Privacy Right Upheld

Published June 1, 2008

A federal district court in Massachusetts has struck down a set of subpoenas filed by the Recording Industry Association of America (RIAA) against Boston University.

The subpoenas were filed in order to uncover the identities of several students accused of violating federal copyright laws by illegally downloading music from the Internet.

The basis of the court’s March 31 decision, written by Judge Nancy Gertner, was the assessment that “the [students] are entitled to some First Amendment protection of their anonymity.”

Ambiguous Laws

Gertner also dismissed RIAA’s argument that “making available copyrighted material [for download] is sufficient to constitute an act of actual distribution.”

On the same day the decision was handed down, however, the U.S. District Court for the Southern District of New York issued a majority opinion that held making digital music available for download is indeed equivalent to distribution, siding with RIAA (Elektra v. Barker).

The difference of opinion between these two courts represents how muddy the proverbial waters are around this issue.

The traditional copyright model used by RIAA involves two separate copyrights. One is for the song itself, which is owned either by a publisher or songwriter, and another is for the physical copy of the recording, such as a CD, tape, or vinyl record. The record label owns the latter copyrights.

In the world of digital media, however, physical copies don’t exist, and analysts say policy has to be updated to reflect the changing technology.

According to Fred von Lohmann of the Electronic Frontier Foundation (EFF), however, “Legislation isn’t going to end the RIAA lawsuits, since Congress won’t pass copyright legislation addressing the suits over the RIAA’s objection. So only a new business model will end the lawsuits.”

ISP Music Licensing

For von Lohmann and EFF, that business model involves Internet service provider (ISP) music licensing. In this scenario, RIAA would charge ISPs a fee for offering downloaders access to free online music.

The ISPs would then have the option of charging their customers a little extra each month to cover the expense. Some have called this the “all-you-can-download” fee, and it would appear on the consumer’s monthly statement.

This is exactly what the Warner Music Group, headed by Jim Griffin, is trying to put into practice.

In a deal still being formulated, Warner would request ISPs charge users an extra five dollars a month in exchange for unlimited downloading rights. This would protect both ISPs and college downloaders from protracted, expensive lawsuits.

“Universities might choose to buy campus-wide licenses in bulk in order to stop the RIAA’s college litigation campaign,” writes von Lohmann.

Some Support

Ann Chaitovitz, executive director of the Future of Music Coalition, supports such a model.

“The punitive approach of the RIAA does nothing to move us closer to a digital music marketplace,” Chaitovitz said. “It’s important for fans to know that stealing music is wrong. On the other hand, technologists, venture capitalists, and labels must make artist compensation a top priority in any of their new business models.”

Dissenting Voices

Some in the music industry interpret the proposed ISP music licensing fee as a tax, and editor Michael Arrington contends it is nothing but an old-fashioned protection racket, with the threat of an RIAA lawsuit unless payment is made.

Griffin’s plan “will create a revenue pool of nearly $20 billion,” said Arrington. “That’s double the size of the recorded music industry” today.

Arrington argues this model will be a death knell for upcoming artists. “New entrants would just mean more competition for a static amount of money,” he stated. “Collusion by existing players will run rampant.”

Other Options

Public Knowledge, a public interest group in Washington, DC that deals with digital rights, stated in a 2004 news release, “other avenues, which require neither new legislation nor technology mandates, are open and largely underutilized.” The group categorized Apple’s iTunes Music Store as “a step in the right direction.”

Clearly RIAA is beginning to agree with the Public Knowledge view that “the low cost, ubiquity, and speed of the Internet [should be seen] as an opportunity, not a threat,” though the contradictory outcomes of recent court cases dealing with copyright issues show a resolution remains elusive.

Public Knowledge staff attorney Rashmi Ragnath summed up the situation by saying, “While copyright owners have a right to defend their rights, RIAA’s litigation tactics are a cause for concern.”

Justin Kaiser ([email protected]) writes from the San Francisco area.