SPOTLIGHT PERSPECTIVES Excerpted from article:
Consumer side: "What I think they're going to do is start suing moms and dads and families across America. They could lose their house or lose their ability to send their kids to college. That is not the intent of copyright statutes, to bankrupt a middle-class family." Industry side: "We won't win any popularity contests. We don't really care what people think, except we want them to know that it (file-sharing) is illegal. It's unpopular, it's not pretty, but it's the right thing to do for all the people involved in the music industry." --- cut here --- Advice to avoid copyright litigation Experts sharing tips to help defend against file-sharing lawsuits Benny Evangelista San Francisco Chronicle July 28, 2003 As the recording industry tries in unprecedented fashion to enforce copyright laws against individual consumers, legal experts say people can take several steps to try to avoid costly litigation. For starters, legal experts advise file-sharers to stop sharing any unauthorized files. That action could, though not necessarily, eliminate the need for more costly legal steps if a file-sharer learns he or she has been caught in the Recording Industry Association of America's copyright infringement dragnet. It's possible the courts could one day rule file-sharing is legal or a consumer backlash could force Congress to change current copyright laws. Before that happens, however, the legal costs for an individual battling the powerful RIAA could be devastating. "What I think they're going to do is start suing moms and dads and families across America," said San Rafael attorney Ira Rothken. "They could lose their house or lose their ability to send their kids to college. That is not the intent of copyright statutes, to bankrupt a middle-class family." The RIAA, the Washington trade group that represents the world's biggest record labels, has filed more than 900 subpoenas since June 26 to gather information to file civil lawsuits against hundreds of users of file-sharing programs. Legal experts say this is the first time copyright law has been used to crack down on average consumers. Previously, copyright battles have typically pitted companies against other businesses, or against people who have intentionally tried to make money pirating copyright-protected material. Millions of people around the world use programs like Kazaa, Grokster, Limewire or eDonkey to swap free copies of entertainment files via the Internet, including songs and movies. Surveys have estimated about 60 million Americans have downloaded music into their computers. Proponents of file-sharing defend the practice, arguing a greedy music industry is ignoring its own customers and not taking advantage of a lucrative new revenue source. But the $14 billion U.S. recording industry labels file-sharing as theft and blames the practice for a 14 percent drop in CD sales in the past three years. File-sharing programs enable the transfer of audio or video files between users' computers. Each file sharer is supposed to offer a list of shared files available for upload. Those lists become part of a huge database for other file-share users to search and pick which file they want to download. The RIAA, unable to find an effective way to stop people from downloading or to shut down the companies that distribute file-sharing software, is now threatening legal action to halt the spread of files offered for uploading. On June 25, the RIAA announced plans to sue individual consumers who were offering a substantial number of copyright-protected songs. The RIAA said it would start filing the suits in eight to 10 weeks, sometime toward the end of August or early September when schools reopen after summer vacation. The suits would seek civil penalties ranging from $750 to $150,000 per song. The RIAA will not say what it considers substantial, but legal experts say the larger the number of files, the more likely the file-sharer will be sued. Proponents of file-sharing argue that the act of making a song available for someone else to download for free is legal under fair use provisions of copyright law because it's like sharing a CD with a family member or friend so they can enjoy listening to a new song. But copyright law expert Evan Cox, a partner at Covington & Burling in San Francisco, said the law gives copyright owners like the record labels the exclusive right to distribute their work, which makes it illegal to offer a song for distribution on a file-sharing network without authorization. "So the first thing you should do if you want to be off (the RIAA's) radar is to stop uploading," said Fred von Lohmann, senior intellectual property attorney for the Electronic Frontier Foundation. The San Francisco digital-rights advocacy group's Web site, www.eff.org, includes a new page that offers tips on how not to get sued by the RIAA for file sharing. Among those tips are ways to stop sharing potentially infringing files or to disable file sharing. Whether that defensive strategy is successful remains to be seen. The RIAA started gathering file-sharing evidence on June 26. Documents filed with the U. S. District Court in Washington show the RIAA is using snapshots of an individual's shared file folder as evidence to use in lawsuits. Even if the file-sharer has since removed or deleted those files, "that snapshot establishes enough evidence to establish infringement," Cox said. But Rothken, the San Rafael attorney, believes having shared files may not automatically be an infringement. "If you are somebody who accidentally shares a subdirectory on a private hard drive and someone wants to call that an offering because it appears on some file-sharing network by accident, the answer would be no," he said. RIAA spokeswoman Amy Weiss said her group might be "willing to talk settlement" if a file-sharer has erased the evidence, but that would be considered on a case-by-case basis. The RIAA is applying a unique provision of the 1998 Digital Millennium Copyright Act that gives copyright owners the power to issue a subpoena requiring Internet service providers to disclose the names of suspected copyright infringers. The RIAA needs only a court clerk's authorization to serve the subpoenas, which privacy advocates say bypasses many of the usual hurdles to obtaining a court order like requiring a judge's review of any evidence to support such an action. If a person learns the RIAA has subpoenaed the ISP to learn their identity, they should seek legal advice to protect their rights, said Glenn Peterson, a partner in the law firm McDonough Holland & Allen PC of Sacramento. The firm is one of several legal firms listed on a Web site -- www.subpoenadefense.org -- that has been set up as a resource for people served by RIAA subpoenas. The subpoenas themselves raise other new legal issues, such as whether they interfere with federal laws designed to protect the identities of minors on the Internet, Peterson said. Internet service providers are also struggling with how to deal with the subpoenas. "This is something that we're evaluating," said Larry Meyer, a spokesman for SBC Communications, which has received at least 50 RIAA subpoenas. The issue isn't completely novel. Numerous companies have gone to court over the past five years to force Internet service providers to finger anonymous Internet users for a variety of reasons. In most of the cases, companies said they needed the information to unmask users who libeled the companies on stock message boards, hurting their stock price. In a different twist, Raytheon, the defense contractor, filed suit against two dozen anonymous employees in 1999, accusing them of posting confidential information on a Yahoo message board. After Raythoen tracked down the users -- with the court's help -- four employees eventually quit or were fired. It then dropped the suit. Critics say judges normally rubber-stamp such subpoenas, regardless of how thin the evidence. But two years ago, Contra Costa County Superior Court Commissioner Judith Sanders ruled that Ampex Corp. of Redwood City first had to demonstrate that its executives were libeled before it would even consider ordering Internet service providers to identify a poster. And in the wake of such suits, many Internet service providers (including SBC Communications) agreed to first notify users when they received a subpoena, giving them a week or so to hire an attorney to try to quash the order. Verizon Communications, which has been fighting to overturn the law, said it has told users they have seven days to hire an attorney and decide whether to challenge the subpoena. If Verizon doesn't hear from the users within seven days, the company said, it will turn over the user's personal information to the recording industry. But if an attorney contacts Verizon by the seven-day deadline, Maureen Flanagan said, "we don't turn over the names to the RIAA." Verizon said it has no choice in the matter. In June, an appellate court in the District of Columbia overturned its request to put the subpoenas on hold pending its challenge of the law. "We remain concerned about the potential for abuse of this subpoena process and we remain concerned about our customers' privacy, security and due process rights," said Verizon spokesman Jon Davies. Music industry critics say the RIAA's latest tactic will ignite a consumer revolt. RIAA spokeswoman Weiss said that while her group expects a consumer backlash, it will press ahead because the record industry believes it has no other choice. "We won't win any popularity contests. We don't really care what people think, except we want them to know that it (file-sharing) is illegal," Weiss said. "It's unpopular, it's not pretty, but it's the right thing to do for all the people involved in the music industry." Chronicle staff writer Todd Wallack contributed to this report. / E-mail Benny Evangelista at [EMAIL PROTECTED]
