Old Laws/New Media

Topic Owners: Debbie Rosenbaum, Matt Sanchez

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Teaching guide to class

Precis

The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

Guest

Professor Charles Nesson.

Professor Nesson is a Harvard Law School professor and a founder of the Berkman Center for Internet & Society. Since Fall 2008, Prof. Nesson has defended Boston University student Joel Tenenbaum in a file-sharing lawsuit brought by the recording industry.

Part I. Background

The course will open with a brief overview of tensions that arise when we attempt to apply old laws to new media. The discussion will touch upon major points of conflict that have arisen in recent years, focusing on issues in Internet communications and media. The discussion will then address the changing landscape of online music distribution to prep for the file-sharing case study to follow. The below readings inform this discussion:

Topic Introduction: Conflict between old laws and new media

• In a Brave New World, Old Laws Still Exist

Overview of attempts to apply existing copyright law to online file-sharing

• RIAA vs. The People: Five Years later
• RIAA's view on piracy & The RIAA: What we do
• Overview of Music Industry Business Model
• File sharing: It’s history, growth, and impact on the music industry.

Part II. Case study: RIAA vs. Tenenbaum

Joel Tenenbaum, a 25-year-old Physics graduate student at Boston University, was sued in 2007 by the Recording Industry Association of American (RIAA) for allegedly downloading seven music files and making them available for distribution on the KaZaA file-sharing network. Prior to the lawsuit, Joel offered to settle the dispute for $500, but the music companies rejected demanded thousands more. At trial, Joel faces statutory damages under the Copyright Act of $750 to $30,000 for each infringement, or up to $150,000 each if he is found to have engaged in a "willful violation." Tenenbaum could be forced to pay more than $1 million in damages over seven songs. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a team of students – came to Tenenbaum's defense. See the Tenenbaum defense team's website for a quick background on the case.

Further readings:

• Complaint against Tenenbaum
  • Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. J-01-2
  • Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. (J-01-3, -4, -5, -6, -7, -8, -9)
• More information at Joel Fights Back
• Reference: How RIAA Litigation suits work
• Reference: Ray Beckerman's Blog

RIAA's use of the Copyright Act

Some questions we asked students to consider:

• Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
• Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
• The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

RIAA's use of the Copyright Act's statutory damages framework to Internet users

Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.

• Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process
• Reference: Copyright Act's statutory damage provisions (see here and here).
• VIDEO: Arguments between Professors Nesson and Fisher

RIAA's use of Copyright Act to try and shape norms of Internet usage

• EFF article on RIAA's litigation strategy

New Technology vs. Courtroom Norms

This portion of the class session dealt with the tension between pre-Internet courtroom traditions and rules versus modern-day expectations for transparency and instant access to which the Internet has given rise. This issue came to the fore in the Tenenbaum case when Joel filed a motion to webcast his trial. Our IIF session occurred after the District Court granted the motion but before the First Circuit Court of Appeals reversed the District Court. The arguments before the First Circuit and the First Circuit's subsequent decision added a rich body of materials from which a future class should draw. The outline below is updated to reflect this.

A future course offering can focus the students' reading on the following two decisions (only one of which was available for our class session).

Suggested Reading: Judge Gertner’s opinion

Suggested Reading: First Circuit reversal

Further reading: Summary of legal issues, by Morris Singer and the Tenenbaum defense team

Further listening: Oral arguments before the First Circuit

Our IIF class session and the oral arguments at the First Circuit presented a diverse array of dimensions to this issue: from the common law tradition of a public trial, to OJ Simpson, to the Constitutional underpinnings of the right to an open courtroom. Below is a suggestion on how to organize these issues for a future class offering, as well as links to relevant source materials.

The common law tradition of an open courtroom

VIDEO: Professor Nesson's thoughts on the majesty of the courts

Oral Argument excerpt: Listen to minutes 36:00 – 36:30 of Professor Nesson’s oral argument, discussing the "village" being present for trial proceedings

Suggestion on reference for the policy considerations that animated the common law's tradition of open trials: Beccaria, On Crimes and Punishments 15

The Internet as compared to television

A key component to this issue is how the Internet compares to the traditional forms of media that have already been addressed by courts over the years.

VIDEO: Professor Nesson on OJ Simpson's impact on cameras in the court

Audio: Listen to minutes 32:15 – 35:00 of Professor Nesson’s oral argument

VIDEO: Role of TV in the courtroom

A future course offering can consider further discussion or background reading on how the courts reacted to television in the courtroom. This serves as a historical snapshot of how the Court reacted the last time it was confronted with a new and revolutionary communication technology. Potential references for such a discussion include the following cases:

Reference: Estes v. Texas, 381 U.S. 532, 596-97 (focus on the majority opinion)

Reference: Chandler v. Florida, 449 U.S. 560 (1981)

Another possibility for a future offering includes a discussion about Professor Nesson's argument in which he asserts that the Internet is an open mode of free communication untarnished by intermediaries. Potential references for such a discussion include:

Reference: John Perry Barlow's Declaration of Independence

Reference that pushes back on this argument: Seth Kreimer. Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link

Constitutional underpinnings

We discussed an individual's right to a public trial.

The Sixth Amendment, granting the right to public criminal trials

Sections I and II of Tenenbaum's brief, arguing that Tenenbaum is entitled to the rights of a criminal defendant

A future class offering may include other Constitutional dimensions to the open courtroom issue. Some relevant cases include:

First Amendment: Richmond Newspapers, Inc. v. Virginia and Section II of Publicker Indus. v. Cohen, 733 F.2d 1059.

Due Process: Estes v. Texas, 381 U.S. 532, 596-97 (focus on the majority opinion)

Additional materials not referenced above:

• Tenenbaum's Motion to Admit Internet into the Courtroom
• Record Companies' Appeal to First Circuit Court
• Tenenbaum Opposition to appeal
• Amicus Brief by Courtroom View Network
• EFF's amicus brief
• "The Future of Cameras in the Courts: Florida Sunshine or Judge Judy," an article that sets forth the current state of the law in federal and state courts and the view of the federal judiciary regarding cameras in the courtroom

Some Lingering Questions For Discussion

• What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
• So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
• But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
• What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
• Did the presence of so many cameras around the OJ Simpson trial change the trial?
• Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
• Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media?

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

• Abandon the old laws and use self-help or create private sector enforcement
  • Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers (optional reading)
• Continue employing the existing imperfect statutory scheme
  • Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
• Let courts adapt the case law to technology
  • Example: Grokster, where the Supreme Court created a new variation on contributory liability
  • Example: The issue of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
  • Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
• Lobby for new laws in Congress
  • Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
• Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
  • One argument: article