shared music on p2p networks. During this lesson, we'll study the process and substance of these sorts of cases, including how file sharers were identified, when and where suits were filed, why they were almost always settled and what might happen if they're defended. Although the torrent of litigation has subsided with a change in legal tactics, the issues are nonetheless fascinating today than they were 5 years ago. Indeed, several cases are still simmering. Plus, while the music industry has changed its tune, some movie studios are just gearing up with p2p file sharing cases in the United States and even here in Canada.
Outside the U.S., courts have taken another view about the disclosure of personal information in circumstances like this. The most famous case is probably BMG Canada Inc. v. John Doe , but the Canadian courts aren't alone; Dutch courts reached similar conclusions around the same time. And a very noteworthy development in the EU occurred at the end of January '08 when the ECJ ruled on a Spanish case (Promusicae v Telefonica) that EU law does not require ISPs to hand over subscribers' personal information to copyright owners claiming infringement. If you want to explore the European approach in more detail, you'll have to learn about the E.C. E-Commerce Directive 2000/31, Art. 15.
In probably the most famous cases of all, RIAA v. Thomas, a Minnesota woman was ordered to pay $2.2 million for sharing 24 tracks. In the long saga of the case (involving at least 3, and what might become 4, re-trials), judges and juries have gone back and forth on multi-million dollar awards and then judicial reductions. At one point, in an ususual but understandable about-face, the judge in that case had actually set aside the decision almost a year after it was issued because of the realization that simply offering to share files isn't illegal in the US ... infringement of the distrubution right requires proof that someone actually downloaded an infringing file.
I'd like to weave two key questions throughout this lesson:
First, do you think these lawsuits are a justifiable use of judicial resources. It is an abuse of process, or simply copyright holders cleverly exercising all of the procedures available to them? If you feel that private parties are entitled to use the public justice system to these ends, would you feel the same way about the allocation of more state resources to combat p2p file sharing? That is, what role, if any, should the criminal law play in this area? Probably the best case to launch a discussion of that issue, and the last case we'll tackle this week, is the Hong Kong SAR criminal proceedings involving bittorrent seeder Chan Nai-ming. His case was the precursor to Kim Dotcom's legal troubles, which we'll talk about next week.
Second, if you think these lawsuits are a problem, what should be done about it? Here, I want to talk tactics. There was a fair bit of discussion among cyberlaw professors and especially clinical educators (i.e. the professors and lawyers who work in public interest clinics, like CIPPIC) about how to handle these kinds of files. Obviously there are broad public interest principles to defend. But given the difficulty defendants have had in this area, is it really acting in the best interests of your client to take her/his case to court? This is the ethical dilemma debated when a highly regarded professor, Charles Nesson, unsuccessfully defended Joel Tenenbaum. The result was a damage award against Joel of $675,000. Here's a report and some background on that to facilitate discussion. See also here for more context, and here and here for the latest news about the costs Nesson is now on the hook for, and why the Obama administration supports such astronomical damage awards. And here's the latest on that particular case, as of last summer.