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Resnikoff's Parting Shot: The Purple Room

Monday, June 09, 2008
by  presnikoff

Is the RIAA using illegitimate procedures for finding and prosecuting copyright infringers?  The question is receiving extra attention from judges and lawyers in the United States, many of whom are reconsidering the idea that simply making content available online constitutes infringement. 

Just recently, a federal judge ordered a retrial of a case involving Jammie Thomas, an RIAA defendant previously saddled with a $222,000 fine for infringing activity.  The case was initially considered a slam dunk for major labels, though District Court judge Michael J. Davis opened the possibility that the decision hinged on a "manifest error of law" based on making available evidence.

Davis reconsidered the matter in mid-May, though the RIAA received another setback earlier in the month.  In the case of Atlantic v. Howell, the judge denied a request for summary judgment by the RIAA, based on similar questions about making available methodology.

The underlying question is whether allowing a file to be uploaded by a third-party represents a case of infringement.  "The record labels argue that simply having a song in a shared folder, even if no one ever downloaded it from you (i.e., "making available"), infringes the distribution right," Electronic Frontier Foundation (EFF) senior staff attorney Fred von Lohmann recently explained.

But other questions are also surfacing.  Just recently, University of Washington researchers released a report that sharply criticized the investigatory and legal tactics employed by the RIAA, the Motion Picture Association of America (MPAA), and the Entertainment Software Association (ESA) on BitTorrent networks. 

Across two separate testing periods, the researchers infiltrated BitTorrent trading networks with monitoring software, a move that triggered more than 400 takedown notices. 

But the software was not engaged in any downloading behavior, and the group concluded that the trade associations were unfairly targeting IP addresses without specific uploading and downloading data.  "Because current enforcement techniques are weak, it is possible that anyone, regardless of sharing content or using BitTorrent, could get a DMCA takedown notice claiming they were committing copyright infringement," graduate student Michael Piatek told the New York Times.

The study could further sway the opinions of judges, as well as university administrators and ISPs.  Ever the media shaper, the RIAA appears to be battling back through its friendly ally, Billboard.  In a bit of curious timing, Billboard recently ran an in-depth, RIAA-friendly article on Sunday titled, "Inside the Music Industry's Piracy Battle," a piece that gained syndication across Reuters and numerous other publications. 

"Deep inside the national headquarters of the Recording Industry Assn. of America (RIAA) is a purple room," the article begins, romanticizing the mostly unexciting anti-piracy operation.  The article, five pages in length, goes on to describe every painstaking detail in the process of identifying, accusing, and fining copyright violators.

That includes the participation of MediaSentry, a group that assists in the identification of copyrighted works.  The article then outlines the process of generating an upload from a suspected user account, a component of the making available controversy.  "MediaSentry records the IP address, the name of the company or university that owns the ISP, the date and time of the handshake, the user name and the infringed title," Billboard notes.  "The company sends it to the RIAA."

But the article does not discuss whether triggering an upload represents solid evidence in the courts.  But that is the very issue currently being pondered by attorneys and judges, and a potentially serious problem for the RIAA legal strategy.

Of course, placed in perspective, the far more serious issues are essentially non-legal.  That includes an ineffective policing campaign, one that has failed to stem a massive level of piracy and a nosediving CD.  The five-year campaign has also helped to further erode the image of major labels in the media and among consumers.  At root is a simple big brother interplay, one that features upfront fines and an almost hopeless legal challenge - even if the accused is innocent.

That is never a good relationship dynamic, and the sales story could be a reflection of an increasingly alienated consumer.  Of course, it also reflects a largely indifferent consumer, one mostly immune to anti-piracy campaigns. 

Others would point to a momentous and disruptive distribution media shift, one that positions labels as mere spectators.  That is subject to debate, though a quickly-falling sales story is not.  In 2007, US-based albums sales slipped 15 percent, according to figures from Nielsen Soundscan.  And this year, sales remain 16.5 percent below comparable, 2007 figures.

Meanwhile, defense attorneys are starting to gain confidence, even after 28,000 lawsuits and 6,000 pre-litigation notices to university students.  Increasingly, defendants are brushing back against the RIAA, and winning smaller victories.  That includes the recent dismissal of a summary judgment in Atlantic v. Howell, though it also includes the reimbursement of legal fees for a pair of defendants improperly accused by the RIAA.

So what happens next?  Expect a continued dogfight between the RIAA and emboldened lawyers, and an increasingly skeptical judicial system.  That is a tug-of-war that could continue for years, with major labels picking up the costly tab.



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