Old Laws/New Media

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Topic Owners: Shubham, 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.


Please read this before class

Hi everyone, 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.

Substance of the class:

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 “Part II” of our wiki site, specifically focusing on these two issues: 1) the propriety of the Copyright Act’s statutory damages as applied to Internet file sharers, and 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

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.

B. “Internet in the courtroom”

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. 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

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

Part II. Case study: RIAA vs. Tenenbaum

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)
  • 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)

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

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)

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]. For this class, tag your Tweets with "#iif" and"#joelfightsback.
  • 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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