Suing America: The Notes

These notes were used to write dave’s essay, called Suing America: A Synopsis of Events in File Sharing to the Present Day. There were 8 pages of notes, and not all had been used in the actual essay. If you want to get yourself educated about the RIAA suing people and file sharing in general, visit all the sites and sources listed in the notes here, as well as reading these articles, written by davepoobond (as they will at least give you a better idea than knowing nothing about the topic):

For File Sharing:

File Sharing and the RIAA Theory

Suing America: A Synopsis of Events in File Sharing to the Present Day

Against File Sharing:

The File Sharing Debate: Against File Sharing

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“Recording Industry Begins Suing P2P File Sharers Who Illegally Offer Copyrighted Music Online.” 5 October 2003 <www.riaa.com>

  • The RIAA will agree to not sue P2P users who voluntarily pledge to stop distributing music illegally, by wiping their hard drives clean of all illegal music, and promise to never share or download any illegal music again.
  • RIAA is going to focus on suing offenders who have been illegally distributing substantial amounts of music, averaging more than 1,000 copyrighted music files.
  • Public awareness that it is illegal to make copyrighted music available online for others to download has risen sharply in recent months.
  • 61% of those polled in August admitted they knew sharing copyrighted music was illegal, up from 54 in July, and 37 in early June.
  • RIAA promotes switching from downloading free music illegally, to a paid service, downloading legally.
  • The RIAA has worked closely with the university community to combat piracy.
  • RIAA sent more than four million Instant Messages since May directly to infringers on Kazaa and Grokster.
  • Users are not anonymous when they illegally offer copyrighted music.
  • RIAA member companies filed copyright infringement claims against 261 individual file shares on October 5, 2003.
  • Illegal filesharing robs songwriters and recording artists of their livelihoods, and also undermines the future of music itself by depriving the industry of the resources it needs to find and develop new talent.
  • Illegal filesharing threatens the jobs of tens of thousands of less celebrated people in the music industry, from engineers and technicians to warehouse workers and record store clerks.
  • The music industry has made music available to a wide range of authorized online subscription, streaming, and download services legally and inexpensively on the Internet.
  • It is illegal to make available for download copyrighted works without permission of the copyright owner.
  • RIAA is suing only after a multi-year effort to educate the public about the legality of unauthorized downloading and noted they have made music available in high-quality, low cost, legitimate services.
  • All the industries are failing because of file sharing, from CD packers to guitar players

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“Why Are the RIAA Suing Individuals for P2P File Sharing?” 5 October 2003 <www.filesharingwatch.com>

  • The sharing of MP3 files started long before Napster got popular in 1999.
  • During the second half of the 1990’s people shared MP3 files with friends using CDs and local area networks.
  • Modem Internet connections aren’t built for serious file sharing.
  • When broadband got popular in offices in 1998/1999, the infrastructure of P2P programs was in place.
  • The success of Napster was due to selection and ease-of-use.
  • Napster kick started P2P file sharing.
  • The music industry hasn’t been able to shut down the developers of file sharing programs.
  • The RIAA and MPAA’s first strategy were to go after the companies operating the file sharing networks, this caused the destruction of Napster.
  • After Napster, a bunch of other companies that offered new file sharing programs such as Morpheus, Gnutella, Kazaa, WinMX, and Audiogalaxy, had a central design that made it so that the companies didn’t host central lists of files on the P2P network.
  • The RIAA sued companies developing the new generation of file sharing software, and lost several cases.
  • The reason the RIAA lost several cases was that file sharing programs have non-infringing uses and as the developers of the post-Napster programs didn’t control the P2P networks, they weren’t to be held accountable for what the users shared on the networks.
  • The RIAA can’t stop illegal file sharing by suing the software companies making the software, and the only option was to go after individuals sharing copyrighted files directly.
  • By suing individual users, the RIAA hopes that it will scare consumers away from the P2P networks, and make them worse.
  • The Digital Millennium Copyright Act is used by the RIAA to get information about individuals with illegal music relatively cheap, without going through the courts first, and makes it possible to talk about thousands of lawsuits against file sharers.
  • The RIAA isn’t suing large numbers of file sharers to get millions of dollars form the file sharers in damages, its to scare all users to the extent that they stop sharing files on public P2P networks.
  • By scaring people off the P2P networks, worse file sharing networks make legal online music services more appealing.
  • The RIAA is hoping to kill public P2P networks by suing individual users.
  • The RIAA hopes that some people will abandon downloading songs and buy more CDs or subscribe to an online music service instead.
  • Napster lost in court because it kept a central list of files shared.

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“Who is the RIAA Suing?” 5 October 2003 <www.nwfusion.com>

  • Sen. Norm Coleman, chairman of the Senate Permanent Subcommittee on Investigations, asked the RIAA to explain just how it was targeting recipients for the more than 1,000 subpoenas the group has sent out in its quest to quash file trading.
  • The RIAA explained that the RIAA is in now way targeting “de minimis” users, but only gathering evidence and preparing lawsuits only against individual computer users who are illegally distributing a substantial amount of copyrighted music.
  • Plain folks, kids, grandparents, low-level file traders across the country are getting subpoenas.
  • By targeting small time file traders, the RIAA is probably hoping that panicked parents will scrub the hard drives of MP3s.
  • The RIAA has refused to define what it considers a substantial amount of music.
  • Coleman said he was pleased with the RIAA response.
  • Coleman has admitted to downloading music off the original Napster service and should be asking whether he himself deserves to be dragged into court and fined thousands of dollars.
  • The subpoenas will simply continue to make music fans angry, further reducing the chance that they will be willing to purchase overpriced music from officially sanctioned sites blessed by the music industry.

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“Charter Sues to Block RIAA from Getting Names.” 7 October 2003 <www.reuters.com>

  • Charter Communications Inc. said it has sued the recording industry to block it from getting names of its customers for alleged song-swapping on the Internet.
  • Charter sued the RIAA, after the RIAA issued subpoenas for identities of about 150 of its customers.
  • Charter considers their relationship with their customer to be their most important responsibility, and they’ve exercised their legal right to protect the legitimate interests of their customers and their own interests.
  • The RIAA filed suits against 261 individuals in September.
  • The RIAA says the subpoenas complied with the 1998 Digital Millennium Copyright Act.
  • Verizon and SBC Communications have also gone to court to challenge the industry’s interpretation of the law, which they say violates due-process and free-speech rights and threatens privacy.

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“RIAA Wants to Hack Your PC.” 7 October 2003 <www.wired.com>

  • The RIAA wants the right to hack into your computer and delete your stolen MP3s.
  • The RIAA tried to glue this hacking-authorization amendment onto a mammoth anti-terrorism bill that Congress approved last week.
  • The RIAA drafted amendment would immunize all copyright holders, including the movie and e-book industry, for any data losses caused by their hacking efforts or other computer intrusions that are reasonably intended to prevent electronic piracy.
  • The RIAA has abandoned plans to insert it into the anti-terrorism bills, instead is supporting a revised amendment that takes a more modest approach.
  • The RIAA believes that in the USA Act, it would be outlawed from breaking into FTP sites, websites, or P2P networks, because the damages would be over the $5,000 threshold.
  • The RIAA would be able to hack into individual users, and delete all the copyrighted music, and because it is less than $5,000, it would not be a crime of cyber terrorism.
  • The RIAA is worried about the USA Act to outlaw that same practice, and neither the Senate nor the House versions of that bill include the RIAA’s suggested changes.
  • The RIAA’s version of the bill raises privacy and security concerns.
  • There could be a program that is intended to delete MP3s, but accidently erases everything on a hard disk. This is like a repo man smashing windows and knocking down doors to pull out the 27 inch color TV when you’ve missed a couple of payments.
  • The RIAA would try to limit their liability for consequential damages.
  • The RIAA is still trying to get a copy of its revised amendment included in the anti-terrorism bill called the USA Act.

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“File Sharing: Stealing or Sharing amongst friends?” 8 October 2003 <www.misbridge.mccombs.utexas.edu>

  • People trade millions and millions of MP3s every day without giving it another thought.
  • The term MP3 is short for Moving Pictures Experts Group (MPEG) 1 Audio Layer 3. It represents an algorithm, an encoding technology, which compresses a digital music file by a ratio of approximately 12:1.
  • The MP3 world was changed when Shawn Fanning, a 19 yr. old dropout from Northwestern, conceived of an idea he called Napster, a program that allowed users to share MP3 files over the Net with other Napster users.
  • Music used to be confined to physical mediums: audio cassette tapes and compact discs. Napster brought music to the online world.

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“How Not To Get Sued By The RIAA For File-Sharing (And Other Ideas to Avoid Being Treated Like a Criminal)” 14 October 2003 <www.eff.org>

The Recording Industry Association of America (RIAA) announced on June 25, 2003, that it will begin suing users of peer-to-peer (P2P) file-sharing systems within the next few weeks.

According to the announcement, the RIAA will be targeting users who upload/share “substantial” amounts of copyrighted music. The RIAA has stated that it will choose who to sue by using software that scans users’ publicly available P2P directories and then identifies the ISP of each user.

Then, using the Digital Millennium Copyright Act (DMCA), the RIAA will subpoena the ISP for each user’s name, address, and other personal information in order to sue that user.

While there is no way to know exactly what the RIAA is going to do, who it is going to sue, or even how much music qualifies as a “substantial” amount, users of P2P networks can take steps to reduce their chances of being sued

You can make sure there are no potentially infringing files in your shared folder. This would ordinarily mean that your shared folder contains only files 1) that are in the public domain, 2) for which you have permission to share, or 3) that are made available under pro-sharing licenses, such as the Creative Commons license or other open media licenses

You can remove all potentially misleading file names that might be confused with the name of an RIAA artist or song (e.g., “Usher” or “Madonna”) from your shared folder.

Disable the “sharing” or “uploading” features on your P2P application that allow other users on the network to get copies of files from your computer or scan any of your music directories. We hate this option, but it does appear that it will reduce your chances of becoming an RIAA target right now. This undermines the whole purpose of P2P file sharing though.

The RIAA appears to be targeting subpoenas at users who allow their computers to be “Supernodes” on the FastTrack P2P System (used, for instance, by KaZaA and Morpheus).

In order to further reduce the risk of having your ISP subpoenaed or of being sued yourself, they recommend that you make sure your computer is not being used as a Supernode.

If you receive notice that your ISP has been subpoenaed for your name and address, consider contacting www.subpoenadefense.org, where you can find information about how to defend your privacy and a list of attorneys willing to help. Contact your ISP and ask the people there to notify you immediately if they receive a subpoena seeking your identity.

You can join EFF’s campaign to make file sharing legal by contacting your congressional representitive and demand that Congress hold immediate hearings on ways to save P2P technology and file-sharing while ensuring that artists get paid.

You can also tell a friend, family member, colleague or even stranger on the street about the damage that the RIAA is doing to the Internet, innovation, and consumer choice. There are over 57 million Americans who use P2P file-sharing — more than voted for President Bush — and millions more worldwide — so chances are good that the person sitting next to you on the bus, walking beside you on the sidewalk or driving in the car in front of you is using file-sharing, too. Start the conversation.

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“Digital Millenium Copyright Act of 1998, The. U.S. Copyright Office Summary.” 14 October 2003. <www.loc.gov>

Page 1

  • The DMCA was signed into law by President Clinton on October 28, 1998
  • The DMCA is divided into five titles
  • Title I is the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998” which implements the WIPO treaties.
  • Title II is the “Online Copyright Infringement Liability Limitation Act” which creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.
  • Title III is the “Computer Maintenance Competition Assurance Act” which creates exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.
  • Title IV contains 6 miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.
  • Title V is the “Vessel Hull Design Protection Act” which creates a new form of protection for the design of vessel hulls
  • A complete understanding of any provision of the DMCA requires reference to the text of the legislation itself.

Page 2

  • The WIPO treaties makes certain technical amendments to U.S. law, in order to provide
  • The WIPO treaties also creates two new prohibitions in Title 17 of the U.S. Code – one on circumvention of technological measures used by copyright owners to protect their works and one on tampering with copyright management information – and adds civil remedies and criminal penalties for violating the prohibitions.
  • Title I requires the US Copyright Office to perform two joint studies with the National Telecommunications and Information Administration of the Department of Commerce (NTIA).
  • The WIPO Copyright Treaty (WCT) and the WPPT each require member countries to provide protection to certain works from other member countries or created by nationals of other member countries. That protection must be no less favorable than the accorded to domestic works.
  • Both treaties require parties to protect preexisting works from other member countries that have not fallen into the public domain in the country of origin through the expiry of the term of protection.

Page 3

  • The Copyright Act requires claims to copyright to be registered with the Copyright Office before a lawsuit can be initiated by the copyright owner, but exempts many foreign works in order to comply with existing treaty obligations under the Berne Convention.
  • The WIPO treaties are virtually identical in language obligating member states to prevent circumvention of technological measures used to protect copyrighted works, and to prevent tampering with the integrity of copyright management information.
  • The WIPO treaties provide legal protection that the international copyright community deemed critical to the safe and efficient exploitation of works on digital networks
  • The DMCA implements the obligation to provide adequate and effective protection against circumvention of technological measures used by copyright owners to protect their works
  • The DMCA divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of a copyrighted work

Page 4

  • Copying is used in this context as a short-hand for the exercise of any of the exclusive rights of an author. Consequently, a technological measure that prevents unauthorized distribution or public performance of a work would fall in the second category.

Page 5

  • An exception to the operation of the entire section is for reasons of law enforcement, intelligence and other governmental activities.
  • Another exception is for nonprofit library, archive and educational institution use. The prohibition on the act of circumvention of access control measures is subject to an exception that permits nonprofit libraries, archives and educational institutions to circumvent solely for the purpose of making a good faith determination as to whether they wish to obtain authorized access to the work
  • Another exception is reverse engineering, in which a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.
  • Another exception is encryption research, it permits circumvention of access control measures and the development of the technological means to do so, in order to identify flaws and vulnerabilities of encryption technologies
  • Another exception is protection of minors – this exception allows a court applying the prohibition to a component or a part to consider the necessity for its incorporation in technology that prevents access of minors to material on the Internet
  • Another exception is personal privacy – this exception permits circumvention when the technological measure, or the work it protects, is capable of collecting or disseminating personally identifying information about the online activities of a natural person

Page 7

  • Any person injured by a violation of section 1201 or 1202 may bring a civil action in Federal court
  • Section 1203 gives courts the power to grant a range of equitable and monetary remedies similar to those available under the Copyright Act, including statutory damages. The court has discretion to reduce or remit damages in cases of innocent violations, where the violator proves that it was not aware and had no reason to believe its acts constituted a violation.
  • In addition it is a criminal offense to violate section 1201 or 1202 wilfully and for purposes of commercial advantage or private financial gain. Under section 1204 penalties range up to a $500,000 fine or up to five years imprisonment for a first offense, and up to a $1,000,000 fine or up to 10 years imprisonment for subsequent offenses. Nonprofit libraries, archives, and educational institutions are entirely exempted from criminal liability.

Page 8

  • The DMCA creates four new limitations on liability for copyright infringement by online service providers.
  • The limitations are based on the following four categories of conduct by a service provider: transitory communications, system caching, storage of information on systems or networks at direction of users and information location tools