Old Laws/New Media
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
Part I. Background
Topic Introduction: Conflict between old laws and new media
Overview of attempts to apply existing copyright law to online file-sharing
- RIAA vs. The People: Five Years later
- RIAA's view on piracy & The RIAA: What we do
- Overview of Music Industry Business Model
- File sharing: It’s history, growth, and impact on the music industry.
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
More information at Joel Fights Back Reference: How RIAA Litigation suits work Reference: Ray Beckerman's Blog
A. RIAA's use of the Copyright Act
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
- 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).
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.
VIDEO: Arguments between Professors Nesson and Fisher
RIAA's use of Copyright Act to try and shape norms of Internet usage
B. 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 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
VIDEO: A Brief History of Media in the Courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts VIDEO: Role of TV in the courtroom Readings:
- Judge Gertner's Decision re: Motion to Admit Internet
- Tenenbaum's Motion to Admit Internet into the Courtroom
- Record Companies' Appeal to First Circuit Court
- Tenenbaum Opposition to appeal
- Amicus Brief by Courtroom View Network
- EFF's amicus brief
- Oral Arguments from First Circuit Court of Appeals
- First Circuit Ruling to Block Webcast of Tenenbaum's case
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
- 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
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:
Q: If the RIAA can't pursue these kinds of cases to maintain their rights, what should they do about piracy?
- Anonymous: What other options are available to the RIAA? Are any other gropups affected by piracy that could prosecute/take action in the RIAA's stead?
- Anonymous: the video games industry? Hollywood?
- Anonymous: The brief seems to indicate that any private group chasing infringers would constitute an unacceptable prosecution...or am i mistaken?
- Anonymous: What is the pr0n industry doing?
- nonymous: Apparently (someone else in this class was telling me this last week), they (pr0n) are moving to a fee-for-webcam service instead of DVDs.
- Anonymous: so couldn't we ask the music industry to do the same if it's working for the pr0n peeps?
- Anonymous: according to the EFF some segments of the pron industry rely on embarrassment and extortion: http://www.eff.org/wp/riaa-v-people-years-later
- Anonymous: why has eveyone become anonymous all of a sudden?
- Anonymous: Different use model... Yes, that too, but also: pr0n is not self-expressive within society in the same way, and there's not the same desire for permanent ownership.
Q: Did the presence of so many cameras around the OJ Simpson trial (were they in them? can't remember) change the trial? I think maybe yes and not in a good way...
Q: 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? It seems a stretch to even call this constructive notice.
- JZ: Might be worth parsing the 1996 order textually: Internet streaming is neither television nor radio, and its special characteristics, including the ability to contextualize what's going on, mean a new decision is called for.
Q: Gwen: 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?
- Mark: Personally, I think this is brilliant. Use the issue to force the opponents into an untenable position. As the RIAA fights the publicity, use that stance as a collateral attack on the real issues. Backlash + Ridicule is the basis of solid organizing.
- Anonymous: Yes. Yes. And also to bolster the notice given to digital natives about what their legal landscape looks like.
Q: 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?
- Anonymous: As a non-law person in the room, many of us walk around with the assumption that the courtroom is open unless there's a specific and compelling reason not. What are those reasons?
Q: JZ: 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.
- Anonymous: But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
- Anonymous: presumably they're seeking the amt they think Ds will settle at, to avoid litigation costs and even more bad publicity