HEADLINE: The Recording Industry Association of America Sues Its Members' Customers;

The RIAA's major challenge will be proving that actual copying of copyrighted music took place

BYLINE: By Jonathan Bick; Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].

BODY:

Copyright owners have long avoided suing direct infringers for file-sharing because the cost and negative publicity associated with filing multiple lawsuits against individual users would be overwhelming. However, the Recording Industry Association of America recently filed 261 civil complaints against people who have allegedly distributed copyrighted music on peer-to-peer networks.

This cause of action is authorized by the Copyright Act, 17 U.S.C. 106 [2000], because the RIAA, which represents copyright owners, has the exclusive rights to reproduction, derivative works, distribution, public display and public performance of their work. Any party who contravenes these exclusive rights commits direct infringement according to 17 U.S.C. 501 [2000]. According to its Web site, RIAA.com, the stated objective of this action is to stop product from being stolen.

A peer-to-peer network, or file-sharing system, provides a means for sharing music. The method used has been documented in A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 901 [N.D. Cal. 2000]. This case describes in detail how users can download music from the Internet using existing technology.

Peer-to-peer file sharing uses the same technology with the exception that only two people in electronic contact need use the software technology described in the Napster case.

It should be noted that the RIAA litigation comes at a time when the Napster case and the Digital Millennium Copyright Act, 17 U.S.C. 1201-05 [2000], are generally acknowledged as acceptable law. Napster and the DMCA are hailed as high water marks with respect to the protection of record companies from the unauthorized copying of sound recordings made possible by advances in new technology.

In August, U.S. Sen. Norm Coleman [R.-Minn.], started an investigation of the proposition that the legal pendulum has swung too far in favor of copyright holders with respect to Internet related protections.

The RIAA's legal and economic motivations are not clear. While it can ask for as much as $150,000 for each copyright violation under U.S. copyright law, the likelihood of such a result is remote. The reason for this conclusion is that many, if not most, American direct Internet music infringers are children and, as I noted in 101 Things You Need to Know About Internet Law, a parent is almost never liable for a child's bad acts on the Internet. Thus, it is not likely that the collection of money damages is the motivation.

In light of the fact that most non-American direct Internet music infringers are located in jurisdictions that do not enforce U.S. copyright law, scaring current and potential downloaders does not seem to be the motivation.

Finally, the cost and the negative publicity associated with filing multiple lawsuits against individual users -- just to be able to say to their members that they did what they could to protect member interests -- would seem to overwhelm the motivation to sue its customers.

Most likely, the RIAA's recent action is simply a continuation of its past procedures in this area. It has implemented a program that focuses its efforts on the most significant "leakage" points in order to have the greatest impact.

Its Internet-related legal battles started with Napster and focused on MP3 devices. Next, it focused on peer-to-peer networks, and stepped up legal action against the end points of the Internet, such as universities and businesses.

Now that the largest infringement related entities have all been sued, it is taking action against individuals.

Without understanding the legal or economic motivations of the RIAA, it is difficult to assess what their realistic expectations are as far as results. In any case, it does not seem to be a cost-effective legal action.

From the perspective of a practicing attorney, the RIAA action is loaded with legal risk and little upside legal potential. In addition, the RIAA has exposed itself to class action suits and the acceleration of adverse legislative action.

A collateral suit has already been filed by California resident Eric Parke -- on behalf of the general public of the state -- against RIAA because of a program related to the RIAA lawsuits. The subject of the Parke suit is the RIAA amnesty program called "Clean Slate." The program allows people to avoid legal action by stepping forward and forfeiting any illegally traded songs.

The suit, filed in the Marin Superior Court of California, charges that the RIAA's program is a deceptive and fraudulent business practice. In particular, the complaint indicates that the program is designed to induce members of the general public to incriminate themselves and provide the RIAA and others with actionable admissions of wrongdoing under penalty of perjury while receiving no valid release of claims in exchange.

The Parke action seeks to stop the RIAA from engaging in unlawful, misleading and fraudulent business practices. In particular, the suit asks the court to enjoin the RIAA from falsely advertising its program.

Other collateral legal difficulties have arisen as a result of RIAA's litigation effort. For example, the Massachusetts Institute of Technology recently was legally compelled by RIAA to name Claudiu A. Prisnel '06 as an "alleged infringer," despite Prisnel's verified documentation that he does not own a computer and was out of the country for the months surrounding the alleged infringement.

MIT answered a subpoena from RIAA naming Prisnel in response to the industry association's request for the name of a network user who, on June 27, from a computer at Theta Delta Chi, allegedly offered hundreds of music recordings over the KaZaA file-trading system. It may be argued that RIAA misused its subpoena alternatives.

It should also be noted that the RIAA doesn't make or enforce the laws, and it cannot vote. The same cannot be said of the millions of file-sharers who may be motivated by the suit that the RIAA has instituted against a 12-year-old New York City girl for file sharing. As a result, file-sharers may now have more ammunition to use in their quest to persuade Congress to pass legislation that reduces copyright holders' Internet intellectual property protection rights.

In the mean time, it is likely that attorneys for alleged file-sharers will be required to undertake the burden of proving the elements of direct or contributory infringement, or vicarious liability, which rests with the copyright owner in a suit brought for copyright infringement.

According to Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 [1991], which is the leading case with respect to the elements that a plaintiff must prove in an infringement action; to establish infringement the plaintiff must demonstrate that the copyright holder has ownership of a valid copyright and that copying of constituent elements of a work that is original actually took place.

Plaintiff's ownership is based on the fulfillment of each of the following five requirements: [i] the work is originally in the author; [ii] the work is able to be copyrighted; [iii] a statute exists to allow a claim of copyright; [iv] the work is in compliance with applicable statutory formalities; and [v] a valid relationship exists between the author and the plaintiff. The RIAA should face little difficulty establishing these factors.

The RIAA's major challenge will be to prove that copying took place -- that is, that the file-sharer did in fact copy the material in question.

It is generally not practical to establish copying as a factual matter by direct evidence, chiefly because of the lack of a witness to the physical act of copying.

In addition, the copying of Internet content may occur without any objective physical manifestation. Therefore, the RIAA will have to prove copying indirectly, by establishing the defendant's access to the infringed material and the substantial similarity between the material in the defendant's possession and the copyright protected work. This should prove to be a substantial task for RIAA.