RIAA Wins, Campuses Lose as Tennessee Governor Signs Campus Network Filtering Law

Last week, the RIAA celebrated the signing of a ridiculous new law in Tennessee that says:

Each public and private institution of higher education in the state that has student residential computer networks shall:

[...]

[R]easonably attempt to prevent the infringement of copyrighted works over the institution's computer and network resources, if such institution receives fifty (50) or more legally valid notices of infringement as prescribed by the Digital Millennium Copyright Act of 1998 within the preceding year.

While the entertainment industry failed to get "hard" requirements for universities in the Higher Education Act passed by Congress earlier this year, the RIAA succeeded in Tennessee (and is pushing in other states) with this provision that gives Big Content the ability to hold universities hostage through the use of infringement notices. Moreover, the new rules will cost Tennessee a pretty penny -- in the cost review attached to the Tennessee bill, the state's Fiscal Review Committee estimates that the new obligations will initially cost the state a whopping $9.5 million for software, hardware, and personnel, with recurring annual costs of more than $1.5 million for personnel and maintenance. Not a penny of this will go to artists, nor to any of the record labels RIAA represents.

Unfortunately, the entertainment industry lobby seems to be succeeding, bit-by-bit, in persuading legislators to coerce universities into buying "infringement suppression" technologies -- expensive technologies that won't stop file sharing on campus networks. Even if the technologies did work (magical thinking in light of encryption), does anyone think they would somehow force students back into record stores or the iTunes Store? After all, today students on campus can swap multiple gigabytes hand-to-hand for pennies (see, e.g., blank DVD-R disks, or the price of portable hard drives, as well as the ease of copying from iPod to iPod).

It makes no sense to force universities to spend millions on technologies that will hobble innovation on campus while failing to stop file-sharing. Why not use those millions to compensate creators and copyright owners, and thereby make file-sharing legal, instead? Now, more than ever, the universities need to come forward with a collective licensing proposal that will protect their campus communities and their own bottom lines.

Meanwhile, universities under the gun should make sure to shun the hype of network filtering when possible and seek solutions more amenable to teaching and academic freedom -- our whitepaper on copyright infringement technologies on campus networks is a good place to start. For more detail, EDUCAUSE has in-depth resources on P2P, file sharing, and the Higher Education Act.

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Capitol v. Thomas: Judge Orders New Trial, Implores Congress to Lower Statutory Penalties for P2P

Joining the ranks of federal district judges in Arizona and Massachusetts, District of Minnesota Chief Judge Michael Davis today concluded [44-page PDF] that simply making a music file available in a shared file does not violate copyright law, and ordered a new trial in Capitol Records v. Jammie Thomas.

The case made headlines last year as the first peer-to-peer file-sharing case to go all the way to trial. In October 2007, a jury held Thomas liable and awarded $222,000 in damages to the record companies, based in whole or in part (it wasn't clear) on an instruction that merely making a file available violates a copyright owner's distribution right. Earlier this year, Chief Judge Davis said he was concerned that he might have made a mistake with that instruction and asked for more briefing on whether Thomas deserved a new trial. EFF, joined by Public Knowledge, the United States Internet Industry Association, and the Computer and Communications Industry Association filed an amicus brief urging the Court to reject the RIAA's making available theory.

One key holding:

The Court’s examination of the use of the term “distribution” in other provisions of the Copyright Act, as well as the evolution of liability for offers to sell in the analogous Patent Act, lead to the conclusion that the plain meaning of the term “distribution” does not including making available and, instead, requires actual dissemination.

. . .

If simply making a copyrighted work available to the public constituted a distribution, even if no member of the public ever accessed that work, copyright owners would be able to make an end run around the standards for assessing contributor copyright infringement.

In addition, Chief Judge Davis called on Congress to amend the Copyright Act:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases such as the one currently before this Court. . . . While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

. . .

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

EFF applauds Chief Judge Davis's thorough rejection of the RIAA's effort to rewrite copyright law and thereby avoid the trouble of actually proving any infringement has occurred. And we wholeheartedly endorse the court's call to amend the Copyright Act's oppressive damages provisions.

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Order Against Comcast Issued, FCC Credits EFF

The FCC has finally published its order (adopted on August 1) directing Comcast to stop blocking BitTorrent traffic. The 34-page ruling makes for surprisingly enjoyable reading, at least as FCC publications go. The order follows the basic outline that was explained by Chairman Martin in his statement on August 1, 2008. But there are some interesting additional tidbits:

• The FCC specifically cites and credits EFF's testing in discussing Comcast's BitTorrent blocking activities. And it also relies explicitly on evidence gathered by individual Internet users Adam Lynn, Jeffrey Pearlman, David Gerisch, Dean Fox, and Robert Topolski. The order concludes with this remarkable invitation: "We invite ... members of the public to keep a watchful eye on Comcast." And, as it happens, EFF is building the Switzerland network testing tool to help Internet users to do just that!
• The Commission dismisses Comcast's claim that it was merely "delaying" BitTorrent traffic as "verbal gymnastics," specifically finding that "the company has engaged in blocking." Glad to see we can put that semantic debate to rest.
• The FCC sets out a standard for reviewing discrimination undertaken in the name of "reasonable network management": the "practice should further a critically important interest and be narrowly or carefully tailored to serve that interest." According to the FCC, even if congestion management was "critically important," Comcast's methods were hopelessly over- and under-inclusive. The Commission cited EFF's testing on this point, noting that Comcast admitted to blocking BitTorrent seeding without regard to neighborhood congestion or user-specific bandwidth usage.
• Also in accord with the comments submitted by EFF, the FCC called Comcast out for its failure to disclose its practices to its customers, noting that "Comcast's first reaction to allegations of discriminatory treatment was not honesty, but at best misdirection and obfuscation."
• The FCC spends 12 pages justifying its regulatory authority to issue the order, invoking its Title I "ancillary jurisdiction" to regulate in the name of "national Internet policy" as described in seven statutory provisions, all of which speak in general terms about "promoting deployment," "promoting accessibility," "reducing market entry barriers," and the like. Reading this section of the order, one can't help but feel sympathy for Commissioner McDowell, who in his dissent worries that "under the analysis set forth in the order, the Commission can apparently do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment." If Comcast sues to overturn the order, you can be sure that this is where it will focus its attack.
• And now for the remedy. Quoting Ronald Reagan's mantra, "trust but verify," the Commission has ordered Comcast to do 3 things within 30 days:
  

  (1) disclose to the Commission [but not the public?] the precise contours of the network management practices at issue here, including what equipment has been utilized, when it began to be employed, when and under what circumstances it has been used, how it has been configured, what protocols have been affected, and where it has been deployed;

  (2) submit a compliance plan to the Commission with interim benchmarks that describes how it intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year; and

  (3) disclose to the Commission and the public the details of the network management practices that it intends to deploy following the termination of its current practices, including the thresholds that will trigger any limits on customers’ access to bandwidth.

So, while we continue to be worried about the future risk of regulatory capture of the FCC by large ISPs, and have our doubts about the Commission's authority to regulate the Internet, the order hits the nail on the head when it comes to analyzing what Comcast actually was up to.

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Universities Quietly Fighting Back Against RIAA Tactics

Students that receive notices from the RIAA accusing them of illegal filesharing don't have many options. Innocent or not, their choices are limited to either paying the $3000-$5000 settlement, or going to court — where the RIAA's deep pockets guarantee an outrageously expensive legal battle.

But universities themselves do have ways to fight the RIAA's strong arm tactics, and more and more of them are choosing to quietly fight back. The Chronicle of Higher Education reports this week that schools are growing resentful of the constant stream of pre-litigation letters from the RIAA, and the costly investigations that come with them:

Responding to RIAA notices used to be part-time work for one person, said William C. Dougherty, assistant director for systems support at Virginia Tech. "Now he's doing it full time and has an assistant," he said. "Our attorneys are also involved on almost a daily basis, as am I."

The article describes several ways universities are resisting the RIAA. Some are refusing to forward the RIAA's letters to students, claiming that doing so conflicts with their responsibilities under the Family Educational Rights and Privacy Act. Others are trying to quash subpoenas for the identity of students linked with a given IP address by claiming such requests place an "undue burden" on the school.

These shifts in policy, made with little fanfare or press coverage, are commendable. But it would have been better if schools had avoided getting entangled in the RIAA's losing battle from the start. As the Chronicle article notes, the RIAA response to university non-cooperation is to cite earlier willingness to forward pre-litigation letters and respond to subpoenas.

As EFF's Senior Staff Attorney Fred Von Lohmann wrote in an editorial way back in 2003, universities would be better off if they refused to keep track of IP numbers:

Campus computer networks... do not have to keep track of who has what IP number at any given time. By properly configuring their campus networks, colleges and universities can shuffle IP numbers among different individuals on a regular basis, a common practice among ISPs. That way, when the subpoena arrives, the administrators can honestly say that they have no identifying information to provide.

Institutions of higher education have an important job, and that job is to educate their students — not to play along with the RIAA's intimidation game. By protecting their students' privacy, universities can focus on their mission and avoid the unnecessary headaches and legal problems that the recording industry seems bent on creating.

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FCC Rules Against Comcast for BitTorrent Blocking

On Friday, the FCC voted, 3-2, to punish Comcast for its surreptitious interference with BitTorrent uploads (a practice that EFF helped uncover and document in October 2007). The Commission adopted an order (text of which hasn't been released yet) finding that Comcast violated the neutrality principles set out in the FCC's 2005 "Internet Policy Statement." According to the statement released by FCC Chairman Martin, the order will require Comcast to disclose its practices and stop discriminating against BitTorrent traffic (Comcast, for its part, has already announced that it will be moving to different mechanisms to throttle high-bandwidth users.)

We're pleased that the FCC recognized that Comcast's behavior violated the Internet Policy Statement and could not be excused as "reasonable network management" -- we said as much in our comments to the FCC. We are particularly encouraged that the Chairman Martin specifically took Comcast to task for not adequately disclosing what it was up to -- for the free market to work, customers needs to know what they are buying.

But it's important to recognize that this is just the beginning, not the end, of the fight. The Commission made it clear that it intends to police this frontier of net neutrality on a case-by-case basis, responding to specific consumer complaints. In order to bring these kinds of complaints, however, concerned Internet users need more and better tools to detect ISP misbehavior. That's why EFF today announced the release of the Switzerland network testing tool, the second tool released by EFF's "Test Your ISP" project.

There is one aspect of Friday's FCC ruling, however, that seriously troubles us. Consider how the FCC got here. In 2005, without any authority or guidance from Congress, the FCC announced a "policy statement." Now, in 2008, it decided that it has the power to enforce the policy statement and announced an "enforcement framework" that will be applied to future complaints. Again, all this without authority or guidance from Congress. As Commissioner McDowell put it in his dissent from the Comcast order, "Under the analysis set forth in the order, the Commission apparently can do anything [to regulate the Internet] so long as it frames its actions in terms of promoting the Internet or broadband deployment." Can the FCC be trusted with that kind of power? Remember, historically, the FCC has been subject to "regulatory capture" -- in other words, over time, they end up doing the bidding of the very telecom giants they are supposed to be regulating.

So while there is a great deal to like about the Internet Policy Statement, and today the FCC appears to have come to the right conclusions about Comcast's behavior, what if the next "policy statement" turns out to be a disaster for net neutrality? After all, a polar bear makes a great bodyguard, until it decides to eat you.

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Legal Filesharing on Campus?

As EFF has been saying for years, the best way forward in the wars over illegal filesharing is the creation of a Voluntary Collective Licensing system. It sounds simple enough: Music fans would pay a small fee each month in exchange for a blanket license to share and download whatever they like. Collecting societies would collect the money and divvy it up between rights-holders based on which files are shared the most.

But how would such a system get started? One way to get a system like this up and running would be to start up in a university setting. As the RIAA well knows, students are already sharing files with increasing regularity over university P2P networks -- and increasingly getting sued for it. And, since universities are already charging fees to their students, it would theoretically be possible for universities to add a voluntary option to charge for such a service.

Recent UC Berkeley School of Information graduates Matt Earp and Andrew McDiarmid have produced an excellent masters thesis on how such a university-based VCL system might work. Their report, Investigating Voluntary Collective Licensing for Music File-Sharing at UC Berkeley, starts with the following questions:

Would such a system be attractive to students?
Is it technically achievable?
Is it in Berkeley's best interest?
How might the industry respond?

Earp and McDiarmid conducted interviews and surveys with students, UC administrators, music informatics firms, and music professionals with experience in digital music licensing. Not surprisingly, they found strong support in the UC community for VCL, with administrators expressing frustration at their difficult balancing act between adhering to copyright law and maintaining student privacy (a statement echoed by UCLA Director of IT Strategic Policy Kent Wada in his Educause paper "Get me out of the Middle"). They also found that 65% of students surveyed said they were willing to pay into a VCL system.

Interviews with music industry insiders were less promising. Earp and McDiarmid found music industry executives "wedded to the physical model" of selling plastic CDs and reluctant to give up control of digital content in favor of alternative compensation schemes. But they also found some reason for hope, noting that Warner Music has recently hired digital music guru Jim Griffin to investigate licensing options for the company.

Voluntary Collective Licensing will happen sooner or later. Hopefully universities will take advantage of their unique position to become part of a solution that gets artists paid while protecting their students from the constant threat of strong-arm tactics from an out-of-touch music industry empire.

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Laser Printers Found Guilty of "Making Available" Crimes

Two professors and a student at the University of Washington released a study today explaining "Why My Printer Received a DMCA Takedown Notice" [PDF]. They argue that DMCA takedown notices, used as the principle mechanism for enforcing copyright on the Internet, should be viewed skeptically. We couldn’t agree more!

The researchers examined BitTorrent file-sharing networks using specially designed BitTorrent clients to monitor the traffic on these networks. Even though their clients did not upload or download any files, the researchers received over 400 takedown requests accusing them of copyright infringement. Every one of those notices was a false positive. Their results show that "potentially any Internet user is at risk for receiving DMCA takedown notices today.”

In fact, as the New York Times put it, "an inanimate object could also get the blame." Three laserjet printers used in the study were accused in takedown letters by the MPAA of downloading copies of "Iron Man” and the latest Indiana Jones film.

Colleges and universities should pay close attention to the findings, given that students often face harsh penalties from their institutions if they are hit with a DMCA notice. The RIAA has admitted that it bases its DMCA notices to universities and colleges solely on identifying files as "available” for sharing even though two courts, D. Mass. [PDF] and D. Ariz. [PDF], have confirmed that making files available, in and of itself, does not violate copyright law, and even making files available can cause no conceivable financial harm. (The RIAA does insist that their investigators actually download files before sending prelitigation letters and filing lawsuits.)

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Score Two for Defendants in the P2P Wars

Yesterday saw two important court decisions in the file-sharing wars, both favoring defendants. First, Tanya Andersen, a single mother on a disability pension who successfully fought off allegations of illegal file-sharing, was awarded almost $110,000 in fees and costs. Andersen had insisted she had done nothing illegal, and demanded that the RIAA produce evidence linking her to the alleged infringement. The RIAA couldn't, and dropped the case instead--but not soon enough to avoid being hit with a fee award. Of course, this award alone, or even combined with the fee award obtained by another accused file-sharer, Deborah Foster, is unlikely to deter the RIAA from continuing its mass litigation campaign against file-sharers, but it should at least encourage the records companies to take more care in how they bring and prosecute these actions.

Speaking of which, the other major development of the day was a decision by Minnesota federal Judge Michael Davis, who presided over the copyright infringement trial of Jammie Thomas, requesting briefing on whether Thomas should receive a new trial. Last October, Thomas was found liable for infringement and hit with a $222,000 judgment. The court is concerned that it may have made a mistake by instructing the jury that Thomas could be found liable if she made copyrighted songs available in a shared folder, even if there was no evidence that anyone actually downloaded those songs. There's good reason for this concern--as EFF noted at the time, and several courts have since affirmed, "making available" is not a cause of action under copyright law--and we applaud the court's willingness to revisit this crucial question. All interested parties (including friends of the court) must submit their arguments by May 29, 2008.

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Big Victory in Atlantic v. Howell: Court Rejects RIAA "Making Available" Theory

The district court in Atlantic v. Howell today denied the recording industry's motion for summary judgment against Mr. and Mrs. Howell, two lawyer-less defendants caught up in RIAA's litigation campaign against file-sharers. EFF filed an amicus brief on their behalf in the case and participated in oral argument.

In its order, the court delivers the most decisive rejection yet of the recording industry's "making available" theory of infringement (i.e., if someone could have downloaded it from you, you've violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that "[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords." The court goes on to conclude that downloads by the recording industry's own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

The likely next stop for Mr. and Mrs. Howell is a bench trial (neither party asked for a jury trial) in Phoenix, probably in September. EFF will continue to try to find them counsel.

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Making Available is Not Distribution, Says Court in London-Sire v. Doe

Same day, two federal courts, two different rulings on "making available."

As we mentioned yesterday, a New York court in Elektra v. Barker gave a boost to the recording industry by ruling that an offer to distribute a file on a P2P network can infringe the distribution right, even if no one ever actually downloaded it from you. Well, on the same day, a Massachusetts court in London-Sire v. Doe ruled just the opposite, holding that "merely exposing music files to the internet is not copyright infringement" (we just received the ruling today).

EFF filed an amicus brief in this case (formerly known as Atlantic v. Does 1-21), and our arguments appear to have found a more receptive audience in Boston that they did in New York City (the judge thanks us for our participation on page 11). The 52-page ruling is the most extensive analysis yet of the recording industry's "making available" argument, which claims that you infringe copyright merely by having a song in your shared folder, even if no one ever downloads it.

As we discussed yesterday, a key issue is whether a mere "offer to distribute" is enough to infringe the distribution right, in light of the fact that a mere offer can be enough to constitute "publication." Unlike the court in Elektra v. Barker, the judge in London-Sire v. Doe concludes that "distribution" and "publication" are not identical -- "even a cursory examination of the statute suggests that the terms are not synonymous." If you are interested in the details, the court's analysis is highly illuminating (p. 24-27), touching on a number of earlier rulings, such as Hotaling v. Church of Jesus Christ of Latter-Day Saints and A&M v. Napster (copyright nerds will recognize those as pivotal decisions in this area).

While this is an important victory, the decision may not change much for most individuals targeted for RIAA lawsuits. The judge concludes that evidence of an "offer to distribute" is enough to permit a lawsuit to move forward, even if it's not enough to decide the matter. That means that the RIAA will keep filing lawsuits based on the investigations of MediaSentry. Moreover, the court rejected EFF's argument that the distribution right does not reach digital networks at all.

In light of the disagreement between these two rulings, it's likely that these issues are headed for more consideration by other courts. But we're grateful that these judges (in both Elektra and London-Sire) are doing a thorough job considering these important questions, instead of just taking the RIAA's word on what the law is.

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