Wednesday, October 05, 2005

"Sue 'em all" by John Hermann

p2pnet has published this interesting and informative article by John Hermann, the Berkley, Michigan, attorney representing many RIAA defendants in Detroit federal court:

Sue 'em all
By John Hermann

The recording industry and its trade association, the RIAA (Recording Industry Association of America) are in their second year of targeting users of peer-to–peer software programs under the guise of stamping out copyright infringement. The lawsuits are pursued in essentially two phases. First, The RIAA employs a team so called “investigators” who locate alleged infringers using the same software programs that they describe as being specifically designed for “online media distribution.”

As with all peer-to-peer programs, the peer-to-peer programs simply allows for the exchange of information, not all of which is copyrighted. Possible uses include such benign examples a photos among family members, research material, personal interest items.

Certain sound recordings and/or written items which are beyond the limitations of the copyright protection may also be legitimately exchanged such as works of Beethoven , Dickens, etc.

Notwithstanding the number of legitimate applications, the industry has attempted to target all peer-to-peer software systems as being primarily used to facilitate the exchange of copyrighted material.

Unfortunately, the methods locating potential infringers fail to adequately distinguish those who are, in fact, infringers from other individuals who have no association with potential infringing activity.

Typically, the RIAA minions use the very programs they claim are “vehicles for infringement” to locate other individuals either hosting or seeking files which appear to be copyrighted materials. By conducting a search or viewing another peer member’s shared list, the investigators are able to locate files which they believe constitute protected works.

For instance, if the investigative outfit were to view another peer member’s shared file bearing the name Madonna – Like A Virgin, they typically assumethe file is a audio, mp3 or WVA version of Madonna’s copyrighted sound recording . Rather than examining the contents of the file to verify that it is, in fact, a Madonna tune, the investigator simply assume it is because it's stored on a peer system and because it bears a similar identification to a popular artist.

Many of the early peer systems (ie, Kazaa, LimeWire, etc) have defaults that make it easy to identify unsophisticated infringers who may not even know what they're doing is potentially infringing.

These defaults enable other individuals, including the RIAA, to view and/or exchange all of the materials within the host's shared file. Because allowing others access to copyrighted material is also a violation of the copyright act, downloading isn't required for someone to be liable under the act. On top of that, because the potential damages for infringement are statutorily defined, based on the number of materials “exchanged,” a person could have only downloaded a couple of songs and yet still be liable for thousands of dollars in damages for each and every song that was in their folder because they're allegedly being offered for exchange.

The irony of targeting early peer system users is that the serious offenders are smart enough to change the default settings so as to mask their file hosting, or use more recent peer systems that shield the host files from view.

The naïve and uninformed, meanwhile, are easy prey for the RIAA.

Complete Text of Article.


Anonymous said...

"Because allowing others access to copyrighted material is also a violation of the copyright act, downloading isn't required for someone to be liable under the act."

You claim otherwise. Why would that attorney take the RIAA's position in a public article? Now he can't take your position in court.

Anonymous said...

It would be interesting to see this point clarified. It seems to me that, if allowing access to copyrighted information is itself an offense, then leaving a CD in an unguarded place would be grounds for a lawsuit.

Yeah, one could argue intent. But you could reasonably argue that, given the price of CD's these days, a reasonable person wouldn't leave one lying around unless one intended to share.

What a brave new world multi-billion-dollar companies are forging.