Monday, August 13, 2007
One day Richard Zayas was using his computer-a computer containing about 1,000 songs and a handful of downloaded movies and TV shows, none of which he'd paid for-when he received an email from KU.
The MPAA (Motion Picture Association of America) has identified files on your computer that are being shared. You must delete any files that you have for which you do not have the copyright holder's permission.
The file that got him busted: Braveheart.
Zayas, a sophomore living in Battenfeld Scholarship Hall, was slapped on the wrist. He had to fill out a survey (So you know what you did was wrong, right?), was told to delete the movie and was warned not do it again.
He swallowed his punishment without complaint and turned off file-sharing on his computer. (As Mel Gibson said, "Fight and you may die. Run and you'll live, at least a while.") He kept most of his free files.
That was nearly three years ago, and while the number of college students downloading music and movies has since increased, the KU policy and the tactics of copyright enforcers have since remained largely the same.
This semester things will change.
On one front, KU is clamping down on illegal downloaders. Any student caught once with pirated material will lose access to ResNet, the university's internet service, for the remainder of his or her time in the residence halls.
Meanwhile, an aggressive initiative launched this year by the Recording Industry Association of America, in which the association sends "pre-litigation letters" asking students to settle or face a lawsuit, has just hit KU, with 14 students being singled out in late July.
But the issue is a thorny one. For starters, KU is refusing to cooperate with the RIAA by not delivering the letters. The RIAA's response? Fine, we'll just sue the students.
Clash with KU
KU doesn't know whether the RIAA has students' best interests at heart, university spokesman Todd Cohen says. What if KU were to expose students to the RIAA and then the association screwed them over?
The letters are not addressed by name, but by IP address. Because the RIAA doesn't know the students' identities, the association has asked KU to forward the letters to the students on the accounts in question.
"Just because the RIAA sends us a letter, do we become their agent and deliver their information?" Cohen says. "We don't know what their offer may be, and we don't want to give the students any perception we're endorsing it in any way whatsoever."
KU isn't alone in this stance, but it is in rare company. Thirteen of the 23 colleges hit by the RIAA's latest wave of pre-litigation letters responded to lawrence.com's inquiries about the letters. Eight of the 13 say they're forwarding them to the students, three (including KU) are refusing, and two are undecided.
The RIAA letter says students will be rewarded for settling before a lawsuit is filed: "If you contact us within the next twenty (20) calendar days, we will offer to settle the claims for a significantly reduced amount compared to what we will offer to settle them for after we file suit or compared to the judgment amount a court may enter against you."
If students don't respond to the letters-even if they never received them-the RIAA says that it will subpoena their names and file suit, seeking between $750 and $150,000 per recording (the minimum and maximum under federal copyright law).
The universities that are forwarding the letters generally say they're doing what's best for the students by helping them avoid a lawsuit. An RIAA spokeswoman told lawrence.com, "It is hard to imagine a school would willingly deprive a student of the chance to settle the matter at a discounted fee and avoid a lawsuit."
This tricky situation-of either forwarding the letters or refusing and potentially costing the students more money-is one that the RIAA has manufactured, Cohen says, and KU is refusing to play the game.
"If they want to get the student's identity they can go to court, get a subpoena and we'll give them the information they subpoena for," he says. "But we're not gonna serve as their legal agent and deliver a summons on their behalf because that's not our role. : We're not the 'cops for hire' for them."
The RIAA says it has taken "legal action" against 21,000 people since 2003. But not a single case has gone to trial.
A handful of high-profile cases have been thrown out by the courts, but most people, apparently, are settling out of court. The RIAA won't release numbers.
What to make of this? Andrew Torrance, a KU law professor who specializes in intellectual property law, says it's hard to say. Maybe people are scared of the RIAA, or maybe the RIAA is scared of losing at trial, or both.
"The fact that these actions rarely end up in court could be an indication that accused individuals fear legal or economic annihilation in a David versus Goliath fight with a well-funded and aggressive RIAA," he says.
"Or it could be that the RIAA really does offer kid-gloved settlements so as to avoid litigating claims they might lose, thereby establishing anti-RIAA legal precedents."
Prosecutors representing the RIAA, MPAA, other clients attempting protect copyright on the internet all face significant hurdles in proving copyright infringement. At a minimum they must connect a given IP address with the activity of the defendant.
That's problematic for a number of reasons. Roommates or families often share a single computer. Many users unwittingly share their wifi connections with others in a residence hall or neighborhood. And IP addresses frequently change. It all makes proving who pirated what a difficult-if not impossible-undertaking.
As the game of cat and mouse between copyright owners and accused pirates has evolved so has file-sharing software, further muddying the waters of who is guilty of illegal file sharing.
For instance, people who use BitTorrent-a protocol in which bits of files are transmitted (instead of, say, a whole song) and then assembled on the downloader's computer-will likely be harder to prosecute as it's even more problematic to link a single person to given song, video, etc.
"Like a doctor who over-prescribes antibiotics only to see infectious bacteria evolve increasing resistance," Torrance says, "the RIAA's aggression campaign to outlaw file-sharing programs may have spurred innovation of increasingly sophisticated, undetectable, and undefeatable technologies that are now coming back to haunt it."
Everybody's doing it
About a month ago Jacob Kaplan-Moss lost his internet connection.
When he called Sunflower Broadband (part of The World Company, which is his employer and also owns lawrence.com), he says he was told the company had received a complaint from the RIAA saying he'd been sharing copyrighted material. He says Sunflower told him to stop sharing and turned his service back on.
While lawsuits against illegal downloaders have generated attention, the quieter-and far more common-tactic employed by the RIAA and the MPAA is to monitor file-sharing networks and send notices to ISPs like Sunflower Broadband when they find a user who is sharing files.
KU reports receiving 345 notices so far this year and Sunflower says it receives more than 100 a month. Once notified, ISPs are legally obligated under the Digital Millennium Copyright Act to make an effort to ensure users stop sharing the material.
Under KU's new "zero tolerance" policy students have the opportunity to appeal, but if found guilty they will be spending a lot more time in the computer lab. Patrick Knorr, general manager of Sunflower Broadband, says the company has a three strikes rule, after which internet service is terminated.
Kaplan-Moss says that after his internet service was turned back on he didn't change his habits.
"I don't know anyone who actually takes it seriously, frankly, because it's one of those things that if you actually have the resources to fight it and actually know what you're talking about, there's no way that a lawsuit would hold up in court-and hasn't," he says. "They've never actually won a court case; they've only settled. It's essentially blackmail."
Dismissiveness of copyright law is an increasingly common sentiment, Torrance says.
"The public, and the courts, may be coming to view file-sharing as acceptable behavior rather than accepting the rather extreme, even hysterical, attempts the RIAA and MPAA have made to portray teenaged file-sharers as evil, rapacious, and dangerous pirates of the electronic high seas," he says.
But should this behavior be accepted? It comes back to the seemingly old argument which has been transformed by the internet. On one side there's the opinion that stealing is stealing, even when it's incredibly easy and doesn't feel like stealing. Then there's the more revolutionary stance of questioning the whole notion of intellectual property online-the "information wants to be free" movement.
Professor and copyright lawyer Lawrence Lessig has written extensively about internet copyright law. He asserts that it's not simply about "whether 'piracy' will be permitted, and whether 'property' will be protected," Lessig writes in his book "Free Culture." "My fear is that ... the war to rid the world of internet 'pirates' will also rid our culture of values that have been integral to our tradition from the start." Namely that, as the sphere of cultural consumption moves from public places to the internet, corporate entities will stake an ever larger claim on creativity.
Organizations like the RIAA and MPAA "defend the idea of 'creative property,' while transforming real creators into modern-day sharecroppers," Lessig continues. "We will have an information society. That much is certain. Our only choice now is whether that information society will be free or feudal. The trend is toward feudal."
An RIAA spokeswoman says the issue not complicated: "Record label employees have been laid off and many music stores throughout the country such as Tower Records have been shuttered due to a decline in sales. With so many legal services in the marketplace that offer high-quality, hassle-free music at affordable prices, how can individuals continue to justify piracy? Just pay for it-it's that simple."
Whether the moral lines are clear or not, it may be hard to find anyone who hasn't downloaded a song, been on the giving or receiving end of a burned CD or DVD, or otherwise gotten something for free, at least once.
"Do you know anyone who's never pirated anything?" Kaplan-Moss says. "Anyone? : I mean, when my parents come to visit, they're like, 'Hey, what are you listening to? Let me get a copy' : It's not like it's, 'Oh, it's only this small group of people.' The entire business model is broken."