The battle between colleges and the music industry over illegal file sharing by students is heating up yet again: Not content to lobby Congress for federal rules discouraging such activity, the Recording Industry Association of America (RIAA) has turned its sights on state legislatures.
In its latest effort to quash online piracy, the RIAA has developed a coordinated campaign to get states to pass legislation that would require state colleges and universities to take measures cracking down on illegal file sharing.
In May, Tennessee’s governor signed legislation that requires higher-education institutions in the state to create and adhere to policies prohibiting students and staff from infringing on copyrights. The new law also requires those schools to make real efforts to prevent copyright infringement on their networks, based on how many copyright-infringement notices they receive.
Similar legislation in the Illinois state legislature, still pending as of press time, would require schools to make "reasonable efforts to install and implement a technology-based deterrent system to attempt to prevent the infringement of copyrighted works over the institution’s computer and network resources" if they have received 10 or more valid copyright-infringement notices in the last year.
In addition, California state officials have met with RIAA representatives and might be on the way to introducing their own bill.
The RIAA has done something similar on the federal level, lobbying to get language into the Higher Education Act reauthorization bill that would force colleges to adopt technology-based measures to restrict online piracy on their networks. It’s clear from the group’s latest efforts, however, that the RIAA isn’t waiting for federal lawmakers to act.
The nonprofit higher-education technology organization Educause objects to such legislation, because it would force colleges to "take technological steps to block allegedly infringing material…when there is no consensus on what technology can adequately and accurately accomplish that goal," according to a statement.
During a technology piracy conference held in Virginia in mid-May, an Educause representative told attendees that laws such as the one that passed in Tennessee also could be very costly to colleges and universities.
Methods under scrutiny
Even as the RIAA seeks legislation that would force schools to block illegal file sharing on their networks, the group continues to confront college students and other individuals suspected of online piracy with an ultimatum: Pay a royalty settlement out of court, or we’ll sue. But there is some legitimate doubt as to the legality of these actions.
The RIAA’s methods for identifying suspected file sharers have come under increased scrutiny by legal experts. And though the music industry trade association continues to defend its practices in court, the group has suffered a few legal setbacks in recent months.
A federal judge has ruled that the RIAA must pay the legal fees of Tanya Andersen, against whom the group was forced to drop its complaint when the courts found in her favor after she challenged the RIAA’s claims that she illegally shared music.
After no evidence of piracy was found on her computer, Andersen–a disabled single mother from Oregon–decided to sue the RIAA in turn, accusing the record companies of conspiracy and using tactics in their crackdown that amounted to extortion without even making sure they had the right person. Industry insiders say Andersen’s lawsuit could force the RIAA to reveal details about its investigation techniques, which many have termed controversial.
She is seeking national class-action status for the complaint.
In a separate case, defendant Jammie Thomas of Minnesota–the first person ordered by the courts to pay royalties after she unsuccessfully challenged the RIAA’s claims–might receive a new trial.
At issue is whether record companies have to prove anyone else actually downloaded their copyrighted songs, or whether it’s enough to argue that a defendant made copyrighted music available for copying online.
The recording industry says all it has to prove is that the defendant made the music available. Music-sharers have argued that the only proven downloaders of their music were investigators working for the record companies.
That was the case in Thomas’ trial last fall. U.S. District Court Judge Michael J. Davis instructed jurors that making sound recordings available without permission violates record company copyrights "regardless of whether actual distribution has been shown."
Soon after making that comment, Davis said it might have been a mistake.
He wrote that he found a 1993 ruling from the 8th Circuit Court of Appeals, which covers Minnesota, stating that infringement requires "an actual dissemination of either copies or phonorecords."
The question of how much the record companies have to prove to win their case came up just before Thomas’ trial went to the jury on Oct. 4. Davis decided the issue from the bench, siding with the jury instruction favored by the record companies.
Upon reevaluating his comments, Davis wrote that neither side presented the 1993 decision to him. And he noted that one of the rulings in another case from Arizona, which the record companies used to support their side, was vacated on April 29.
Oral arguments on the question of a new trial are planned for July 1.
Record company attorney Richard Gabriel said even if the companies have to prove downloading occurred, it should suffice to show the downloading was done by investigators working for the record companies.
He said they also proved at the trial that Thomas violated copyrights, because the files on her computer bore the signatures of online music pirates. Thomas claimed the music came from her own CDs.
"If we have to retry the case, we will do so without hesitation," Gabriel said.
Record companies have sued at least 30,000 people for distributing music online. Some cases have been dismissed, and many defendants–including several college students–have settled for a few thousand dollars. Thomas was the first to take the record companies all the way to trial.
Jurors ordered her to pay $222,000, which was $9,250 for each of the 24 songs the record companies brought up in her trial. The original lawsuit accused her of offering 1,702 songs on the Kazaa file-sharing network.
The question of how much the record companies must prove to win their lawsuits seems destined for more dates with appeals court judges.
Different judges have ruled different ways on the matter. In April, a federal judge at a pretrial ruling in Boston said that merely making songs available online is not copyright infringement. But a ruling by a New York judge took the opposite position.
Ray Beckerman, an attorney who has represented other downloading defendants and runs a blog tracking the most prominent cases, said the RIAA has been using the Thomas verdict to support its side.
"We’ve been saying all along that it was submitted to the jury on an improper theory, and now the judge recognizes his error and he realizes he was misled by record industry lawyers," Beckerman said.
Taking creative steps
Some colleges and universities aren’t waiting to see how these issues play out. Instead, they’re taking creative steps to crack down on piracy on their own campus networks.
Missouri University of Science and Technology (MUST), for instance, has launched an innovative program to address the problem. Instead of banning the use of peer-to-peer (P2P) file-sharing programs outright, as is common in many schools around the country, MUST allows P2P access for students who can pass an online quiz on copyright infringement.
Students must ace a six-question quiz on digital copyright law before gaining access to P2P software that allows users to share music and movies online.
As a result, the number of copyright complaints by the recording industry has plummeted from 200 in 2006-07 to just eight in the academic year that recently concluded, said Tim Doty, a campus systems security analyst.
"We’re not acting as copyright police," he said. "We’re still allowing peer-to-peer access, but in a controlled fashion. We’re providing [students with] the information to make an informed decision."
The University of Florida and Ohio University have made moves to eliminate access to P2P software–however, that software also can be used for research and other legitimate academic purposes.
At Stanford University, students who do not remove illegal downloads from their computers lose their campus internet connections and must pay $100 to reconnect. A second offense boosts that fee to $500.
Many schools have chosen to provide students with free, legal music-sharing programs such as Ruckus, Rhapsody, and the now-legal version of Napster. But those programs carry their own restrictions, from more limited song selections to the inability to transfer songs to iPods and other portable listening devices. Duke, Clemson, North Carolina State, Princeton, and Georgia Southern University are among those schools using Ruckus.
MUST students who complete the online quiz with a perfect score acquire six hours of P2P access. They are limited to eight uses a month, or a maximum of 20 each academic year.
Doty and other technology experts on campus acknowledge that the quiz isn’t foolproof, but instead is a deterrent. Each time a user logs on, the order of the six questions changes, as do the possible answers in the multiple-choice exercise.
"It’s intentionally worded so you have to read it," he said. "Otherwise, it becomes a click exercise. The intent is to educate."
Because illegal users can be identified only by a numerical internet address, the recording, film, and television industries rely upon colleges to match that information with the schools’ own records to identify users.
"Universities that educate their students about what’s legal online and what’s not are taking a step in the right direction," said Jonathan Lamy, an RIAA spokesman.
Material from the Associated Press was used in this report.