Old Laws/New Media

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Topic Owners: Shubham Mukherjee, Debbie Rosenbaum, Matt Sanchez

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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. See, also How Harvard Threw Down the Gauntlet to the RIAA

RIAA's use of the Copyright Act

Some questions you might 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.

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

New Technology vs. Courtroom Norms

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:

    • 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


Readings:

Follow up:


Some Lingering Questions
  • 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 isn't 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?

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?
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