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.

Questions to consider in preparation for our discussion

• Questions about RIAA's use of the Copyright Act
  • Part of the counterclaim argument is that the statutory damages should be parallel to punitive damages ala BMW v. Gore. Is this argument compelling? (should we make this case available?)
  • The bottom line is that there is a statute prohibiting online filesharing that awards damages against an infringer. What is Joel’s best argument in his defense?
  • We’ve been toying with a “not unfair use” defense that would switch the burden of proof for non-commercial users. Would Copyright’s Fair Use doctrine be tolerant of such a switch?

• Questions about the Internet in the courtroom
  • 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 -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
  • Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
  • How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

Subject matter of the class

(note: Required readings are in italic. There are only five required readings.)

Part I. Background (15 minutes)

Topic Introduction: Conflict between old laws and new media

• Required Reading 1: Sony "Betamax" case (skim)

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

• Required Reading 2: Grokster (Supreme Court ruling) (skim)
• Optional: Grokster (Ninth Circuit ruling).
• Optional: Overview of Music Industry Business Model
• Optional: File sharing: It’s history, growth, and impact on the music industry.

Part II. Case study: RIAA vs. Tenenbaum

• Optional: Articles about Professor Nesson's case can be found at Computer World, here, and here

A. RIAA's use of the Copyright Act (30 mins)

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

• Required Reading 3: 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)

• Required Reading 4: 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).

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

• Reading: Tenenbaum brief (above)

• Optional: EFF article on RIAA's litigation strategy

B. New Technology vs. Courtroom Norms (30 mins)

Internet and recording technology in the courtroom

• Required Reading 5: Judge Gertner's Decision re: Motion to Admit Internet
• Optional: Tenenbaum's Motion to Admit Internet into the Courtroom
• Optional: Record Companies' Appeal to First Circuit Court

Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? (15 mins)

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

• Example: RIAA's new enforcement strategy (optional reading)

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
• Example: Sony "Betamax" case

Lobby for new laws in Congress

• Digital Millennium Copyright Act

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

• Optional: Lessig article

Guest

Professor Charles Nesson

Tools / innovations for the presentation

• Question Tool
  • To do before: post/vote for questions/concerns about the readings.
  • During class: continue live conversation online.

• Twitter: As part of the RIAA case, one of the technologies we have been experimenting with is twitter. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback].

• • To do before: Create your own account, if you wish. (Be sure to "friend" both joelfightsback and debbierosenbaum!)
  • During class: Opportunity to micro-blog
  • Note from Debbie: I've been twittering for a few weeks and love it. It allows me not only to post my random thoughts of the moment -- often academic or worldly in nature -- but also to essentially keep a live journal. I encourage you all to try it for the semester. At least during classes; at the end, you'll be nostalgic -- promise.
  • What we plan to do with this: Be sure to friend "debbie rosenbaum." Once class is over, we will compile the tweets and distribute. We're hoping that the thoughts as expressed through tweets from two dozen HLS students will provide an interesting stream of consciousness ... and maybe even a coherent policy analysis.