Peer To Peer Filesharing on Campus: Selling Slinky Dresses, Sleazy Massage Parlors, and the Sony Betamax

Hey! How come there is no outline on this in the notebook? Because, Im a Mercenary, and this is WAR! Hey! How come there is no outline on this in the notebook? Because, Im a Mercenary, and this is WAR!

Who is at War? Copyright Owners vs. Pirates? Copyright Owners vs. Telecommunications? Code vs. Law? Copyright Owners vs. Colleges and Universities? Copyright Owners vs. Pirates? Copyright Owners vs. Telecommunications? Code vs. Law? Copyright Owners vs. Colleges and Universities?

Copyright Owners v. Pirates This a riot in the streets –Charles Nesson –Howard Knopf Its a Movement –As the largest grassroots effort in the history of the world, file trading is essentially the average persons way of saying we dont agree with the status quo. –Richard Menta This a riot in the streets –Charles Nesson –Howard Knopf Its a Movement –As the largest grassroots effort in the history of the world, file trading is essentially the average persons way of saying we dont agree with the status quo. –Richard Menta

Copyright Owners v. Pirates The REVOLUTION has started! –Whats happening with global, peer-to-peer networking is not altogether different rom what happened when the American colonists realized they were poorly served by the British Crown: The colonists were obliged to cast off that power and develop an economy better suited to their new environment…. No law can be successfully imposed on a huge population that does not morally support it and possesses easy means for its invisible evasion. --John Perry Barlow The REVOLUTION has started! –Whats happening with global, peer-to-peer networking is not altogether different rom what happened when the American colonists realized they were poorly served by the British Crown: The colonists were obliged to cast off that power and develop an economy better suited to their new environment…. No law can be successfully imposed on a huge population that does not morally support it and possesses easy means for its invisible evasion. --John Perry Barlow

Copyright Owners v. Pirates This isnt a revolution; its Armageddon –It's getting clear – alarmingly clear, I might add – that we are in the midst of the possibility of Armageddon. – Jack Valenti on file sharing This isnt a revolution; its Armageddon –It's getting clear – alarmingly clear, I might add – that we are in the midst of the possibility of Armageddon. – Jack Valenti on file sharing

Copyright Owners v. Telecom Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): The essence of [the RIAAs] position is that once they make a filing with the court and pay their $25, due process goes out the window. I believe it will be inevitable that the Internet stalker, the child molester, the abusive spouse or some other wacko who uses the Internet is going to[use the subpoena power for evil purposes]. –James Ellis, general counsel of SBC Communications Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): The essence of [the RIAAs] position is that once they make a filing with the court and pay their $25, due process goes out the window. I believe it will be inevitable that the Internet stalker, the child molester, the abusive spouse or some other wacko who uses the Internet is going to[use the subpoena power for evil purposes]. –James Ellis, general counsel of SBC Communications

Copyright Owners v. Telecom Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): I cannot in good conscience support any tool that can be used by pornographers, and potentially even more distasteful actors to collect the identifying information of Americans, especially our children. –Sen. Sam Brownback (R-Kan.), who introduced bill that would require RIAA to file court case before issuing subpoena to get users identity Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): I cannot in good conscience support any tool that can be used by pornographers, and potentially even more distasteful actors to collect the identifying information of Americans, especially our children. –Sen. Sam Brownback (R-Kan.), who introduced bill that would require RIAA to file court case before issuing subpoena to get users identity

Copyright Owners v. Telecom Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): Broadband ISPs like Verizon and SBC have done nothing to educate consumers about the dangers of piracy. They have used a combination of overt and subtle marketing strategies to [encourage consumers] to sign up for DSL so they can get music for free and not have to go to the record store anymore. –Cary Sherman, president of RIAA Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): Broadband ISPs like Verizon and SBC have done nothing to educate consumers about the dangers of piracy. They have used a combination of overt and subtle marketing strategies to [encourage consumers] to sign up for DSL so they can get music for free and not have to go to the record store anymore. –Cary Sherman, president of RIAA

Copyright Owners v. Telecom Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): Verizon General Counsel William Barr shoots back at Shermans charges, referring to the RIAAs lawsuit 2 weeks earlier against Brianna LaHara, a 12-yr-old honors student in New York: –The recording industry has failed to embrace the Internet as a distribution medium, opting instead to fight piracy by declaring a jihad against 12-year- old girls. Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): Verizon General Counsel William Barr shoots back at Shermans charges, referring to the RIAAs lawsuit 2 weeks earlier against Brianna LaHara, a 12-yr-old honors student in New York: –The recording industry has failed to embrace the Internet as a distribution medium, opting instead to fight piracy by declaring a jihad against 12-year- old girls.

Copyright Owners v. Telecom Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): Sen. Barbara Boxer (D-Calif) shoots back at Verizons William Barr, brandishing a Verizon DSL brochure that she said touted file-sharing networks as an attractive feature for broadband users: –It seems to me that youre trying to protect the privacy of theft. Thats what youre about. Senate Commerce Committee Hg on DMCA subpoenas (Sept. 2003): Sen. Barbara Boxer (D-Calif) shoots back at Verizons William Barr, brandishing a Verizon DSL brochure that she said touted file-sharing networks as an attractive feature for broadband users: –It seems to me that youre trying to protect the privacy of theft. Thats what youre about.

Copyright owners v. Colleges and Universities Oct. 3, 2002 letter to [University/College President] from representatives of Americas creative community: We are concerned that an increasing and significant number of students are using university networks to engage in online piracy of copyrighted creative works. We believe there must be a substantial effort, both disciplined and continuous, to bring this piracy under control. Oct. 3, 2002 letter to [University/College President] from representatives of Americas creative community: We are concerned that an increasing and significant number of students are using university networks to engage in online piracy of copyrighted creative works. We believe there must be a substantial effort, both disciplined and continuous, to bring this piracy under control.

The students and other users of your schools network who upload and download infringing copyrighted works without permission of the owners are violating Federal copyright law. Theft is a harsh word, but that it is, pure and simple. As Dep. Asst. Atty General John Malcolm recently stated, Stealing is stealing, whether its done with sleight of hand by sticking something in a pocket or its done with the click of a mouse. It is no different from walking into the campus bookstore and in a clandestine manner walking out with a textbook without paying for it.

Sheldon Steinbach, General Counsel of the American Council on Education, said of such illegal file sharing activities: Why is this issue important to higher education institutions? First, educational institutions are in the business of forming students minds. A fundamental part of this formation is teaching about ethics, personal responsibility, and respect for the rule of law. Colleges and universities should not be in the business of condoning or promoting unlawful activities. We ask that you forward copies of this letter to your General Counsel/Chief Legal Officer, as well as your Director of Information Technology/Information Systems, your Chief Financial Officer, and your Dean of Student Affairs.

We urge you to adopt and implement policies that –Inform students of their moral and legal responsibilities to respect [our] rights –Specifiy what practices are, and are not acceptable on your schools network –Monitor compliance –Impose effective remedies against violators Students must know that if they pirate copyrighted works they are subject to legal liability.

EPIC Letter to College Presidents [T]hese issues require a circumspect analysis of the impact of network monitoring on privacy and academic freedom. While network monitoring is appropriate for certain purposes such as security and bandwidth management, the surveillance of individuals' Internet communications implicates important rights, and raises questions about the appropriate role of higher education institutions in policing private behavior.

Copyright owners v. Colleges and Universities Oct. 8, 2002 letter to Colleagues from the American Council on Education, et al. –Digital file sharing technology has made it easier than ever before for individuals to make and share a large number of unauthorized copies of creative works….. –Unfortunately, in some cases, college and university computer systems are being misused as servers to distribute such unauthorized copies worldwide. Oct. 8, 2002 letter to Colleagues from the American Council on Education, et al. –Digital file sharing technology has made it easier than ever before for individuals to make and share a large number of unauthorized copies of creative works….. –Unfortunately, in some cases, college and university computer systems are being misused as servers to distribute such unauthorized copies worldwide.

–Obviously, their [Oct. 3d] letter addresses this topic from the perspective of the recording and movie industries and reflects their interpretation of these issues. Nonetheless, we are in total agreement that this issue is important and merits your attention for multiple reasons –We urge you to discuss this issue with all appropriate campus officials including provosts, general counsels, chief information officers, business officers, librarians, and student affairs officers. –In short, while this is a vexing issue with no simple solutions, we hope you will join us in addressing it.

Copyright owners v. Colleges and Universities Joint Committee of the Higher Education and Entertainment Communities December 10, 2002 Statement by Higher Education Members of the Joint Committee : –With respect to the campus use of P2P technologies, the higher education members of the joint committee believe that universities have and will continue to meet their legal obligations to address abuses of copyright law, –and further, that these institutions have educational and ethical responsibilities to address the use and misuse of P2P technologies.

–Universities believe in and support copyright law [and] believe that all members of out university communities should be law-abiding citizens…. –We also firmly embrace and support the concept of fair use and related limitations and exceptions to proprietary rights important to the academic community, and we will seek to preserve the fullest exercise of those exemptions as we support the exercise of proprietary rights. –Therefore, we will seek ways to reduce the inappropriate use of P2P technology without restricting free speech and expression, invading privacy, or limiting the legitimate uses of P2P."

–The systematic implementation of thoughtful programs of education on copyright rights and responsibilities and appropriate and inappropriate uses of P2P technologies should be a central component of such actions. –The development and application of carefully crafted policies and procedures for network management can also reduce inappropriate uses while preserving appropriate uses of those networks.

Hmmmmmmmm Are You Sure About That?

Copyright owners v. Colleges and Universities Hearing held on Feb. 26, 2003 by the Courts, the Internet, and IP Subcommittee of the House Judiciary Committee on P2P file sharing on campuses Chairman Smith recited data showing that –16% of files available through a P2P service at any given time were located at IP addresses managed by U.S. educational institutions –File traders from educational institution networks accounted for 10% of all traders of the service at any given time ("Its unlikely that this amount of file-sharing activity is in furtherance of class assignments.)

Testimony of Graham Spanier at 2/26 Hg: –Penn State has a vigorous program of copyright education for our students and employees. –We also have an indirect enforcement effort. … We monitor the amount, but not the content, of traffic to and from individual machines. Residence Hall users are limited to 1.5 gigabytes of inbound or outbound traffic per week. There are increasingly severe restrictions for offenders who exceed these limitations….For persistent violators there is a complete suspension of network access.

Testimony of Graham Spanier at 2/26 Hg: –Yet despite these educational efforts, despite our compliance with DMCA, and despite our technical interventions, it is probably fair to say that thousands of our students illegally download some amount of copyrighted material. –They are typical of college students nationally in this regard and are party to a practice that is morally wrong, is damaging to the entertainment industry, and is inconsistent with the values of honesty and integrity that students more typically profess.

Rep. Maxine Waters (D-Cal) at the Hearing: –Pressed administrators whether they had ever expelled a student for illegal file sharing, was told no, and said; The fact of the matter is, while I'm sympathetic to the young people, they're breaking the law. And until the university or this Committee is willing to do something about it, we're just wasting everybody's time. Chariman Lamar Smith (R-Tex) at the Hearing: –Whats been done in education and enforcement hasnt worked that well.

Rep. John Conyers Jr. (D-Mich) at the Hearing: –Noted that Congress had considered legislation that would require people of convicted of sharing copyrighted material online to serve at least five years in prison. –We have to see from the education community a ratcheting up of concern about this.

Colleges and universities have a duty to address these crimes aggressively. School presidents and other administrators cannot stand by as taxpayer-funded information systems and tuition dollars are being used to build Internet systems that help facilitate unethical behavior. – Representative Ric Keller Colleges and universities have a duty to address these crimes aggressively. School presidents and other administrators cannot stand by as taxpayer-funded information systems and tuition dollars are being used to build Internet systems that help facilitate unethical behavior. – Representative Ric Keller

Copyright owners v. Colleges and Universities In November 2002, Naval Academy seizes computers from 92 students after concluding machines had been used to share copyrighted material. In April, Academy announces it has punished 85 of the students. In April 2003, RIAA sues 4 students at Princeton, Rensselaer Polytech, Michigan Tech who were running P2P music sharing services on a university network, seeling $150,000 statutory damages for each work infringed

Copyright owners v. Colleges and Universities In May 2003, New Jersey Institute of Technology bans use of file-sharing programs on institutes network. Dean Gentuls memo to students, staff and faculty said he was not optimistic that education would change student behavior: In spite of efforts to educate our community … we continue to receive notifications of possible violations from the recording and software industries. The volume of complaints continues to grow and the problem does not appear to be easily solved since the act of copying or downloading such materials appears to be imbedded in student culture.

Dean Gentuls memo also mentions the April lawsuits against the 4 students running file-sharing programs at other universities and declares that file sharing put not only the students, but also the university at risk for legal action. Dean Gentul told Wired: Our institution was receiving calls from the RIAA on almost a daily basis, identifying addresses that belonged to our students. It was growing in number to the point in which we couldnt handle it. When I cant get my own 13-year-old to stop [file sharing], I dont know how I can get my entire campus to stop.

NJIT Student Senate approves of ban. Senate President says: I think that banning [P2P programs] is the only thing that is going to protect our students. I dont want our students to get caught up with lawsuits against Time-Warner. Freshman Stephen Theodos reacts to ban: I think its crappy-- its pointless, adding that students will find a way to share files regardless of the ban. He wasnt worried the ban on P2P systems would hinder research or legitimate file-sharing activities: For the most part, thats kind of an irrelevant concern. File sharing here is mainly used for illegal activity.

Code vs. Law Larry Lessig: code is law But see Tim Wu, When Code Isnt Law (89 Virginia Law Review 679 June 2003) –Code as a mechanism for avoiding law –The Code designer as a tax lawyer –Copyright Law vs. P2P file sharing code

Copyright Law: A Superpower Vulnerable to Attack? Weakness #1: Reliance on Gatekeepers –All U.S. copyright law … proceeds on the assumption that effective and efficient copying is a large-scale, publicly visible, commercial activity, and therefore, that legal prohibitions against unauthorized copying are enforceable. (Congressional Office of Technology Assessment, 1989) –No material enforcement actions against end users prior to 1990s Weakness #1: Reliance on Gatekeepers –All U.S. copyright law … proceeds on the assumption that effective and efficient copying is a large-scale, publicly visible, commercial activity, and therefore, that legal prohibitions against unauthorized copying are enforceable. (Congressional Office of Technology Assessment, 1989) –No material enforcement actions against end users prior to 1990s

Weakness #2: Legality and ethics of home copying and sharing with friends are ambiguous 1971 Congressional Report: copyright was never meant to restrain the home recording, from broadcasts or from tapes or records, of recorded performances Sony v. Universal City Studios (U.S. 1984): time shifting = fair use 1989 Survey by Congressional Office of Technology Assessment: most people think copying for friends is OK (63%), but copying for money is wrong (76%) –(see, e.g., Metallica) Weakness #2: Legality and ethics of home copying and sharing with friends are ambiguous 1971 Congressional Report: copyright was never meant to restrain the home recording, from broadcasts or from tapes or records, of recorded performances Sony v. Universal City Studios (U.S. 1984): time shifting = fair use 1989 Survey by Congressional Office of Technology Assessment: most people think copying for friends is OK (63%), but copying for money is wrong (76%) –(see, e.g., Metallica)

The War Begins...

The Napster Offensive P2P with centralized database and search index: efficient and scalable In less than 2 years (summer 1999 to Feb 2001), Napster claimed 60 million registered users and 26 million+ active users. By 2001, analysts estimated users sharing nearly 3 billion songs (about 200 million CDs) per month.

The Napster Offensive Effective because it exploited Weakness #2 of Copyright Law: Home copying and sharing copies with friends perceived by many to be socially acceptable 2000 Pew Internet Project Study: 78% of users do not consider downloading to be stealing 61% of users do not care if music they download is copyrighted Effective because it exploited Weakness #2 of Copyright Law: Home copying and sharing copies with friends perceived by many to be socially acceptable 2000 Pew Internet Project Study: 78% of users do not consider downloading to be stealing 61% of users do not care if music they download is copyrighted

The Napster Offensive Napster failed because its design, which scaled impeccably, failed to attack Weakness #1 of Copyright Law: Napster was a gatekeeper that could be sued, enabling the RIAA to shut down the network A&M Records v. Napster (9th Cir. 2001): control over the database and search index renders Napster liable Napster failed because its design, which scaled impeccably, failed to attack Weakness #1 of Copyright Law: Napster was a gatekeeper that could be sued, enabling the RIAA to shut down the network A&M Records v. Napster (9th Cir. 2001): control over the database and search index renders Napster liable

The Battles Continue Aimster Gnutella Fastrack, KazaA, Grokster and Morpheus Aimster Gnutella Fastrack, KazaA, Grokster and Morpheus

In re Aimster Copyright Litigation (7th Cir. June 2003) Essentially the same design as Napster, but encrypted Judge Posner rejects Aimsters claims of ignorance and inability to monitor Essentially the same design as Napster, but encrypted Judge Posner rejects Aimsters claims of ignorance and inability to monitor

Contributory infringement: [O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a contributory infringer.

Lets Go to the Videotape [T]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. – Sony Corp. v. Universal City Studios (U.S. 1984) [T]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. – Sony Corp. v. Universal City Studios (U.S. 1984)

A Question of Degree? [W]hen a supplier is offering a product or service that has noninfringing as well as infringing uses, some estimate of the respective magnitudes of these uses is necessary for a finding of contributory infringement. – Judge Posner in Aimster [W]hen a supplier is offering a product or service that has noninfringing as well as infringing uses, some estimate of the respective magnitudes of these uses is necessary for a finding of contributory infringement. – Judge Posner in Aimster

... A Question of Degree? A retailer of slinky dresses is not guilty of aiding and abetting prostitution even if he knows that some of his customers are prostitutes – he may even know which ones are. The extent to which his activities and those of similar sellers actually promote prostitution is likely to be slight relative to the social costs of imposing a risk of prosecution on him. But the owner of a massage parlor who employs women who are capable of giving massages, but in fact as he knows sell only sex and never massages to their customers, is an aider and abettor of prostitution.... –Judge Posner in Aimster A retailer of slinky dresses is not guilty of aiding and abetting prostitution even if he knows that some of his customers are prostitutes – he may even know which ones are. The extent to which his activities and those of similar sellers actually promote prostitution is likely to be slight relative to the social costs of imposing a risk of prosecution on him. But the owner of a massage parlor who employs women who are capable of giving massages, but in fact as he knows sell only sex and never massages to their customers, is an aider and abettor of prostitution.... –Judge Posner in Aimster

So, Is File Sharing More Like a Slinky Dress or a Massage? The slinky-dress case corresponds to Sony, and, like Sony, is not inconsistent with imposing liability on the seller of a product or service that, as in the massage-parlor case, is capable of noninfringing uses but in fact is used only to infringe. Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use, let alone evidence concerning the frequency of such uses. The slinky-dress case corresponds to Sony, and, like Sony, is not inconsistent with imposing liability on the seller of a product or service that, as in the massage-parlor case, is capable of noninfringing uses but in fact is used only to infringe. Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use, let alone evidence concerning the frequency of such uses.

Gnutella Originally designed by AOL subsidiary (oops!) Open-source design was intentional effort to create filesharing protocol that would avoid legal attack: succeeded Failed because of scalability and social problems –July 2000 crash –No central mechanism to allocate traffic to more capable users –Free riders: 70% users shared no files, 50% of files provided by 1% of users Originally designed by AOL subsidiary (oops!) Open-source design was intentional effort to create filesharing protocol that would avoid legal attack: succeeded Failed because of scalability and social problems –July 2000 crash –No central mechanism to allocate traffic to more capable users –Free riders: 70% users shared no files, 50% of files provided by 1% of users

MGM v. Grokster, et al. (C.D.Cal. April 2003) FastTrack protocol and network created in 2000 by Dutch programmers Created KazaA client application to access FastTrack network, Grokster and Morpheus paid KazaA to access the network FastTrack avoids scaling problems via superpeering tiering system, which results in finite number of superpeers doing bulk of work FastTrack applications improve efficiency by using central servers to maintain user registrations, logging users, and helping to initially locate peers FastTrack protocol and network created in 2000 by Dutch programmers Created KazaA client application to access FastTrack network, Grokster and Morpheus paid KazaA to access the network FastTrack avoids scaling problems via superpeering tiering system, which results in finite number of superpeers doing bulk of work FastTrack applications improve efficiency by using central servers to maintain user registrations, logging users, and helping to initially locate peers

The Courage of Ones Convictions Grokster maintains its servers in Nevis, a 36 square-mile nation-state in the West Indies When the lawsuits started, Kazaa incorporated in Vanuatu for tax reasons Grokster maintains its servers in Nevis, a 36 square-mile nation-state in the West Indies When the lawsuits started, Kazaa incorporated in Vanuatu for tax reasons

MGM v. Grokster, et al. By May 2003, KazaA had become the worlds most downloaded software program of any kind, with more than 230 million downloads –Sept 2003 Cong. Testimony by RIAAs Cary Sherman RIAA estimates millions of P2P users are now downloading more than 2.6 billion copyrighted files (mostly sound recordings) each month By May 2003, KazaA had become the worlds most downloaded software program of any kind, with more than 230 million downloads –Sept 2003 Cong. Testimony by RIAAs Cary Sherman RIAA estimates millions of P2P users are now downloading more than 2.6 billion copyrighted files (mostly sound recordings) each month

MGM v. Grokster, et al. District Judge Wilson granted summary judgment in favor of Grokster and Morpheus –(KazaA did not appear in court to defend itself) Judge Wilson rejected MGMs claims that Grokster and Morpheus, like Napster, are capable of controlling the activities of their users. District Judge Wilson granted summary judgment in favor of Grokster and Morpheus –(KazaA did not appear in court to defend itself) Judge Wilson rejected MGMs claims that Grokster and Morpheus, like Napster, are capable of controlling the activities of their users.

MGM v. Grokster, et al. Judge Wilson took the issue of control as the sine qua non of contributory liability under Sony: The critical question is whether [defendants] do anything, aside from distributing software, to actively facilitate--or whether they could do anything to stop--their users infringing activity. Judge Wilson took the issue of control as the sine qua non of contributory liability under Sony: The critical question is whether [defendants] do anything, aside from distributing software, to actively facilitate--or whether they could do anything to stop--their users infringing activity.

MGM v. Grokster, et al. Judge Wilsons answer: Neither Streamcast nor Grokster facilitates the exchange of files between users the way Napster did. Users connect to their respective networks, select which files to share, send and receive searches, download files, all with no material involvement of Defendants. If either Defendant closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption. Judge Wilsons answer: Neither Streamcast nor Grokster facilitates the exchange of files between users the way Napster did. Users connect to their respective networks, select which files to share, send and receive searches, download files, all with no material involvement of Defendants. If either Defendant closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.

MGM v. Grokster, et al. Judge Wilson implicitly concluded that Groksters distribution of its software was equivalent to the sale of slinky dresses to known prostitutes: Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights. While defendants, like Sony or Xerox, may know that their products will be used illegally by some (or even many) users, and may provide support services and refinements that indirectly support such use, liability for contributory infringement does not lie merely because peer-to-peer file sharing technology may be used to infringe plaintiffs' copyrights. Hence, absent some evidence of active and substantial contribution to the infringement itself, Defendants cannot be liable. Judge Wilson implicitly concluded that Groksters distribution of its software was equivalent to the sale of slinky dresses to known prostitutes: Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights. While defendants, like Sony or Xerox, may know that their products will be used illegally by some (or even many) users, and may provide support services and refinements that indirectly support such use, liability for contributory infringement does not lie merely because peer-to-peer file sharing technology may be used to infringe plaintiffs' copyrights. Hence, absent some evidence of active and substantial contribution to the infringement itself, Defendants cannot be liable.

The Empire Strikes Back: Copyright Owners launch 2-front counteroffensive 1) The Legal Front: Pursue all the Gatekeepers they can find –Appealing the Grokster ruling –the INDUCE Act –Sue the users who offer substantial amount of copyrighted music –Threaten colleges and universities with liability if they dont clamp down on file sharing by their students Copyright Owners launch 2-front counteroffensive 1) The Legal Front: Pursue all the Gatekeepers they can find –Appealing the Grokster ruling –the INDUCE Act –Sue the users who offer substantial amount of copyrighted music –Threaten colleges and universities with liability if they dont clamp down on file sharing by their students

The Empire Strikes Back: 2) The Cultural Front: Change social norms regarding non-commercial copying and sharing by consumers –Publicize lawsuits against substantial users –Educational media campaign –Obtain the help of colleges and universities in changing the cultural norms that currently pervade their student communities 2) The Cultural Front: Change social norms regarding non-commercial copying and sharing by consumers –Publicize lawsuits against substantial users –Educational media campaign –Obtain the help of colleges and universities in changing the cultural norms that currently pervade their student communities

University as Educator : Can it change the norms of its students? Should it? Can it change the norms of its students? Should it?

Cant Stop the Music According to 2002 data, college students are twice as likely to have downloaded music compared to the general population and they are three times as likely to do so on any given day (Pew Internet Project) As of May 2003 – before the RIAA lawsuits – more than one half of full-time college students were downloading music, and more than one third were uploading it (Pew Internet Project) The lawsuits initially cut the number of downloaders roughly in half (Pew Internet Project), but that number has been increasing again since October (NPD Group) According to 2002 data, college students are twice as likely to have downloaded music compared to the general population and they are three times as likely to do so on any given day (Pew Internet Project) As of May 2003 – before the RIAA lawsuits – more than one half of full-time college students were downloading music, and more than one third were uploading it (Pew Internet Project) The lawsuits initially cut the number of downloaders roughly in half (Pew Internet Project), but that number has been increasing again since October (NPD Group)

Music Wants to be Free

Is File Sharing Immoral? Theft, pure and simple? Is the riot analogy apt? Is the Revolutionary War analogy apt? What does history teach us? –Dickens –Cable TV –The VCR Is the riot analogy apt? Is the Revolutionary War analogy apt? What does history teach us? –Dickens –Cable TV –The VCR

Coming Soon to a Computer Near You It's getting clear – alarmingly clear, I might add – that we are in the midst of the possibility of Armageddon. – Jack Valenti on file sharing We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.... [T]he VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone. – Jack Valenti on the VCR It's getting clear – alarmingly clear, I might add – that we are in the midst of the possibility of Armageddon. – Jack Valenti on file sharing We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.... [T]he VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone. – Jack Valenti on the VCR

Funny You Should Bring that up, Jack... Universal City Studios v. Sony (9th Cir. 1981) Sony v. Universal City Studios (U.S. 1984)

But what about your students? RIAA announces on June 25, 2003 that it will start searching internet file-sharing networks to identify users who offer substantial collections of mp3 files for downloading and expects file at least several hundred lawsuits seeking financial damages within 8-10 weeks. Mike Godwin: Im sure its going to freak them [file sharers] out. The free ride is over. Wayne Russo (Pres. of Grokster): Forget about it, dude -- even genocidal litigation cant stop file sharers. On September 8, 2003, the RIAA sued 261 people for file sharing.

Liability of Students Direct infringement: Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner,... is an infringer of copyright. Exclusive rights include copying and distribution, the very functions that are at the heart of file-sharing (Very) strict liability Knowledge and intent are irrelevant to liability Innocent infringement is infringement nonetheless Potential liabilities include as much as $150,000 per infringement, plus attorney fees and possible criminal penalties Direct infringement: Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner,... is an infringer of copyright. Exclusive rights include copying and distribution, the very functions that are at the heart of file-sharing (Very) strict liability Knowledge and intent are irrelevant to liability Innocent infringement is infringement nonetheless Potential liabilities include as much as $150,000 per infringement, plus attorney fees and possible criminal penalties

But You Said Its Nice to Share Space shifting is generally regarded as fair use – see, e.g., RIAA v. Diamond Multimedia Systems (9th Cir. 1999) Transferring physical possession of a CD is protected under the first sale doctrine Sharing with 10,000,000 of your closest personal friends is neither Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights. – A&M Records v. Napster (9th Cir. 2001) Space shifting is generally regarded as fair use – see, e.g., RIAA v. Diamond Multimedia Systems (9th Cir. 1999) Transferring physical possession of a CD is protected under the first sale doctrine Sharing with 10,000,000 of your closest personal friends is neither Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights. – A&M Records v. Napster (9th Cir. 2001)

Whats a Person to Do?

University as Gatekeeper: Can it be liable for file sharing by its students? Contributory infringement is again the issue However, the DMCA provides ISPs with safe harbors from liability in four situations: Information Residing on Systems or Networks At Direction of Users Transitory Digital Network Communications System Caching Information Location Tools Contributory infringement is again the issue However, the DMCA provides ISPs with safe harbors from liability in four situations: Information Residing on Systems or Networks At Direction of Users Transitory Digital Network Communications System Caching Information Location Tools

At Your Service The definition of service provider is quite broad and generic: a provider of online services or network access Colleges and universities are just Internet Service Providers that charge tuition. – former Harvard counsel Allan Ryan, Jr. * Ellison v. Robertson (9th Cir. 2004) The definition of service provider is quite broad and generic: a provider of online services or network access Colleges and universities are just Internet Service Providers that charge tuition. – former Harvard counsel Allan Ryan, Jr. * Ellison v. Robertson (9th Cir. 2004)

General Conditions for Eligibility Must adopt, reasonably implement, and inform users of a policy that provides for the termination of the accounts of repeat infringers in appropriate circumstances Must accommodate, and not interfere with, standard technical measures Must adopt, reasonably implement, and inform users of a policy that provides for the termination of the accounts of repeat infringers in appropriate circumstances Must accommodate, and not interfere with, standard technical measures

Be My Host A service provider shall not be liable for... infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider....

Eligibility Conditions for Hosted Content Safe Harbor Have no actual knowledge that specific material is infringing or awareness of facts and circumstances from which it is apparent Need not monitor or affirmatively seek out infringement Expeditiously remove or disable access to infringing material upon gaining such knowledge or awareness Derive no financial benefit directly attributable to the infringing activity Register a designated agent to receive notices of claimed infringement Comply with notice and takedown procedure upon receipt of a notice that substantially complies Have no actual knowledge that specific material is infringing or awareness of facts and circumstances from which it is apparent Need not monitor or affirmatively seek out infringement Expeditiously remove or disable access to infringing material upon gaining such knowledge or awareness Derive no financial benefit directly attributable to the infringing activity Register a designated agent to receive notices of claimed infringement Comply with notice and takedown procedure upon receipt of a notice that substantially complies

Just Passing Through A service provider shall not be liable for... infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections....

Eligibility Conditions for Conduit Safe Harbor Transmission is directed by someone else Transmission is carried out by an automatic technical process with no selection of material by provider Provider does not select recipients Any transient copy is not ordinarily accessible to others or retained for longer than reasonably necessary for the transmission Material is transmitted without modification of content Transmission is directed by someone else Transmission is carried out by an automatic technical process with no selection of material by provider Provider does not select recipients Any transient copy is not ordinarily accessible to others or retained for longer than reasonably necessary for the transmission Material is transmitted without modification of content

Nota Bene Knowledge apparently doesnt matter Takedown requirement does not apply But virtually all of the takedown notices we are receiving involve precisely this situation! Can we just throw them away? Should we? Knowledge apparently doesnt matter Takedown requirement does not apply But virtually all of the takedown notices we are receiving involve precisely this situation! Can we just throw them away? Should we?

You Sure Ask a Lot of Questions Are you sure youve done everything the safe harbor requires? Are students with respect to whom we receive multiple notices repeat infringers we must terminate under our reasonably implemented policies anyway? Do we fail our students if we dont protect them from themselves? What would Congress do if we were to take that position? Are you sure youve done everything the safe harbor requires? Are students with respect to whom we receive multiple notices repeat infringers we must terminate under our reasonably implemented policies anyway? Do we fail our students if we dont protect them from themselves? What would Congress do if we were to take that position?

Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives

Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives

Back on the Chain Gang? Progressive discipline Termination of room connection v. termination of account Progressive discipline Termination of room connection v. termination of account

Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives

Shock and Awe What happens at Penn State if you are caught? By statute, the University must immediately block your network access when we receive notification that a particular computer has been involved in a violation of the law. You may also be taken to court by the copyright holder or charged in the federal courts with a crime. That is not all that can happen.... A student can be expelled and an employee terminated under University policy. – Broadcast message from Penn States Provost What happens at Penn State if you are caught? By statute, the University must immediately block your network access when we receive notification that a particular computer has been involved in a violation of the law. You may also be taken to court by the copyright holder or charged in the federal courts with a crime. That is not all that can happen.... A student can be expelled and an employee terminated under University policy. – Broadcast message from Penn States Provost

Kinder and Gentler While the tactics these organizations have chosen to employ may seem heavy-handed, they are correct that much of the file-trading that occurs through the use of these programs constitutes copyright infringement.... At an institution devoted to the creation of art, we should be especially mindful of these issues. Artists livelihoods are dependent in large part on the creation of, and the respect of others for, copyrights. Just as you would wish to protect the economic value of your own copyrights, so, too, do the musicians, filmmakers, and other fellow artists whose work is being traded over the Internet without appropriate compensation. – Broadcast message to the RISD Community While the tactics these organizations have chosen to employ may seem heavy-handed, they are correct that much of the file-trading that occurs through the use of these programs constitutes copyright infringement.... At an institution devoted to the creation of art, we should be especially mindful of these issues. Artists livelihoods are dependent in large part on the creation of, and the respect of others for, copyrights. Just as you would wish to protect the economic value of your own copyrights, so, too, do the musicians, filmmakers, and other fellow artists whose work is being traded over the Internet without appropriate compensation. – Broadcast message to the RISD Community

Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives

Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives

Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives

University of Florida: ICARUS Integrated Computer Application for Recognizing User Services Automatically detects P2P traffic and disables user account First strike: 30 minutes + tutorial Second strike: 5 days Third strike: judicial system Integrated Computer Application for Recognizing User Services Automatically detects P2P traffic and disables user account First strike: 30 minutes + tutorial Second strike: 5 days Third strike: judicial system

Central Washington: Audible Magics CopySense

Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives

Cornell: Pay by the Drink Cornell has implemented a usage-based fee structure For $3.00 per month, each user can send or receive up to 2 gigabytes of data through Cornells internet connection to the outside world Internal traffic is free Excess usage costs $.002 per megabyte Cornell estimates that more than 80% of its users will never have to pay more than the basic fee Cornell has implemented a usage-based fee structure For $3.00 per month, each user can send or receive up to 2 gigabytes of data through Cornells internet connection to the outside world Internal traffic is free Excess usage costs $.002 per megabyte Cornell estimates that more than 80% of its users will never have to pay more than the basic fee

Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives

If You Cant Beat Them...

... If You Cant Beat Them 3000 users in the first 24 hours 100,000 downloads in the first 24 hours 500,000+ songs available 3000 users in the first 24 hours 100,000 downloads in the first 24 hours 500,000+ songs available

... If You Cant Beat Them

Getting to Know You, Getting to Know All About You A copyright owner... may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer.... The subpoena shall... order the service provider... to expeditiously disclose to the copyright owner... information sufficient to identify the alleged infringer of the material... to the extent such information is available to the service provider.

Or Maybe Not The issue is whether § 512(h) applies to an ISP acting only as a conduit for data transferred between two internet users, such as persons... sharing P2P files.... We conclude from both the terms of § 512(h) and the overall structure of § 512 that... a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity. – RIAA v. Verizon Internet Services (D.C. Cir. 2003) The issue is whether § 512(h) applies to an ISP acting only as a conduit for data transferred between two internet users, such as persons... sharing P2P files.... We conclude from both the terms of § 512(h) and the overall structure of § 512 that... a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity. – RIAA v. Verizon Internet Services (D.C. Cir. 2003)

DMCA v. FERPA? Upon receipt of the issued subpoena,... the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law....

And the Winner is... Unclear In the meantime, insist on compliance with both DMCA and FERPA A subpoena that does not comply with the DMCA (apparently including a conduit subpoena) is not lawfully issued A subpoena that is not issued by a court having jurisdiction may not be lawfully issued – Boston College v. RIAA (D. Mass. 2003) Expeditiously does not necessarily mean immediately, so it may still be possible/ required to give reasonable advance notice Unclear In the meantime, insist on compliance with both DMCA and FERPA A subpoena that does not comply with the DMCA (apparently including a conduit subpoena) is not lawfully issued A subpoena that is not issued by a court having jurisdiction may not be lawfully issued – Boston College v. RIAA (D. Mass. 2003) Expeditiously does not necessarily mean immediately, so it may still be possible/ required to give reasonable advance notice

Questions?