Wednesday, August 12, 2009

Court Deals a Blow to File-Sharing Advocates...

Like the majority of internet users, Joel Tenenbaum, a graduate student at Boston University, downloaded and shared some music files on BitTorrent without paying for them. Like several thousand people, Tenenbaum received a "cease and desist" letter in the mail from the recording industry (RIAA) threatening a lawsuit for violating their copyrights.

Most individuals, upon being sued by the RIAA for hundreds of thousands of dollars, rush to make a settlement with them before going to court - usually in the range of about $4000. However, Tenenbaum was different. Standing up for file-sharers everywhere, he decided to fight and let the case go all the way to court, and was represented by an all-star lineup of Harvard professors and famous Internet intellectuals. The reason... he believed that the lawsuits were erroneous and that the RIAA's tactics, based on fear and intimidation, were legally questionable.

The court did not agree. Dealing a serious blow to file-sharing advocates, the court handed down a $675,000 judgment against Tenenbaum for downloading 30 songs.

But here's why, despite the RIAA wildly celebrating this verdict, the issue doesn't nearly end here. First, file-sharing has continued to rise exponentially since the lawsuits began in 2004, demonstrating that they are merely symbolic actions that don't have any real effect. The RIAA's real intention, however, may be perceived to have been achieved if you consider their main purpose to have always been establishing legal norms, rather than actually curbing the amount of file-sharing that takes place.

Second, the Tenenbaum case was not exactly exemplary of the arguments that copyright reformists make. For starters, Tenenbaum outwardly admitted to downloading and sharing the songs simply because he wanted them. Yes, that is copyright infringement. However, what reformers argue is that the recording industry is trying to do away with the "Fair Use" principle - a legally recognized right of consumers to make copies of copyrighted works in small samples, for educational use, for journalistic reporting, for satire, etc. Tenenbaum admitted that he wasn't interested in any of this. Thus, until another better-suited case comes along, the Fair Use issue remains unresolved.

Third, the tactics of the RIAA continue to draw the ire of individuals and lawmakers alike. There have been public charges made about how the RIAA has lied to Congress about its approach. It has also tried intimidating universities and ISPs into submission via the threat of lawsuits backed by billion-dollar corporations.

But perhaps most notably, the RIAA's takedown notices themselves are based on completely unscientific measures, leading many to be falsely accused. The RIAA sends out these notices threatening lawsuits based on "only the I.P. addresses of participants on peer-to-peer networks, and not what files are actually downloaded or uploaded". As a result, many people who download material that is perfectly legal might get sued regardless. Furthermore, there are very common ways for individuals to manipulate I.P. addresses so that another user appears responsible for the file-sharing. Thus, even if you've never touched a file-sharing program in your life, nor downloaded a single song, the RIAA might still sue you.

And because the lawsuits they bring are for millions of dollars, with an explicit offer to settle for only a few thousand, most people, of course, choose to take the safer and less expensive route, even when they've been falsely accused and have done nothing wrong.

The Tenenbaum case is just the latest incremental step in resolving file-sharing as a legal and political issue, going back all the way to Napster. While file-sharing advocates have been dealt a blow, history has taught us that this is far from over. Copyright reform is still desperately needed, and until that happens it's only a matter of time until the next game-changing headline appears.


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