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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Offering to Distribute = Distribution, says Court in Elektra v. Barker

Yesterday, a federal court ruled in Elektra v. Barker that "an offer to distribute ... for the purpose of further distribution" may be enough to violate a copyright owner's distribution right. This ruling opens the door open for civil attempt liability when it comes to distribution -- in other words, that having a song in a shared folder without authorization might be infringing, even if no one ever downloads it from you.

Back in January 2007, the court heard arguments in Elektra v. Barker, one of the thousands of cases brought against individuals by the recording industry. The briefing (amicus briefs were filed by EFF, CCIA, MPAA, and the United States) focused on the recording industry's "making available" argument in these cases. EFF has argued that "making available" really amounts to a new "attempted distribution" theory of copyright infringement, where the record industry can collect $750 per song even if no one ever made any copies of the songs in your shared folder.

In yesterday's ruling, the court appears to have been led astray by language in other decisions that treats "distribution" as synonymous with "publication" (which does include offers to distribute). While the two terms certainly shed light on each other in some circumstances, it is a mistake to treat them as identical in all circumstances. The concepts of "publication" and "distribution" serve very different purposes in the Copyright Act. Before the 1976 Copyright Act, federal copyright did not apply to a work until it was "published." So the moment of publication was critical both for calculating the duration of a copyright and for determining whether a work fell into the public domain for failure to comply with formalities (like including a copyright notice). By allowing mere offers to distribute to trigger publication, Congress was adopting a rule that limited the scope of copyright law. Just putting a book on sale would start the clock running on copyright. And if the book was even offered for sale without a copyright notice, you lost the copyright immediately. Those who were later sued for infringement wouldn't be put to the trouble of proving when the first copy was sold (which might have happened many years earlier).

When it comes to distribution, in contrast, including mere offers as acts of infringement expands the scope of the copyright, allowing copyright owners to reach mere attempts at distribution. There is no justification for this, since mere attempts do not actually harm copyright owners -- I can have thousands of songs in my shared folder, but if no one ever downloads any of them, how has the copyright owner been harmed? Moreover, when a copyright owner sues, the evidence should still be fresh (at least when compared with evidence regarding the initial publication of a work), making it unnecessary to allow a mere offer to stand in for actual evidence of distribution.

The good news is that this "offering to distribute" theory is still far from accepted in copyright circles, is at odds with the Ninth Circuit precedent (see Perfect 10 v. Amazon.com), and is rejected by all the leading copyright law treatises. In addition, the court did not reach EFF's additional argument that the distribution right does not apply to digital transmissions at all. We'll have to leave that fight for another day.

The next ruling to address the "making available" argument is likely to be in Atlantic v. Howell, which may shed some light on how much influence yesterday's Elektra v Barker ruling will have on other judges.

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Comcast Reduces Discrimination, Plans To End It Altogether

Last month, shortly before the FCC held its first hearing in an investigation of Comcast's interference with BitTorrent and other P2P protocols, we noticed that Comcast was no longer injecting forged TCP RST packets in the simple tests we had been running on its cable network. Those tests had been showing interference through January 2008. Some sources with access to larger datasets informed us that the cable ISP was nonetheless still using RST packets against some BitTorrent sessions, just not the simple uses of BT and Gnutella that we had been testing. The status quo: Comcast is still interfering with P2P, but they are being more subtle about it.

Today, Comcast has announced that it will phase out its discrimination against P2P protocols entirely by the end of the year. According to the WSJ's coverage, the cable company is considering switching to non-discriminatory dynamic traffic shaping, which — as we've previously argued — is a much more responsible way of coping with network congestion. We're also pleased that Comcast is collaborating with the BitTorrent developers; we've been urging them to collaborate with the wider technical community for some time.

This is a big victory for common sense and a big victory for an Internet based on open standards, not the whims of major ISPs. But there's still more work to do.

In particular, the Internet community clearly needs to do a lot more testing for discrimination by the thousands of ISPs around the planet. EFF — and a number of other groups — have been working to build tools for those tests. In a follow-up post, we'll talk about projects that have already launched, and others that are in the pipeline.

[Update: The follow-up post is now online.]

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Monetizing File-Sharing: Collective Licensing Good, ISP Tax Bad

Last week at SXSW, music industry veteran Jim Griffin broached the idea that file sharers pay a small fee through their ISPs in exchange for unlimited file sharing. There is a great deal to recommend an idea like this (as we've been saying since 2004), but there's a right way and a wrong way to go about it.

We are big fans of a collective licensing solution for the music file-sharing dilemma: music fans pay a few dollars each month in exchange for a blanket license to share and download whatever they like; collecting societies collect the money and divvy it up between their member artists and rightsholders. It's not a radical idea -- that's roughly how we pay songwriters for radio play, concert hall performances, and the music playing in your favorite restaurant.

But this should not turn into, as some have called it, an "ISP tax." Any collective licensing solution should be voluntary for fans, artists, and ISPs alike. We don't have a compulsory "restaurant tax" for songwriters -- there's no reason to have a compulsory "Internet tax" for file sharing. It should give fans what they want, rather than trying to withhold things from them -- after all, artificial scarcity is what got us into this mess. And it must give artists the freedom to choose among competing collecting societies, which is the only mechanism that will guarantee the kind of transparency and efficiency that much of the current music industry lacks.

Read on for a quick reference guide to help distinguish a good collective licensing plan from a bad "ISP tax."

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