Nov 252007
 
Authors: Kathleen Harward

If you’re downloading or sharing out music files you didn’t author or aren’t licensed to distribute, or that are not in the free “public domain,” you are a copyright infringer under the law.

If you’re not sure, you’re probably infringing. If you’ve loaded peer-to-peer software without changing default settings that allow uploading, you might even be infringing without realizing it.

American law has long protected intellectual property rights so that artists and inventors can make a livelihood from their creations.

It might feel like “selective prosecution” if you get targeted and all your friends don’t, but that is not a legal defense.

The Recording Industry Association of America is a trade group that represents many record labels. Its goal is to shut down file sharing that deprives the record labels of music sales. The RIAA’s strategy has been to sue or threaten to sue thousands in order to deter others.

The RIAA’s strategy doesn’t seem to be working.

Since 2003 when the RIAA began its aggressive legal campaign, illegal file sharing has increased, not decreased.

The RIAA, however, claims success by pointing to a doubling of digital album purchases between 2005 and 2006, a three-fold increase in the number of households using a paid digital download service, and a 36 percent increase in people who now realize that free downloading is illegal.

There are an estimated 12 million peer-to-peer users online at any given moment. On average, the RIAA has filed about 7,000 cases per year. That means your chances of getting sued are about one in 1,700 for all users per year.

Of course, statistics are little comfort if you end up being that one.

In February, the RIAA launched an offensive against colleges.

The RIAA’s game is to file lawsuits against John and Jane Does and get the court to authorize a subpoena on the college to get the name and address of the student who supposedly infringed using a certain IP address.

CSU has not received such subpoenas yet, but if you live in university housing and receive your internet service through the university server, you may be at higher risk due to the RIAA’s latest offensive.

Early settlement letters are pre-lawsuit letters the RIAA sends to colleges naming your IP address and alleging that copyright infringement has occurred.

The university is expected to associate the IP address to you and send you the RIAA’s settlement demand that’s usually between $3,000 and $4,000. You do not have to pay this amount.

However, if you don’t make a settlement, you run the risk of the RIAA filing a Doe lawsuit and discovering your identity by subpoenaing the university. You could lose far more than $3,000 to $4,000.

CSU’s attorneys have said they will give you notice of any subpoena they receive concerning your IP address and give you 10 days to seek counsel and file a motion to quash the subpoena before CSU will comply with the court ordered disclosure.

Student Legal Services will help you analyze your options and plan your next steps. If you choose to settle, SLS can facilitate a settlement in which your identity is not disclosed to the RIAA.

Court rulings across the country are varied, so it’s impossible to predict how successful a motion to quash will be.

The Oregon attorney general recently filed a motion to quash on behalf of the University of Oregon on the grounds “that it is impossible to identify the alleged infringers from the information the RIAA has presented.”

Think about a double occupancy room in which it isn’t clear whether the alleged infringer was one roommate or the other, or even a guest.

The same uncertainty applies to any computer on campus, even when accessed by password, because it isn’t clear whether someone using another’s password may have committed the alleged infringement.

The motion to quash argues that in order to identify alleged infringers with any accuracy, the university would be forced to conduct an investigation, and the law does not obligate the university to help the RIAA in this manner.

While this motion looks to have promise, there are IT security experts who believe there is little technical basis for the motion, as music files often have additional information (metadata) in them that allows the download history to be traced and tracked.

Some students around the country are filing motions to quash without lawyers. In seven recent cases, two student motions were denied, one was granted, and the rest are pending. Interestingly, in one of the pending cases, seven students banded together and filed a joint motion to quash. Pooling resources is certainly one helpful strategy.

If the motion to quash is granted, it still may not be the end of the story. The court can require the RIAA to provide more information, so they may get another shot at the subpoena.

If things move along and you choose not to settle, things could get very costly.

The Digital Millennium Copyright Act imposes damages of $200 (the unaware infringer) to $150,000 (the willful infringer) person. Plus, attorney’s fees and federal court litigation could cost you upwards of $300 per hour.

If you have reason to know that you are about to be sued, there is a federal court rule that prohibits you from destroying evidence. If you are sued and it is shown that you destroyed evidence in anticipation of the lawsuit, the judge can sanction you and limit your ability to defend yourself.

However, if you haven’t received any pre-lawsuit settlement letter and you wish to stop downloading, you probably can’t be held to the rule, and wiping your hard drive of any past illegal activity would make sense.

Illegal file sharing is risky business. Your chances of getting caught are slim by the numbers, but if you do get caught, the penalties are staggering and your life and pocketbook will be consumed trying to defend a lawsuit.

You might think you should “do your part” to apply pressure on the industry to change, but you should first decide if the risk of being a revolutionary is worth it.

Kathleen Harward is the director of Student Legal Services. SLS’ column runs biweekly Mondays in the Collegian. Letters and feedback can be sent to letters@collegian.com.

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