The Music Piracy Riddle
Ruling Aids Industry in Attempt To Target Individual Illegal Users

Staff Reporter

A U.S. district judge's ruling that Verizon Communications Inc. must hand over the name of a subscriber alleged to have downloaded as many as 600 music files in a single day is another incremental win in the industry's effort to halt online piracy.

But the war is far from over.

Last week's court decision was a blow to Verizon, which challenged portions of the Digital Millennium Copyright Act mandating Internet service providers to reveal the information related to users suspected of pirating music.

The ruling, which could still be appealed, comes at a time when the Recording Industry Association of America is increasingly focused on finding individual users that participate in piracy.

"It's an important ruling, but it's not a controversial one," said George Borkowski, a partner and head of the intellectual property and technology department at Mitchell Silberberg & Knupp LLP, which represents the RIAA in other matters. "It says a copyright owner who thinks there's infringement occurring on an ISP or through an ISP can send a subpoena and learn the identity of the infringer."

Though the industry has seen some gains, it's far from clear that its efforts to bring order to the downloading lawlessness will succeed.

Among the challenges faced are protections offered Internet service providers under 1998's Digital Millennium Copyright Act, the ineffectiveness of suing millions of violators individually, and the proliferation of swapping services overseas beyond the reach of U.S. courts.

"The sheer proliferation of peer-to-peer transfer protocol services is such that it's difficult only using lawsuits to get the genie back in the bottle," said Christopher Murray, chairman of the entertainment and media department at O'Melveny & Myers LLP.

Napster, one of the earliest and largest online file sharing sites, settled a lawsuit after failing to convince a federal appellate judge in 2001 that it was not responsible for the actions of its users who downloaded free music from its site.

More recently, a federal judge in Los Angeles this month ruled that record companies could sue the parent company of file swapping Web site Kazaa under U.S. Copyright Law, even though the company is based in Australia.

"There has been a lot of confusion in the average consumer's mind about the legality or illegality of this behavior," said Cary Sherman, president of the RIAA. "A lot more people now understand it's illegal."

Government distance

While the federal government was partially involved in the Napster case, government prosecutors generally have stayed out of criminal proceedings against music pirates.

One reason, suggests Borkowski, is that the basis for suing Web sites under copyright law contributory infringement and vicarious liability has no criminal component. Other attorneys say that computer piracy issues have never been at the forefront of federal prosecutors' priorities.

"Over the past 20 years, it's been difficult to get law enforcement very interested in piracy issues," said Mark Lee, a partner at Manatt Phelps & Phillips LLP. "The criminal penalties are not that great, and they tend to be very difficult cases. And law enforcement has to prioritize. Do we go after murderers and rapists or after software pirates?"

Justice Department spokesman Charles Miller could not recall a case other than Napster in which the government had been involved.

The industry's efforts at going after service providers have been hindered by a provision of the digital copyright act ensuring that Internet service providers, such as Verizon, could not be held liable for assisting in copyright violations.

Site operators also argue that downloading songs is part of the U.S. Copyright law's "fair use" clause permitting users to make copies of music for their own use.

"Someone who is making a copy of a cassette is engaging in a personal use, which has a better argument that it's fair use," Sherman said. "Somebody who is making that same track available for millions of strangers to download for free can't argue this is a personal use. That's the difference."

Denying responsibility

Recent court victories have chipped away at some shields used by music pirates, but they have not stymied their success. As music retailers attribute declining revenues largely to online music piracy, new file-sharing Web sites have sprung up, attracting millions of users.

The newer Web sites also are not designed like Napster, which stored music files on its servers and made them available to members. They have no central server and claim, therefore, they don't have responsibility for what gets passed from one user to another on their site.

Sharman Networks Ltd., which operates Kazaa, says on its site that it "does not condone activities and actions that breach copyright owners. As a Kazaa Media Desktop user it is your responsibility to obey all laws governing copyright in each country."

That, says Ken Hertz, a partner at Goldring Hertz Lichtenstein & Haft LLP in Beverly Hills, provides some cover.

"A more evolved peer-to-peer system, like Kazaa, doesn't touch anything," Hertz said. "You and I can call on the phone and plan a bank robbery or a murder, but that doesn't mean we should make phones illegal."

Attorneys representing copyright holders say that argument will not hold up in court.

"With decisions like Napster, it is fairly clear that if you're a file transfer protocol sharing large quantities of copyright and subject matter, it's infringement," said Murray. "Peer-to-peer is one step removed, but they're still profiting from copyright infringement."

Legal enforcement may be more effective, however, once the RIAA and other industry groups begin targeting actual infringers.

Sherman says the RIAA will begin filing lawsuits against individual users if educational campaigns do not work. "We made the decision that the first target ought to be the people building a business and seeking profit commercially," he said. "But it's becoming clear that that isn't enough."

What's Legal?

- U.S. Copyright Law

Original works in any "tangible medium of expression" are covered under copyright law, including all media "now known or later developed."

- Fair Use Doctrine

The use of a copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research, is not considered a copyright infringement.

- Digital Millennium Copyright Act of 1998

Established new limits on liability for copyright infringement by Internet service providers.

For reprint and licensing requests for this article, CLICK HERE.