Supreme Court Rejects Tenenbaum Appeal

Categorize this as dog-bites-man news but since I’ve posted about the Tenenbaum case many times ($675k, More on Tenenbaum, More on the Tenenbaum Judgment, Tenenbaum Postscript, $.70 a Song, and Court Reinstates Tenenbaum Damage Award), and discuss it in class I’ll note that the U.S. Supreme Court, without comment, decided not to hear Joel Tenenbaum’s appeal in his music-piracy case. This is not the end of the case; the federal district court in Boston must decide whether to leave standing the jury’s award of $675,000 in damages to the recording industry.

This is a strange case whose longevity (it began in 2007) reflects its status as an ideological battleground over music piracy–however poorly chosen a field of battle it offers to file-sharing’s true believers.

I Want My Megaupload Files*

Among the interesting legal issues raised by the U.S. Justice Department’s shutdown of Megaupload.com and criminal prosecution of its managers is whether those who used the site to store non copyright-infringing works will be able to retrieve their data. The government claims Megaupload’s legitimate data-transfer service was a front for systematic copyright-infringement, but there’s no claim that those engaged in legitimate uses were benefiting from or knowingly contributing to unlawful activity. So while the government prepares its case those legitimate users hang in limbo, unable to retrieve their data. The Electronic Frontier Foundation, with the support of Carpathia Hosting, is gathering information from those affected through megaretrieval.com and may initiate legal action to hasten the effort.

*not me personally.

ACTA

As reported in “Meet SOPA’s Evil Twin, ACTA,” SOPA’s demise has brought the Anti-Counterfeiting Trade Agreement–ACTA–into focus. (The Office of the U.S. Trade Representative has posted ACTA’s text.)  The U.S. was among the group of nations that signed ACTA last October; 22 European countries signed it last Thursday, prompting protests throughout Europe (ars technica, “Opponents protest signing of ACTA without adequate debate“). The U.S. signed ACTA as an Executive Agreement that (the Obama administration claims) does not change U.S. law and thus need not be submitted to Congress, limiting public commentary on its provisions.  Jack Goldsmith and Larry Lessig challenged the Constitutionality of the administration’s secret ACTA negotiations in a  March 2010 Washington Post Op-Ed.

[ACTA’s] proposals [contained in a leaked January 2010 draft] might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a “congressional-executive” agreement. But the Obama administration has suggested it will adopt the pact as a “sole executive agreement” that requires only the president’s approval.

Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis . . .

The Supreme Court, however, has never clarified the limits on such agreements. Historical practice and constitutional structure suggest that they must be based on one of the president’s express constitutional powers (such as the power to recognize foreign governments) . . .

Joining ACTA by sole executive agreement would far exceed these precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

Obscured by SOPA, ACTA managed to fly under the radar to multi-national ratification. The question is whether it’s too late.

Rep. Darrell Issa (R-CA) joined the chorus of criticism this week when he called ACTA “more dangerous than SOPA” at a panel at the World Economic Forum in Davos, Switzerland. “It’s not coming to me for a vote,” he said. “It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.”

EU Rules ISP Not Required to Monitor for Copyright Enforcement

While Congress considers passing legislation that imposes duties on ISP’s to monitor for and take affirmative steps to counter copyright infringement the European Court of Justice–the EU’s high court–held this week “that Internet service providers could not be required to monitor their customers’ online activity to filter out the illegal sharing of music and other copyrighted material.”

And Yet Again

In 2007 RIAA v Jammie Thomas-Rasset (she was just Jammie Thomas then) resulted in a jury verdict and damages of $222,000 in favor of the RIAA.  A few months later the trial judge had second thoughts about his instructions to the jury and ordered a new trial.  In 2009 RIAA v Jammie Thomas-Rasset II:  Oops I Did It Again resulted in a jury verdict and damages of $1.92 million in favor of the RIAA.  A few weeks ago the trial judge reduced the damages to $54,000.  Last week the RIAA rejected the reduced award but offered to settle with Thomas-Rasset for $25,000.   She rejected the settlement, setting the stage for RIAA v Jammie Thomas-Rasset III:  Damages, in which the only issue will be how much the RIAA receives from its suit.  Her attorney has committed already to RIAA v Jammie Thomas-Rasset IV:  Oops the 8th Circuit Affirms the Constitutionality of Copyright Damages, the Supreme Court Denies Cert, and Thomas-Rasset Has Her Legacy.

Who knows. I am Mr. Glass Half-Empty. Maybe this will turn out not to be a disaster for Thomas-Rasset.

RIAA Damages Reduced

Jammie Thomas-Rassert of Minnesota was the first defendant in an RIAA music-piracy lawsuit to go to trial.  She lost big, appealed, the trial judge decided he mis-instructed the jury on the law and ordered a new trial, she lost again, although even bigger–$1.92 million–and appealed again.   A federal judge just reduced the “shocking” damage award to $54,000.  Good news, perhaps, for BU’s own Joel Tennenbaum and the $675,000 damage award imposed by a jury last summer.

Music Industry Updates

The music industry generated some news while was hobbling.

The RIAA announced that it is dropping its campaign of mass lawsuits.  The RIAA has filed copyright infringement lawsuits against over 35,000 people in the past five years for allegedly pirating copyrighted songs, a fact most college students know well.   Most suits were settled for between $3,000-$5,000, a significant sum for many of those sued but I would be surprised if the RIAA netted much money for its members after the cost of filing and administering the lawsuits.  The suits may have deterred some individuals from pirating copyrighted music–e.g., a lawyer-turned-college-professor with financial assets and a professional reputation to protect–but did not put a dent in the amount of piracy.  The RIAA’s new strategy is to enlist the support of ISPs who agree to tighten the screws on users the RIAA identifies as distributors of copyright-protected files.  Cooperating ISPs will forward RIAA-generated cease-and-desist letters to their offending users.  If a targeted continues to make copyrighted songs available for downloading “they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.” (Sarah McBride and Ethan Smith, “Music Industry to Abandon Mass Suits,”  The Wall Street Journal, 19-Dec-08)  The RIAA is not dropping pending lawsuits and may continue to sue high-volume individual file-sharers.  The WSJ’s law blog speculates the RIAA’s problematic lawsuit against Jammie Thomas was central to its change of strategy.  That’s the case in which the jury awarded the RIAA over $220,000 in damages for Thomas’s piracy, and the trial judge decided a few months later than his instructions to the jury were wrong.  He had told the jury that making copyright-protected songs available in a shared folder constituted copyright infringement.  He reconsidered his instructions after other court rulings undermined the “making available” theory, holding that the RIAA must prove  copyright protected songs were actually copied to establish copyright infringement.

Involving ISPs in an enforcement role is potentially quite effective, if enough ISPs join the effort.  A former student articulated this very concept in 2002.  After graduation he developed monitoring software and a business plan to implement the concept and wooed the RIAA and ISPs to its merits, without success.  He was a half-decade ahead of his time. Alert readers will note that the RIAA’s ISP initiative targets distributors, not downloaders; it appears that free-riders–those who take without giving–will continue to fly under RIAA radar.

Yesterday Apple announced two significant changes in the iTunes st0re, multi-tier pricing and DRM-free music.  The record labels have wanted iTunes to drop the flat $.99/song price model in favor of pricing that reflects a song’s popularity.  Now iTunes will sell songs for $.69, $.99, or $1.29; in exchange the record labels agreed that songs sold on iTunes will be free of digital rights management limits on copying and use on multiple computers.  These changes bring  iTunes in line with the Amazon’s MP3 store.

The pirate mind

A student sent this post from TorrentFreak–love those web names–about BitTorrent tracker PirateBay. The post lauds PirateBay for passing 12 million users, noting that seeders now outnumber leechers, and broadcasts PirateBay’s goal to achieve 20 million users soon. The glimpse into pirate culture afforded by the comments is worth a look, if you care to understand its stubborn, undiminished appeal. It’s about free music/movies/TV shows, yes, but it is also about being part of a community. A community that will coalesce and reform around a new sharing site/protocol/service when PirateBay is hobbled.

Download a song, lose financial aid?

Reading how recording labels are dropping digital rights management and recording artists are finding new ways to reach their audience, one might believe that the music industry’s business model is beginning to catch up with the 21st century. For every tentative toe in the water the industry wages a rearguard action to hold on to the past, such as the the antipiracy provisions contained in the College Opportunity and Affordability Act of 2007, a pending bill I’ve mentioned before. What does federal education-financing legislation have to do with music piracy? Among it’s lengthy provisions it requires that colleges and universities eligible for federal financial aid develop plans to offer alternatives and impose technological barriers to illegal downloading. The draft legislation does not impose penalties on those schools that fail to develop satisfactory plans, but the link between continued piracy and withheld financial aid is implicit in the mere existence of such a provision in this bill. While such indirect regulation of music piracy may be effective, Congress should not be putting colleges in the role of copyright enforcers for the Recording Industry Association of America. The existence of this provision in a a bill otherwise far removed from copyright issues evidences both the RIAA’s lobbying power and the absence of forward-thinking policy in RIAA and Congress.