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Forum : Legal
| Posted: 10/29/2003 | Copyright, File Sharing and the RIAA
| As most of us are aware, the Recording Industry Association of America (ˇ§RIAAˇ¨) has begun to file lawsuits against individuals for direct and contributory copyright infringement. Fundamentally the claims are based on the claim that an active user of a Napster or Kazaa type of peer-to-peer file sharing network is copying and distributing sound recordings without the authorization of the copyright owners. This article is the first of two to address the issues surrounding the laws governing these suits and the policies the courts are creating.
A. Copyright Law
The Copyright Act of 1976 (U.S. Code, Title 17) establishes the rights of authors of literary works, musical works, dramatic works, choreographic works, graphic works, audiovisual works, and most importantly to this discussion, sound recordings. Under the 1976 Act, an author is protected as soon as a work is recorded in some concrete way, i.e., a writing, a sound recording, a painting etc. Most folks do not realize that copyright protection is secure until fifty (50) years after the death of the author. This is why things like Shakespeare, Mozart and Beethoven can generally be performed by anybody at any time without a violation of the copyright law. It should be noted however that a specific orchestras recorded performance of a piece of classical music can be protected by copyright, but the music/script itself cannot be.
The Copyright Act of 1976 provides that certain exclusive rights belong to the author, to his or her assigns, or sometimes to his or her employer if the work is a ˇ§work for hire.ˇ¨ In this case, the author or copyright owner has the exclusive right to make copies of the work. In addition to the right to make copies, The Copyright Act of 1976 also allows the owner to control ˇ§derivative worksˇ¨, such as plays, motion pictures, or other adaptations or interpretations of the basic work. This means that the original author (or their assigns) can stop anyone producing anything that is substantially similar.
Copyright protection is extended only to the original form of an idea, whether literary, artistic, commercial, or otherwise. The ˇ§formˇ¨ is the key because only the actual physical form of the expression is protected. In other words, a newspaper article is copy written to the extent that the words are physically written in a certain order. The ˇ§newsˇ¨ itself is not subject to copyright.
In any discussion of copyright, the issue of formal registration comes up. Copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
- Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
- If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
- If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
- Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.
In 1998, the Digital Millennium Copyright Act (ˇ§DMCAˇ¨) was enacted, making important changes in U.S. copyright law. Most importantly the DMCA prohibits the circumvention of any effective technological protection measure used by a copyright holder to restrict access to its material. In other words, if a copyright holder has created some form of physical or electronic protection on their work, another person cannot use any form of similar technology to bypass the protection. Additionally, the DMCA prohibits the manufacture, import, or offer to the public of technology used to defeat protective technological measures (this is at the heart of the current slew of Digital Satellite Signal litigation currently taking place all over the country, but that is a different issue).
B. The RIAA Lawsuits
Very recently, the Recording Industry Association of America filed approximately 260 Federal lawsuits against alleged ˇ§peer-to-peerˇ¨ file swappers. The Complaints charged the Defendants with copyright infringement and alleged damages in the millions.
According to the RIAA, these lawsuits are just the start of what could be thousands more lawsuits filed over the next few months. In the past, the targets of such lawsuits have been the actual operators of the peer-to-peer servers or sites, but ordinary single ˇ§at homeˇ¨ computer users have never before been targeted.
While the very active (generally younger crowd) peer-to-peer network users themselves seem to be very vocal in dismissing the RIAAˇ¦s allegations as just ˇ§wrongˇ¨ or ˇ§stupidˇ¨ or ˇ§vindictiveˇ¨, these lawsuits, and the laws they rely on, are very real and very well established. Under copyright law, a violator can be held liable for up to $150,000 per violation. Do the math; 100 songs on your hard drive multiplied by $150,000 ˇV Holy Smokes! According to the RIAAˇ¦s recent complaints, most of the people sued were sharing 1,000 songs or more on the file-swapping networks. Realistically these cases will settle for nominal amounts, but the potential for high number damages is downright frightening.
The problem from a defense side is that the same technology that allows the swapping to go on also traces the file movement with stunning accuracy. The RIAA has collected long lists of files being shared by thousands of users. As stated above, Copyright law forbids distributing unauthorized copies of protected works, as well as actually making unauthorized copies. Peer-to-peer network users who have swapped large numbers of copyrighted files on file-swapping networks could be deemed to be ˇ§distributorsˇ¨. This ˇ§distributorˇ¨ category could take the damage claim all the way.
Thus far, the RIAA has used subpoenas to track down the actual identity of the peer-to-peer network users. Some ISPˇ¦s have challenged the validity of the subpoenas used by the RIAA to collect peer-to-peer network usersˇ¦ identities. Some say that this approach violates a users right to privacy. We will address that issue in next months article.
The RIAA has released details of an online ˇ§amnestyˇ¨ campaign, offering peer-to-peer network users a provisional shield against being sued if they turn themselves in before a lawsuit is filed. Under the ˇ§Clean Slateˇ¨ program, peer-to-peer network users must destroy any copies of copyrighted works they have downloaded from services such as Kazaa, and sign a notarized affidavit pledging never to trade copyrighted works online again. According to the details of the program, anybody who signs and returns the document will not be targeted by the RIAA based on past infringement. However, if their names come up in future file-swapping sweeps, any amnesty seekers could be liable for potentially higher damages based on "willful infringement." Go to to participate in this program.
Conclusion
The copyright laws are well established and routinely enforced laws. While the RIAA may be upsetting a large number of people, a Federal lawsuit is nothing to trifle with. If you have been contacted, subpoenaed or sued by the RIAA, you should seek counsel immediately. Matthew R. Halpin & Associates, P.C. has worked in the copyright and trademark area for several years and has litigated numerous lawsuits in the Federal courts. Feel free to visit us at
Click here for a Bio of Matthew Halpin
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