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Peer-to-Peer Litigation: The “Making Available” Argument and the Need for Legislation

Peer-to-Peer Litigation: The “Making Available” Argument and the Need for Legislation

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Published by AyrLaw
Peer-to-Peer Litigation: The “Making Available” Argument and the Need for Legislation
Peer-to-Peer Litigation: The “Making Available” Argument and the Need for Legislation

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Published by: AyrLaw on Apr 08, 2011
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05/12/2014

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Steven AyrAdvanced Issues inTrademark and CopyrightProfessor Damich5/9/08
Peer-to-Peer Litigation: The “Making Available” Argument and theNeed for Legislation
In February of 2005, Jammie Thomas was just another one of the hundreds of thousands of individuals using the peer-to-peer program Kazaa to download and sharemusic. By October of 2007, she had become the first individual to challenge theRecording Industry Association of America all the way through trial. By October 4th,she owed the recording industry a quarter of a million dollars
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.
Ms. Thomas’ outcome may be unique, but her position, squarely in the crosshairsof the recording industry, is not. Since the inception of peer-to-peer file sharing, theRecording Industry of America (RIAA), the music industry’s representative trade group,has filed suit or threatened to file suit against more than 19,000 individuals for infringing their exclusive right of distribution under the Copyright Act
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. In most cases, thedefendants or potential defendants have chosen to settle the claims against them ratherthan take their chances in court. Among the reasons settlement has been an attractiveoption to defendants is the incredible uncertainty over what a trial court would require asevidence against them. The RIAA, in an effort to evade the evidentiary problems causedby new technology, is seeking to greatly expand the definition of “distribution” under theCopyright Act by advancing a “making available” conception of that exclusive right. Inso doing, the RIAA is attempting to greatly expand protection for the copyrighted worksof its members. To date, trial courts throughout the country have failed to come to aconsensus, leaving defendants guessing as to their liability, and the state of the law whollyin flux.
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Bangeman, Eric,
RIAA trial verdict is in: Jury finds Thomas Liable for Infringement 
, Ars Technica,
at 
 http://arstechnica.com/news.ars/post/20071004-verdict-is-in.html (Oct. 4, 2007).
2
 
Stokes, Jon,
The RIAA vs. the EFF: who will redefine copyright for the digital age
, Ars Technica,
at 
 https://arstechnica.com/mews.ars/post/20060418-6626.html (April 18, 2006).
 
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Legislation is required if there is to be certainty and fairness for defendants, andeffective legal recourse for the recording industry. As a group, the recording industryfinds itself facing a technology that allows infringement on an enormous scale and aCopyright Act that provides them little recourse against it. Moreover, their mostsignificant attempt to expand protection under this Act, the “making available” argument,fails, as they garner no support from the language of the Copyright Act, the torturing of the definition of “publication”, the Register of Copyrights, or the case law. Further, inthe resulting confusion the courts have at times ground to a halt and individuals havebeen subjected to terrific uncertainty.
The Recording Industry and Peer-to-Peer
The RIAA speculates that the recording industry worldwide loses up to $12.5billion a year between online and more traditional forms of piracy.
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A large portion of online piracy is accomplished through the use of peer-to-peer file-sharing software, nowoperating mostly on the Gnutella network.
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Using pieces of software, users log on to thefile-sharing network from their individual computers and are immediately connected tocountless users all over the world. Once connected, users can search the computers of other users (typically, only those files contained in the users’ “shared” folder), anddownload those files of interest to them. All types of files can be downloaded to anindividual computer in this manner, and users often use this means to acquire copies of sound recordings in contravention of 17 U.S.C. § 106 (1) and (3). The RIAA has beensuccessful in suing a number of developers of peer-to-peer software developers, mostnotably in
MGM v. Grokster 
.
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, and continues to sue others.
Peer-to-peer software is unique however, in that it does not require a centralized,established, software developer. Peer-to-peer software is in fact largely self-perpetuating.The reason is the difference between the client and the network. Peer-to-peer software, asa colloquial term, describes the file-sharing client, that is, the software on the individualcomputer that connects to the network. The network can be more aptly described as auniform piece of code found in the clients that allows users to connect to each other.Software developers create clients with different user interfaces, search options, etc., all
3
 
RIAA,
For Students Doing Reports
,
at 
http://www.riaa.org/faq.php (last visited May 9, 2008).
4
 
Bangeman, Eric,
Study: BitTorrent sees big growth, LimeWire still #1 P2P app
, Ars Technica
at 
http://arstechnica.com/news.ars/post/20080421-study-bittorren-sees-big-growth-limewire-still-1-p2p-app.html(April 21, 2008).
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Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.
, 545 U.S. 913 (2005).
 
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built around the same piece of code, allowing them to connect to each other andinteroperate.As a practical matter, this means that the network is not dependent upon any oneclient, or any one software developer, for its existence. Additionally, the piece of code thatrepresents the network is open-source, meaning that it’s free for any software developer toutilize in creating a file-sharing client. What this means for the RIAA is that when it suesan individual software developer, even a victory will mean the elimination of a singleentity from a market where it can be replaced almost immediately. Additionally, becausethere is no centralized network, but rather a disparate connection of computers to oneanother, once a client is released there’s no effective way of taking it back, it will alwaysfunction so long as there are other users maing use of it. It is this decentralized, self-perpetuating quality of peer-to-peer networs that limits the effectiveness of RIAA lawsuits against software developers and distributors, and has driven the RIAA to seek recompense from individual users.The RIAA starts the process of bringing suit against a peer-to-peer user with aninvestigation. To date, the RIAA has used a company called MediaSentry to conduct allof its investigations into peer-to-peer users. Typically, an investigator from MediaSentrywill sign onto a peer-to-peer client such as Kazaa and conduct a search for music fileswhose copyright is owned by one of the RIAA’s member companies. Once a music file islocated, the investigator will make use of a Kazaa feature that allows one to see the entirecontents of a user’s “Shared Folder”. The shared folder is that folder that a userdesignates as the location on their computer the contents of which will be shared withother users, and to which all of a user’s downloads will be saved. Having accessed thecontents of a user’s shared folder, the investigator will take a screenshot, a digital pictureof the contents of the investigator’s monitor at a given time, of the folder and downloadseveral of the copyrighted sound recordings
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.Associated with each Kazaa user is a screen name and an Internet Protocol (IP)address. The screen name is a name that the user designates for themselves upon theinstallation of the Kazaa software, whereas the IP address is a number unique to theuser’s internet location, and which can be used to determine their internet serviceprovider (ISP). Both the screen name and IP address are shown for each user as afunction of the Kazaa software. The RIAA uses the screen name, and more importantly,the IP address to file suit against a John Doe, obtain an ex parte order for immediatediscovery, and to issue a subpoena to the ISP compelling disclosure of the user’s name
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Plaintiff’s Statement of the Case at 2,
Capitol Records, Inc. v. Thomas
, No. 06-cv-1497 (D. Minn. 2007).

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