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When singer-songwriter John Hiatt performed with his band in Westbury, N.Y., this month, he did what every performer on a promotional tour does: He announced that his new CD was available in stores. “Or,” he added with an impish grin, “you could download it from a friend.” As his audience laughed knowingly, he wagged his finger. “But be careful!” What Hiatt was referring to, of course, was the sharing of music files over the Internet, and the controversial response of the Recording Industry Association of America (RIAA). Since June, it has sent Internet service providers and a handful of colleges more than a thousand subpoenas demanding information about individuals who allegedly infringed on copyrights. The association has said it will begin suing violators this month, and expects in time that there will be thousands of lawsuits. Some lawyers see this as long overdue, an initiative both legally and morally correct. Others see a strategy built on suing your own customers-a measure so drastic it’s almost an admission of failure. On one point, several lawyers on both sides agree: The law in this area is hard-pressed to keep pace with technology. “We’re trying to get the message out to people that this is not a victimless crime, and it’s not a crime you can engage in without fear of consequences,” said Matt Oppenheim, the RIAA’s senior vice president for business and legal affairs. Marci Hamilton, a professor at Yeshiva University’s Cardozo School of Law, wrote an article posted on the legal Web site FindLaw supporting this position. For a couple of years, Hamilton said in an interview, no one seemed to know what to do about file-sharing. “I’m not the RIAA’s biggest fan,” she said, “but I think somebody has to start imposing the law on the Web. And I think the RIAA is in a good position to do it now.” The Electronic Frontier Foundation has led the opposition. A San Francisco-based legal organization, it has defended companies that produce file-sharing software and has assisted Internet service providers (ISPs) resisting subpoenas. “Artists should be paid,” said Fred von Lohmann, the foundation’s senior intellectual property attorney. “Let’s develop a mechanism to accomplish that goal and make file-sharing legal.” The obvious solution, he said, is some form of licensing-preferably adopted by the industry or, if necessary, imposed by Congress. Branding customers as criminals isn’t the answer, he said. News of the subpoenas came just a few weeks after the RIAA sued four college students who used their personal computers to create informal networks from which fellow students could download music for free. Though file-sharing programs operate differently, all allow users to designate files that others, using the same program, can download to their computers. The software also permits users to view all files available at any given time. Estimates of the number of file-sharers have been slippery. Last month the Pew Internet and American Life Project announced that its survey found that 26 million Americans share music files. In a manner designed to maximize publicity, the RIAA announced in April that four students had violated copyright laws, and it claimed thousands of dollars in damages. The students could have been penalized $150,000 for each infringement, and the complaints alleged that there had been thousands of infringements. In May, the music association announced that the suits had been settled. The students had agreed to pay the association amounts ranging from $12,000 to $17,000. In this context, the subpoenas evoked more than a little apprehension. The message board has been buzzing at Zeropaid.com, a site devoted to file sharing. There were expressions of fear and anger and suggestions of ways to avoid detection. Wrote one nervous file-sharer: “Im just going to have to cancel my DSL [Internet service], and get the dsl in my dogs name, so his personal info of what kind of dog food he likes can be obtained.” Some people who received subpoenas contacted the Electronic Frontier Foundation. It hasn’t played a direct role in defending individuals but posted a list of eight outside lawyers willing to help. Interviews with three of these lawyers confirmed that the RIAA is casting a net far wider than college campuses. The lawyers would only answer general questions. One said he’s talked to five individuals. The other two would say only that they’ve been contacted by fewer than 10. The individuals range from teenagers to grandparents. Some are students, others doctors. When the RIAA issues a subpoena to an ISP demanding information about an IP address, it has no way of knowing who the alleged offender is. One lawyer who’s been contacted for help expressed an appreciation for the complexity of the issues for both sides. “The right of copyright owners to enforce their copyrights is vital to promote the creativity of our society,” Daniel Ballard wrote in an e-mail responding to a reporter’s questions. “The RIAA is in a tough spot. Creating an atmosphere that fosters respect for copyright is one of their mandates. The ease of peer to peer file sharing, however, makes that task very difficult especially when one considers the inherently fuzzy morals of youthful music purchasers.” But the RIAA’s interest is “at bottom, financial,” said Ballard, an associate at Sacramento, Calif.’s McDonough Holland & Allen. “My interest is not to protect copyright infringers. My interest in these cases is to protect copyright law from being used as a bludgeon to pound our privacy rights into the ground.” One prominent and vocal defender of aggressive copyright enforcement is the singer Madonna. She made a splash last spring when she adopted a common anti-piracy technique used by music labels. Known as “spoofing,” it entails saturating search displays on file-sharing software with decoy files. These may be blank or contain truncated versions of songs. Madonna had her label upload files that purported to be songs from her new album onto peer-to-peer file-sharing services. Instead of hearing the dulcet tones of her music, however, fans who downloaded the files got an earful of what Madonna thinks about file-sharing. “What the fuck do you think you’re doing?” the pop star’s voice demanded when fans clicked on the files. Hackers struck back, posting downloadable files of unreleased songs on her Web site. Since then, Madonna’s memorable phrase has been widely used in works by other artists. ISPs resist The ISPs that have received subpoenas authorized by the Digital Millennium Copyright Act of 1998 include Verizon, Pacific Bell, Earthlink, Time Warner Cable and Comcast Cable. Verizon fought the subpoenas but lost, pending appeal. RIAA v. Verizon Internet Services, No. 02-MS-0323 (D.C. Cir.). Pacific Bell filed a complaint last month for declaratory relief from its subpoenas. Pacific Bell Internet Services v. RIAA, No. C 03 3560 (N.D. Calif.). Colleges also function as service providers, and several have received subpoenas demanding that they, too, turn over names of alleged infringers. They include DePaul University, Loyola University, Northeastern University, Bentley College, Massachusetts Institute of Technology and Boston College. Most seem to be complying, but last month M.I.T. and Boston College filed motions to quash. Boston College has been served with three subpoenas so far, according to Joseph Herlih, its general counsel. Given the anonymity of an IP address, these could have targeted a professor or even the college president, Herlih acknowledged. To date they’re aimed at students. “We are not trying to protect anyone allegedly involved with copyright violations,” he said. “We are only trying to establish a proper procedure so in the future we can respond to RIAA subpoenas and know that we are not violating FERPA,” the Family Educational Rights and Privacy Act, which requires schools to protect students’ private information. Some see the subpoenas as an industry attempt to recover from a legal setback. “Suing your own customers is obviously a very drastic step,” said Marc Morgenstern, chief executive of New York-based Overpeer, a company that sells anti-piracy software. “It’s something that wouldn’t have happened if the current legal strategy had borne fruit.” Morgenstern was referring to the RIAA’s loss in April in its lawsuit against Grokster, which followed two big wins. The first win was against Napster, the company that pioneered file-sharing software. California trial and appeals courts found that it was likely liable for contributory and vicarious infringement in its oversight of the sharing of copyrighted materials. The district court issued an injunction shutting down the service, ruling that Napster knew materials were being shared and had the ability and responsibility to remove them from its servers. A&M Records v. Napster, No. 00-16401 (9th Cir. 2001). The company has filed for bankruptcy. The second win shut down Aimster, a company that ran a similar service. Unlike Napster, it didn’t administer servers that contained copyrighted materials. Instead, it permitted computers to share files directly, so it didn’t know the contents. An Illinois trial court rejected this defense. An appeals court called the design “willful blindness.” In re Aimster Copyright Litigation, No. 02-4125 (7th Cir. 2003). Grokster’s software is similar, but the company had a different defense. The Aimster appeals court found the company had “failed to produce any evidence that its service has ever been used for a noninfringing use . . . .” Grokster convinced the California district court that users did employ it for lawful purposes. Looking for guidance from the Supreme Court’s 1984 decision in Sony v. Universal City Studio, 464 U.S. 417, the Betamax copying case, the court found that this evidence tipped the balance. Metro-Goldwyn-Mayer Studios v. Grokster, No. CV01-08541 (C.D. Calif.). The decision is on appeal. Some observers, like Cardozo’s Hamilton, believe that ultimately the Supreme Court will also have to resolve the file-sharing wars. “It’s the Sony case all over again, and the court will have to interpret-assuming Congress doesn’t step in and change the landscape,” Hamilton said, referring to two bills currently in the House that would strengthen the digital copyright law. Hamilton called the bills draconian and premature. “My attitude is wait and see,” she said. She’d like to give the law a chance to work. The Electronic Frontier Foundation’s von Lohmann begs to differ. “The idea that you can sue everyone into submission is naive,” he said. “It puts me and a number of other commentators in mind of prohibition.” The RIAA’s Oppenheim said the enforcement effort “is now part of our normal, daily operations. “Individuals can’t assume that there are no police on the Internet, or on the peer-to-peer highway,” he said. “And if they speed, they will get caught.” Hechler’s e-mail address is [email protected]

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