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back to [[syllabus]]
back to [[syllabus]]


'''Precis'''
'''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.  
The purpose of this class is to explore the tension between old infrastructure and new media.  The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom.  Many companies, such as the record labels in the music industry, have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes.  They contend that laws must be uniformly and systematically applied despite changes in culture and society.  Critics argue 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.
One of the clearest examples of this tension is the RIAA and its struggles to adapt to Internet distribution of music.  Using a timely case study from our own backyard at Harvard Law School, the purposes of this class is to better understand the tension, evaluate strategies that have been used to address the challenges, and consider what the right approach should be.


== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]


== Please read this before class ==
=== Part I. Background ===
=====Topic Introduction: Conflict between old laws and new media=====
* ''Required Reading'': [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case (skim)]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* Optional: [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* Optional: [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]


Hi everyone,
=== Part II. Case study: RIAA vs. Tenenbaum ===
We are looking forward to class on Monday.  We have been getting some feedback on our session and we’ve come up with a couple ideas that we think will help us all get more out of the class. These ideas require everyone to come to class on Monday prepared to assume certain roles.  We don’t think this will be too burdensome and expect this will add to the fun.  Please take a few minutes to read this section over.  Thanks.  
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003.  He offered to settle the case for $500, but music companies rejected that, demanding $12,000.  The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional.


=== Substance of the class: ===
In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. Rodriguez was one of Nesson’s law students, but her background in public relations and communications made her the de facto head of marketing for their team.  The team believed that there was extensive public support for their case and tasked Rodriguez with identifying, engaging, and amplifying the public’s opposition to the RIAA's litigation strategy against file-sharing and the public’s support for file-sharing.
To the extent that you haven’t already spent much time getting geared up for Monday’s class, we would like you to focus your pre-class thoughts and efforts on [http://cyber.law.harvard.edu/iif/Old_Laws/New_Media#Part_II._Case_study:_RIAA_vs._Tenenbaum “Part II”] of our wiki site, specifically focusing on these two issues:  [http://cyber.law.harvard.edu/iif/Old_Laws/New_Media#RIAA.27s_use_of_the_Copyright_Act.27s_statutory_damages_framework_to_Internet_users 1)]  the propriety of the Copyright Act’s statutory damages as applied to Internet file sharers, and [http://cyber.law.harvard.edu/iif/Old_Laws/New_Media#B._New_Technology_vs._Courtroom_Norms_.2830_mins.29 2)] the “Internet in the courtroom.” The first half of the class will focus on the former, and the second half of the class will focus on the latter.


A. Propriety of the Copyright Act’s statutory damages
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])


Our discussion here will center around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson).  We'd like the debate to focus on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw. The rest of us will contribute to the discussion primarily through technology, as discussed below.
More information at [http://www.joelfightsback.com Joel Fights Back]


B. “Internet in the courtroom”
==== A. RIAA's use of the Copyright Act (30 mins) ====
 
Our discussion here will center around a debate amongst the students.  We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed.  Again, we'd like to focus on policy issues rather than specific rules.  Here are the group assignments:
  * Argue that webcasting trial proceedings should be allowed:
AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper;
DAL; danray; Dharmishta; Dulles; Elanaberkowitz;
EST; g
  * Argue that webcasting trial proceedings should not be allowed:
Gwen; Hoellra; jf; Jfishman; Jgruensp;
lbaker; Mchua; Megerman; Miriam; Mwansley;
Seth Woodworth; AMehra
 
=== Technology roles:  ===
There was some interest in trying “no laptops” this week. Rather than going that far, we think it would be interesting to limit the use of laptops by adding some organization over how you can/should use them. 
 
A. We are splitting the class into 3 groups, and each group will have a different technology role that it will focus on.  One group will focus on twitter, one group on generating questions for the question tool, and one group on voting for questions.  These groups, and your assignments, are listed below.
 
B. Honor system: please focus on twitter and the question tool as opposed to surfing other websites.  Our goal is to make a concerted effort to see how effective twitter can be for having a substantive back-channel conversation, and how effective the question tool can be for steering the real world conversation.
 
C. Your group assignments (we just chopped the "user" list up alphabetically) --
 
'''Twitter group:''' During class, please focus your online efforts on making substantive tweets on #iif.  If you want to post a question on the question tool or vote on the question tool, you can of course do so.  But we would like you to view “twitter” as your main responsibility.  We are hoping that you will be the core group that will keep the twittering going. 
 
    *  User:AndrewKlaber
    * User:Ayelet
    * User:Bepa
    * User: CKennedy
    * User:Cooper
    * User:DAL
    * User:danray
 
'''Question tool questioner group:'''  During class, please focus your online efforts on posting substantive questions to the question tool.  The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time.  If you want to tweet or vote on questions, you can of course do that.  But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on.  And it would even be great if you want to post questions in advance of class.  [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].
 
    * User:Dharmishta
    * User:dulles
    * User:Elanaberkowitz
    * User:EST
    * User:g
    * User:Gwen
    * User:Hoellra


'''Question tool voting group:'''  During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating.  If you want to tweet or pose questions yourself, you can of course do that.  But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest.  In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question.  [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].
Some questions you might consider in preparation for the session


    * User:jf
    * User: Jfishman
    * User:Jgruensp
    * User:JZ
    * User:lbaker
    * User:Mchua
    * User:Megerman
    * User:Miriam
    * User:Mwansley
    * User:Seth Woodworth
    * User:AMehra
=== Some questions you might consider in preparation for the session ===
* Questions about RIAA's use of the Copyright Act
** 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?
** 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?
** 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?
** 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?


* Questions about the Internet in the courtroom
===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
** 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?
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
** 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?
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
** 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 ==
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.
(''note: Required readings are in italic.  There are only five required readings.'')


=== Part I. Background (15 minutes) ===
[[Image:http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum]][http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum Video of arguments available here]
=====Topic Introduction: Conflict between old laws and new media=====
* ''Required Reading 1'': [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case (skim)]


=====Overview of attempts to apply existing copyright law to online file-sharing=====
===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* ''Required Reading 2'': [http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf Grokster (Supreme Court ruling) (skim)]
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]
* Optional: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/20040819_mgm_v_grokster_decision.pdf Grokster (Ninth Circuit ruling)].
* Optional: [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* Optional: [http://en.wikipedia.org/wiki/File_sharing 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 [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ 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'': [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
==== B. New Technology vs. Courtroom Norms (30 mins) ====
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])


* ''Required Reading 4'': [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]


* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:
* Argue that webcasting trial proceedings should be allowed:  
AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper;
DAL; danray; Dharmishta; Dulles; Elanaberkowitz;
EST; g
* Argue that webcasting trial proceedings should not be allowed:  
Gwen; Hoellra; jf; Jfishman; Jgruensp;
lbaker; Mchua; Megerman; Miriam; Mwansley;
Seth Woodworth; AMehra


===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
Some questions you might consider in preparation for the session


* Reading: Tenenbaum brief (above)
** 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)?


* Optional: [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]


==== B. New Technology vs. Courtroom Norms (30 mins) ====
=====Internet and recording technology in the courtroom=====
=====Internet and recording technology in the courtroom=====
* ''Required Reading 5: [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* ''Required Reading 5: [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
Line 136: Line 83:
* Optional: [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by CVN]
* Optional: [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by CVN]
* Optional: [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]
* Optional: [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]


=== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? (15 mins) ===
=== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? (15 mins) ===
Line 156: Line 108:
* Optional: [http://www.newsweek.com/id/176809/output/print Lessig article]
* Optional: [http://www.newsweek.com/id/176809/output/print Lessig article]


== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]


== Tools / innovations for the presentation ==
== Tools / innovations for the presentation ==


*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** To do before: post/vote for questions/concerns about the readings.
** '''Question tool questioner group:'''  During class, please focus your online efforts on posting substantive questions to the question tool.  The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time.  If you want to tweet or vote on questions, you can of course do that.  But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class.  [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].
** During class: continue live conversation online.


*'''[http://twitter.com Twitter]''': As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter].  We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback.
    * User:Dharmishta
    * User:dulles
    * User:Elanaberkowitz
    * User:EST
    * User:g
    * User:Gwen
    * User:Hoellra
 
** '''Question tool voting group:'''  During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating.  If you want to tweet or pose questions yourself, you can of course do that.  But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest.  In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question.  [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].
 
    * User:jf
    * User: Jfishman
    * User:Jgruensp
    * User:JZ
    * User:lbaker
    * User:Mchua
    * User:Megerman
    * User:Miriam
    * User:Mwansley
    * User:Seth Woodworth
    * User:AMehra
 
*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter].  We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif.  If you want to post a question on the question tool or vote on the question tool, you can of course do so.  But we would like you to view "twitter" as your main responsibility.  We are hoping that you will be the core group that will keep the twittering going. 
 
    * User:AndrewKlaber
    * User:Ayelet
    * User:Bepa
    * User: CKennedy
    * User:Cooper
    * User:DAL
    * User:danray


*'''[http://joelfightsback.com JoelFightsBack Website]''': We put up this website to help our supporters follow the case and interact with us as student lawyers. Spend some time on the site. What could be better? What would you like to see?
*'''[http://joelfightsback.com JoelFightsBack Website]''': We put up this website to help our supporters follow the case and interact with us as student lawyers. Spend some time on the site. What could be better? What would you like to see?
* Some of the conversation that transpired:
*****************************

Revision as of 17:54, 17 April 2009

Topic Owners: Shubham, Debbie Rosenbaum, Matt Sanchez

back to syllabus

Precis The purpose of this class is to explore the tension between old infrastructure and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many companies, such as the record labels in the music industry, have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes. They contend that laws must be uniformly and systematically applied despite changes in culture and society. Critics argue 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.

One of the clearest examples of this tension is the RIAA and its struggles to adapt to Internet distribution of music. Using a timely case study from our own backyard at Harvard Law School, the purposes of this class is to better understand the tension, evaluate strategies that have been used to address the challenges, and consider what the right approach should be.

Guest

Professor Charles Nesson

Part I. Background

Topic Introduction: Conflict between old laws and new media
Overview of attempts to apply existing copyright law to online file-sharing

Part II. Case study: RIAA vs. Tenenbaum

Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional.

In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. Rodriguez was one of Nesson’s law students, but her background in public relations and communications made her the de facto head of marketing for their team. The team believed that there was extensive public support for their case and tasked Rodriguez with identifying, engaging, and amplifying the public’s opposition to the RIAA's litigation strategy against file-sharing and the public’s support for file-sharing.

  • 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

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

Some questions you might consider in preparation for the session

    • 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.

File:Http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaumVideo of arguments available here

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




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

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

  • Argue that webcasting trial proceedings should be allowed:

AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g

  • Argue that webcasting trial proceedings should not be allowed:

Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider in preparation for the session

    • 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)?


Internet and recording technology in the courtroom




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
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)


Tools / innovations for the presentation

  • Question Tool
    • Question tool questioner group: During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. Here is the question tool.
   * User:Dharmishta
   * User:dulles
   * User:Elanaberkowitz
   * User:EST
   * User:g
   * User:Gwen
   * User:Hoellra
    • Question tool voting group: During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. Here is the question tool.
   * User:jf
   * User: Jfishman
   * User:Jgruensp
   * User:JZ
   * User:lbaker
   * User:Mchua
   * User:Megerman
   * User:Miriam
   * User:Mwansley
   * User:Seth Woodworth
   * User:AMehra
  • Twitter group: 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]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.
   * User:AndrewKlaber
   * User:Ayelet
   * User:Bepa
   * User: CKennedy
   * User:Cooper
   * User:DAL
   * User:danray
  • JoelFightsBack Website: We put up this website to help our supporters follow the case and interact with us as student lawyers. Spend some time on the site. What could be better? What would you like to see?
  • Some of the conversation that transpired:
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