Old Laws/New Media

Topic Owners: Shubham Mukherjee, Debbie Rosenbaum, Matt Sanchez

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Precis This topic concerns the tension between old laws and new media. The Internet has threatened the way many "traditional" companies do business. Many of these companies have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes to cyberspace. Critics assert that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

Perhaps the clearest -- and most high profile -- example of this phenomenon is the RIAA and its struggles to adapt to Internet distribution of music. This class will use the RIAA and its efforts to use old pre-Internet laws to curb file sharing as a case study for exploring the tension between old laws and new media. The purposes of the class include understanding the tension, understanding and evaluating strategies that have been used to address the tension to date, and considering what the right approach should be.

Subject matter of the class

Part I. Background (~30 minutes)

The music industry's pre-Internet business model

• Wikipedia reference
• Debbie, you listed “Sony” as a reading. Not sure what you were referring to.

File sharing: It’s history, growth, and impact on the music industry.

• Wikipedia reference

RIAA's use of pre-Internet copyright law against file sharing services

• Readings:
  • Grokster (Supreme Court ruling)
  • Grokster (Ninth Circuit ruling). (Note: I included the Ninth Circuit opinion because I though that it really shows how the decentralized nature of the file sharing technology, made possible by the Internet’s architecture, rendered pre-Internet grounds for secondary liability insufficient to find Grokster liable. To make the amount of reading less copious, maybe we can put up an excerpted version of the opinion? Or should we just discuss this during the class?)

RIAA's use of pre-Internet copyright laws against individuals

• The imperfect fit of a pre-Internet statutory scheme being applied in an Internet setting. In particular, focus on the Copyright Act's statutory damage provisions (see here and here), how they operated pre-Internet, and how they have been applied by rights holders for Internet infringement.
• Pre-Internet law's ability to do justice when so many Internet controversies pit individuals against large corporations.
  • Can a class action-like approach be used?

• Readings:
  • EFF article (this is a biased take, did not have much success finding a thorough unbiased account)
  • Motion filed in the case of Sony BMG v Tenenbaum
  • Articles about Professor Nesson's case can be found at Computer World, here, and here

Brief discussion on other legal doctrines that show the tension between old laws and new media, for context.

• Matt fill in?

Part II. Strategies that have been employed to deal with the tension to date (60 mins)

Continue employing the existing imperfect statutory scheme

• Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.

Let courts adapt the case law to technology

• Example: Grokster, where the Supreme Court created a new category of liability
• Example: The issue of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
• Optional reading: Sony "Betamax" case

Lobby for new laws in Congress

• DMCA
• Reading: (will prepare an excerpted version as a reading)

Abandon the old laws and use self-help or create private sector enforcement

• Reading: RIAA's new enforcement strategy

Part III. Discussion: How should we best deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments? (30 mins)

Make Internet regulation part of the administrative state (i.e., empower the FCC)

• Reading: Lessig article

Guest

Professor Charles Nesson

Tools / innovations for the presentation

OLD CONTENT FROM HERE DOWN

The Internet and other digital media raise a number of questions about communication law and policy: Should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? How have the courts, Congress, and other lawmaking bodies responded to new media technologies? What regulatory regime is emerging, if any, to govern new media? We will use the Joel Tenenbaum copyright infringement lawsuit as a case study, in conjunction with Professor Charles Nesson, to raise these questions. Articles about Joel's case can be found at Computer World, here, and here. In addition to copyright law, we may also discuss the controversial issues that have come up in speech-related law (e.g., defamation and anonymous speech rights) and privacy laws.

General relationship between technological change and the law

Looking beyond individual cases, legal doctrines, and policies, the class will explore general relationships between technological change and the law. What drives changes in laws that govern media technologies? How do old media industries use their influence to shape laws that affect new media? What characteristics of the legal system especially the dynamics of litigation and congressional lawmaking affect society's response to new media? What's the role of citizen activists in shaping laws? How does social science research (e.g., studies about the effects of new media) bear on legal decisions?

During this second part of class, we'll be guided by the following series of questions:

• How has new media affected traditional communications and media industries and challenged traditional law? Consider Sony
• Given what we've learned from the RIAA situation with Joel Tenenbaum, should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? Consider Tenenbaum filings. Consider controversial FCC proposal that would impose common carrier-like responsibilities on the recipient of wireless spectrum and opposition asserting that these responsibilities would unduly interfere with the free market.
• What regulatory regime should emerge to govern new media? i.e. Do we apply old laws to new technologies, or do we create new regulations? Consider MGM, DMCA, and CDA. Consider Lessig's article stating that regulatory regimes should be disfavored: "minimal intervention to maximize innovation." Consider RIAA's new strategy as an example in which the private sector is attempting to create their own "regulatory" regime with minimal government intervention.
• How can we create sound policy that aligns with both traditional legal and moral aspirations while according with today's technological realities? Consider Reno v. ACLU.
• Other questions to consider:
  • What IS new media? Consider Lessig article.
  • How do we deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments?

Guests

• Google Telecom Lawyer Rick Whitt (invitation extended)
• Google Antitrust Lawyer Dana Wagner (invitation extended)
• Berkman Center's David Ardia, who runs the Citizen Media Law Project
• Cary Sherman of RIAA
• Professor Charles Nesson (invitation extended)
• Public Citizen Litigation Group Attorney Paul Alan Levy
• Electronic Frontier Foundation Attorney Fred Von Lohmann

Readings for Class

• The links in the writeup above.

Copyright-related readings

• Various court documents and media coverage from the Sony v. Tenenbaum case
• Discussion of RIAA's new tactics to curb file sharing
• Sony Corporation v. Universal City Studios, 464 U.S. 417(1984) (Supreme Court decision that manufacturers of video recorders can not be held liable when they are used to violate copyright).
• Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005) (Internet services that facilitate file sharing of copyrighted materials can be held liable for infringement)
• Digital Millennium Copyright Act (1998 law that extended U.S. copyright principles to digital materials)
• Some Like It Hot by Lessig

Speech-related readings

• Materials related to online defamation and anonymity law (AutoAdmit, Roommates.com, etc.)
• CDA, especially Section 230.
• Reno v. ACLU, 521 U.S. 844 (1997) (Supreme Court decision striking down parts of Communications Decency Act and also the Court's leading statement on the constitutional status of the Internet)

Other readings

Possible Tools

• Berkman Question Tool or Google Moderator.
• YouTube
• Webcast. Distribute the Question Tool or Google Moderator link so remote listeners can help steer the discussion.

Music Downloading Agents to Preview

• Rhapsody
• Limewire
• Kazaa