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Suits Could Clarify File-Sharing Rules

A slew of cases expected to be filed by the music industry will test how copyright law applies to individuals online.

September 08, 2003|Joseph Menn | Times Staff Writer

On this there has been virtually no dispute: People who share copyrighted music online with strangers are breaking the law.

Several federal judges have held as much in cases against file-sharing networks such as those of Napster Inc., Inc. and Grokster Ltd. Even the most ardent defenders of peer-to-peer networks acknowledge that many users run roughshod over copyright rules.

But that conventional wisdom has never been tested in a case pitting copyright holders against individual file sharers.

That could change as early as this week. The recording industry is poised to sue potentially hundreds of people who offer free music online -- an unprecedented action expected to ripple across the music business and the community of 60 million people in the United States who use file-sharing networks.

At the very least, the lawsuits filed by the Recording Industry Assn. of America probably would provide a much clearer guide to just what's allowed as lawyers tease out previously unheard defenses and argue over the nuances of copyright law. At most, the suits could upend conventional wisdom about online piracy.

"Permissible aspects of file sharing exist, and we need a rule book," said Glenn Peterson, a Sacramento lawyer representing an alleged file sharer whose identity and address have been sought in a subpoena by the RIAA. "I have teenage kids. I want to be able to say, 'You can do A, B and C, and you can't do D, E and F.' "

In 2001, a judge shut down the pioneering Napster service. (The brand later was bought by Roxio Inc., which is working to launch a version of Napster by the end of the year that will pay the record labels and music publishers for their wares.) The record labels this year lost a case seeking the same fate for the Morpheus and Grokster services, which don't keep control of what their users do. Morpheus is distributed by StreamCast Networks Inc.

But because those rulings involved the file-sharing networks themselves, not individual users, "it isn't clear to me that the courts have really confronted directly the question of whether the things that some people do with peer-to-peer are or are not acceptable," said Peter Jaszi, a copyright specialist at American University's Washington College of Law.

Simply figuring out whom to name as an individual defendant takes a fair amount of sleuthing. The RIAA spent the summer using more than 1,000 subpoenas to force Internet service providers to reveal the names and addresses of customers suspected of distributing free music.

Music collections are easy to find online. Once the RIAA identifies a particularly large stash on a PC, it tracks down the machine's Internet protocol, or IP, address -- essentially its location on the Internet. Then it tries to get Internet access providers to match that IP address with a name.

But some caution that the name attached to an IP address isn't necessarily the right name; the user who downloaded music could be another person in the same household -- or even a hacker thousands of miles away.

An IP address is "not DNA, and it's not a fingerprint," said Joseph Singleton, a lawyer at the Beverly Hills firm Vorzimer, Masserman & Chapman who has been contacted by two people whose information was subpoenaed by the RIAA.

RIAA attorney Matt Oppenheim said that if evidence in a case shows someone else in a particular home was using the suspect computer improperly, a suit will be amended to add that person as a defendant. And he pointed out that the law doesn't exempt minors.

Legal experts expect many of those sued to settle quickly. Yet there also is a good chance that advocacy groups such as the Electronic Frontier Foundation will pick out certain individuals who tell a convincing story and subsidize their defense.

For those who fight the suits, a key goal will be to show that enough of the facts are in dispute that they deserve to have their cases go before juries. Given that half the Internet users in the United States have used a file-sharing network, the odds are high that a jury member would know someone who has downloaded music improperly. Those jurors could be sympathetic, and multiple trials could stretch the record industry's resources.

"If everyone fights it, they lose," Singleton said. "The federal courts will shut down."

Spontaneous mass support could conceivably erupt as well. One of the four college students sued by the RIAA this year for running a small peer-to-peer network asked for donations through a Web site and recouped all of his $12,000 settlement costs.

Juries might also consider something they are not supposed to under copyright law: intent. One anticipated defense is that any file sharing was accidental.

Most of the major peer-to-peer networks allow users to indicate whether they wish to open up files on their computers for others to copy. (The RIAA is going after people who they believe both offered and copied files because the law is slightly different in each instance.)

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