Donald P. Harris has self-archived "The New Prohibition: A Look at the Copyright Wars through the Lens of Alcohol Prohibition" in SSRN.
Here's an excerpt:
This Article argues that legislators, commentators, and the copyright industry must entertain laws that embrace filesharing, and seek other ways to incentivize artists and other creators. The Article traces Alcohol Prohibition of the 1920s and 1930s as an historical example of laws that were inconsistent with the vast majority of society's morals and norms. Looking back, one can see many similarities between the Alcohol and Filesharing Prohibitions. The Article suggests, then, that lessons learned from the failed "noble experiment" of Alcohol Prohibition should be applied to the current filesharing controversy. Doing so, the Article advocates legalizing certain noncommercial filesharing. A scheme along these lines will comport with societal norms and will force new business models to replace outdated and ineffective business models.
| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |
Walt Crawford has published "Catching Up with the RIAA" in Cites & Insights: Crawford at Large.
Here's an excerpt:
Briefly, Jammie Thomas was the defendant in the first case where an RIAA filesharing infringement suit actually went to a jury—despite RIAA's best efforts to avoid that happening. Thomas seemed like a sympathetic defendant: Single mother, Native American. But her IP address was attached to a KaZaA account offering more than 1,700 recordings with a user name she'd apparently used for years on several different accounts…and shortly after receiving a settlement letter from RIAA, Thomas had Best Buy replace the hard drive in her PC. And, under questioning, said it had been replaced a year earlier. To make a long story short—up to October 2007, at least—the jury found her guilty, not surprising given the evidence in the case. The judgment was for $220,000. She appealed the decision, in part based on a claimed flaw in the jury instructions. That's where things stood at the time of the earlier article.
Court activities can sometimes seem to be in very slow motion. Most of this article brings things up to date on the Thomas case—and, so you're not too surprised, it's not over yet. (There's other stuff about RIAA and copyright at the end of the article—but the Jammie Thomas saga is fascinating.)
Morgan G. I. Langille and Jonathan A. Eisen have published "BioTorrents: A File Sharing Service for Scientific Data" in PLoS ONE.
Here's an excerpt:
The transfer of scientific data has emerged as a significant challenge, as datasets continue to grow in size and demand for open access sharing increases. Current methods for file transfer do not scale well for large files and can cause long transfer times. In this study we present BioTorrents, a website that allows open access sharing of scientific data and uses the popular BitTorrent peer-to-peer file sharing technology. BioTorrents allows files to be transferred rapidly due to the sharing of bandwidth across multiple institutions and provides more reliable file transfers due to the built-in error checking of the file sharing technology. BioTorrents contains multiple features, including keyword searching, category browsing, RSS feeds, torrent comments, and a discussion forum. BioTorrents is available at http://www.biotorrents.net.
Michael J. Davis, Chief Judge of the Minnesota United States District Court, has ruled that Jammie Thomas-Rasset's file sharing fine be reduced to $2,250 per song from $80,000 per song.
Here's an excerpt from the ruling:
After long and careful deliberation, the Court grants in part and denies in part Thomas-Rasset's motion and remits the damages award to $2,250 per song—three times the statutory minimum. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. Moreover, although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages.
The Court has labored to fashion a reasonable limit on statutory damages awards against noncommercial individuals who illegally download and upload music such that the award of statutory damages does not veer into the realm of gross injustice. Finding a precise dollar amount that delineates the border between the jury's wide discretion to calculate its own number to address Thomas-Rasset's willful violations, Plaintiffs' far-reaching, but nebulous damages, and the need to deter online piracy in general and the outrageousness of a $2 million verdict is a considerable task. The Court concludes that setting the limit at three times the minimum statutory damages amount in this case is the most reasoned solution.
This award constitutes the maximum amount a jury could reasonably award to both compensate Plaintiffs and address the deterrence aspect of the Copyright Act. This reduced award is significant and harsh. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court. It was the jury's province to determine the award of statutory damages and this Court has merely reduced that award to the maximum amount that is no longer monstrous and shocking. Plaintiffs have seven days from the date of this Order to decide whether to accept the remittitur or request a new trial on the issue of damages.
The Court denies Thomas-Rasset's motion for a new trial based on the admission of evidence collected by MediaSentry. It further denies her motion for a new trial based on Plaintiffs' failure to produce certified copies of the sound recordings deposited with the Copyright Office.
Finally, the Court grants Plaintiffs' request to amend the Judgment to include a permanent injunction.
Read more about it at "Court Reduces 'Shocking' File Sharing Award" and "Judge Slashes RIAA's $1.92 Million Fine against Minnesota Mom."
The U.S. Department of Justice has submitted a brief to the U.S. District Court for the District of Minnesota supporting the $1.92 million statutory damages award that Jammie Thomas-Rasset must pay for illegally sharing 24 songs ($80,000 per song).
Read more about it at "DOJ Doesn't Believe $80,000 per Song Unconstitutional or Oppressive," "Justice Department Defends Massive File-Swapping Fine," and "US Govt Says $1.92M P2P Damage Award Totally Fair."
Under pressure from the Irish Recorded Music Association, a large Irish ISP, Eircom, will put in place a three-strikes policy in August against alleged copyright offenders: first strike, a warning; second strike, Internet service will be "throttled," and, third strike, Internet service will be disconnected.
Read more about it at "Ireland's Largest ISP to Start 'Throttling' Illegal Downloaders," "Ireland’s Largest ISP Starts Throttling and Disconnections," "Recording Industry Sues More Irish ISPs for Not Implementing 3 Strikes."
The French National Assembly has passed the Création et Internet bill, a "three-strikes" copyright bill intended to curb illegal file sharing on the Internet by disconnecting offenders from the network on their third offense. The bill conflicts with a recently passed European Parliament law that prohibits EU member counties from disconnecting Internet users without judicial oversight.
Read more about it at "France Ignores EU and Passes Antipiracy Law" and "France Set for Showdown with EU after Passing 3 Strikes Law."
On 3/5/2009, Rep. Mary Bono Mack (R-CA) introduced the Informed P2P User Act. The Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce held a hearing on the bill today.
Here's an excerpt from Marc Rotenberg's testimony (Rotenberg is the Executive Director of the Electronic Privacy Information Center):
In the consideration of this bill, it is important to understand that P2P programs are used for a wide variety of function from the sharing of music to Internet-based telephony as well as scientific research. Even the military makes use of P2P networks. The technique is also important in countries where Internet censorship is a threat.
In the most generic sense, a P2P network is a technical description, much like saying a telephone network or the Internet. It is no intrinsic application, other than architecture that allows nodes to exchange information equally with other nodes in the network. Some Internet scholars have observed that this architecture reflects the collaboration among individuals that has helped spur the growth of the Internet. Professor Yochai Benkler refers to this as "Commons Based Peer Production."
No doubt part of the bill aims to discourage the use of file sharing techniques that may infringe copyright as well as making users vulnerable to certain types of inadvertent file sharing. But there is some risk that the bill would also discourage the use of file sharing techniques that do not raise such concerns. More generally, it appears to be posting a warning sign on a very wide variety of applications that most likely have little to do with the sponsor’s concern.
Read more about it at "H.R. 1319 Wants You to Know When You're Sharing Files, but Will Drown You in Pop-Ups" and "P2P Bill Could Regulate Web Browsers, FTP Clients."
Taiwan's parliament has passed a "three strikes" copyright law, which is intended to curb illegal file sharing.
Read more about it at "Net Service Providers Now Can 'Strike Out' Pirating Surfers" and "Taiwan Boosts Intellectual Property Protection."
The French National Assembly has approved a key provision of a new copyright law that is aimed at curbing illegal file sharing on the Internet. Violators would receive two warning letters, then be subject to Internet disconnection for up to a year.
New Zealand has recently decided not to enact a "three-strikes" law, and will rewrite it. Recent enactment of a new Swedish law that requires ISPs to reveal the identity of potential violators has resulted in Internet traffic in that country dropping by a third. The EFF has recently debunked reports that some U.S. ISPs, prodded by the RIAA, would disconnect U.S. violators; however, Wired has reported that the MPAA is now in negotiations with ISPs regarding disconnection.
Read more about it at "France Approves Main Section of Tough Anti-P2P Bill," "French Pass 'Three Strikes,' File-Sharing Law: Oh Merde" and "French '3 Strikes' Law Passes 2nd Reading."
The Tennessee Fiscal Review Committee estimates that SB 3974, a recently passed state law aimed at stopping copyright infringement in higher education institutions, will initially cost state institutions over $9.5 million, with ongoing annual costs topping $1.6 million in FY 08-09 and $1.9 million in succeeding years.
Read more about it at "RIAA Gets Tennessee Law to Force Universities to Filter Networks for Copyrighted Content"; "RIAA Wins, Campuses Lose as Tennessee Governor Signs Campus Network Filtering Law"; and "Tennessee Anti-P2P Law to Cost Colleges over $13 Million."
United States District Court Judge Michael Davis has ruled in the widely publicized Capitol Records v. Jammie Thomas case that merely making a digital work available is not enough to constitute infringement, rather the work must be accessed and such access must be proved. Since this was not the instruction given to the jury, Thomas has been granted a new trial.
The judge also commented on the disproportionate size of the awarded damages ($222,000 for 24 songs):
While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.
Read more about it at "Capitol v. Thomas: Judge Orders New Trial, Implores Congress to Lower Statutory Penalties for P2P"; "Judge Declares Mistrial in RIAA-Jammie Thomas Trial"; and "Thomas Verdict Overturned, Making Available Theory Rejected."
The Electronic Frontier Foundation has released Switzerland, an open source software tool for testing your ISP's net neutrality.
Here's an excerpt from the announcement:
Part of EFF's "Test your ISP" project, Switzerland is an open source, command-line software tool designed to detect the modification or injection of packets of data by ISPs. Switzerland detects changes made by software tools believed to be in use by ISPs such as Sandvine and AudibleMagic, advertising systems like FairEagle, and various censorship systems. Although currently intended for use by technically sophisticated Internet users, development plans aim to make the tool increasingly easy to use.
The Senate passed the Higher Education Opportunity Act, which includes provisions that require higher education institutions to take steps to curb illegal file sharing. The bill now goes to President Bush for signature.
Read more about it at "College Funding Bill Passed with Anti-P2P Provisions Intact" and "Mixed Reviews for Illegal File-Sharing on Campus."
The House passed the Higher Education Opportunity Act, which includes provisions that require higher education institutions to take steps to curb illegal file sharing.
On July 30, 2008, EDUCAUSE issued a letter about the revised copyright provisions of the bill.
Here's an excerpt from that letter:
Section 493 (also below) is the result of much tug-and-pull over the last few months. In the end, it will require every college and university to certify that it "(A) has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents; and (B) will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer or other designated officer of the institution."
The language of (A) represents a weaker requirement on colleges than had been discussed in some previous proposals. In particular, the Report language makes clear (see below) that technological deterrents "include bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices, and a variety of commercial products designed to reduce or block illegal file sharing." Further, the Report states that the bill is to be considered technology neutral. It should be up to the institution to determine its policy and corresponding technology, which can include policies that prohibit the monitoring of content.
The language of (B) is stronger than in the previous version, in that it requires that institutions certify that they "will . . . offer alternatives" instead of simply requiring plans for them. There is considerable flexibility, however, in that the institutions must interpret the "to the extent practicable" qualifier in the context of their own situation. Moreover, access to legal alternative services may be accomplished in a growing number of ways, including institutionally provided on-campus services, providing links to a variety of commercial services, and other procedures, as indicated in the Report language. "The Conferees recognize that there is a broad range of possibilities that exist for institutions to consider in developing plans for purposes of complying with this Section."
Read more about it at "Congress Tackles the Higher Ed Act" and "EDUCAUSE Comments on the File Sharing Provisions in the HEA."
The UK's six largest ISPs and the British Phonographic Industry (BPI) have signed a Memorandum of Understanding about restraining illegal file sharing.
Here's an excerpt from the BPI press release:
UK record labels' association BPI today reached a groundbreaking agreement with major internet service providers (ISPs) and government on measures to help significantly reduce illegal filesharing.
Following negotiations facilitated by the Department for Business, Enterprise and Regulatory Reform (BERR), BPI on behalf of hundreds of UK record companies big and small has signed a Memorandum of Understanding (MOU), with the UK's six largest internet service providers. The Motion Pictures Association of America and BERR have also signed.
The MOU places joint commitments on the signatories to continue developing consumer education programmes and legal online services. Most importantly, for the first time ISPs will be required to work with music and other rightsholders towards a "significant reduction" in illegal filesharing.
To achieve this, in the first year hundreds of thousands of informative letters will be sent by participating ISPs to customers whose accounts have been identified by BPI as being used illegally. In addition, under the auspices of Ofcom, the signatories will work together to identify effective mechanisms to deal with repeat offenders.
Alongside the MOU, BERR has today published a consultation on proposed new legislation requiring ISPs to deal effectively with illegal filesharing. It is anticipated that the outcome of this consultation will provide a co-regulatory backdrop to the MOU.
Read more about it at: "ISPs to Send 'Hundreds of Thousands' of File-Sharing Warnings"; "ISPs Yet to Decide on File-Sharer Punishment"; "Online Crackdown: What You Need to Know"; "'This Is Not Three Strikes and You're Out. It Is a Letter'"; and "Transcript from BPI Call with Journalists This Morning."
Federal Communications Commission Chairman Kevin Martin will try to get the FCC to approve an order to Comcast to stop throttling P2P downloads and to provide details about its current and planned network management practices.
Read more about it at: "Comcast Loses: FCC Head Slams Company's P2P Filtering," "Comcast Ordered to Stop BitTorrent Traffic Interference," "FCC: Comcast Broke Rules, But Will Not Face Fines," and "Internet Users Stop Comcast, Net Neutrality Win on the Horizon."
A technical report ("Challenges and Directions for Monitoring P2P File Sharing Networks—or—Why My Printer Received a DMCA Takedown Notice") by two researchers at the University of Washington's Department of Computer Science and Engineering calls into question the accuracy of media companies' BitTorrent infringement detection methods.
Here's an excerpt from the paper:
Copyright holders utilize inconclusive methods for identifying infringing BitTorrent users. We were able to generate hundreds of DMCA takedown notices for machines under our control at the University of Washington that were not downloading or sharing any content.
Read more about it at "The Inexact Science Behind DMCA Takedown Notices" and "Study Reveals Reckless Anti-Piracy Antics."
Vuze has issued a report (First Results from Vuze Network Monitoring Tool) analyzing the network management tactics of ISPs.
Here's an excerpt from the report:
We believe that there is sufficient data to suggest that network management practices that "throttle" internet traffic are widespread. At a minimum, more investigation is required to determine whether these resets are happening in the ordinary course of business or whether they represent the kind of throttling practices which target specific applications and/or protocols, harming the consumer experience and stifling innovation.
Read more about it at "Study: All Major Broadband Providers Disrupt P2P," "U.S. Senate Committee Tackles Net Neutrality Today," and "Vuze Says Some ISPs Abuse TCP Resets; Data Not That Clearcut."
EDUCAUSE has released a podcast on P2P file sharing called "Don't Download This Panel." The podcast is from a panel discussion about the topic at the EDUCAUSE 2008 Western Regional Conference.
The speakers are:
- Greg DePriest, Vice President, Technology Policy, NBC Universal
- Kenneth C. Green, Founding Director, The Campus Computing Project
- Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation
- Session moderator: Kent Wada, Director, IT Strategic Policy, UCLA
Comcast and Pando Networks have announced that they want to create a P2P Bill of Rights and Responsibilities. The announcement was greeted with skepticism by some net neutrality advocates.
Here's an excerpt from the press release:
Comcast Corporation and Pando Networks, Inc. announced today they will lead an industry-wide effort to create a "P2P Bill of Rights and Responsibilities" (BRR) for peer-to-peer (P2P) users and Internet Service Providers (ISPs). The two companies plan to collaborate and engage with industry experts, other ISPs and P2P companies, content providers and others to set a framework for the BRR that can serve as a best practice. The purpose would be to clarify what choices and controls consumers should have when using P2P applications as well as what processes and practices ISPs should use to manage P2P applications running on their networks. For example, P2P users should have the right to control their computers’ resources when using P2P applications.
In addition, Comcast and Pando plan to conduct a test of Pando Network Aware™ P2P technology on Comcast’s fiber-optic network. The purpose of the test will be to capture and analyze the data flow associated with downloading a file using Pando’s P2P application. These tests, along with tests Pando will conduct on a variety of other ISP networks, including cable, DSL, fiber and wireless, will measure things like performance, speed, distance and geography as well as the bandwidth consumption impact to the ISP. Comcast, Pando and the P4P Working Group plan to publish the results of these tests so other ISPs can benefit from understanding how P2P applications might be optimized for traveling over different types of networks in different environments and geographies.
Today’s announcement builds on Comcast’s March 27th announcement to collaborate with BitTorrent and the broader Internet and ISP community to more effectively address issues associated with rich media content and network capacity management. It also builds on Pando’s recent announcements of its P4P test results which demonstrated Pando’s ability to reduce network congestion and speed content delivery by routing P2P traffic more effectively across cable, DSL, and fiber broadband networks.
The Pando test will provide additional data to help Comcast migrate to a protocol-agnostic network management technique by the end of this year. The arrangement is yet another example of how these technical issues can be worked out through private business discussions and without the need for government intervention.
Read more about it at "But Why Do We Need a P2P Bill Of Rights in the First Place?"; "Comcast Calls for 'P2P Bill of Rights'"; "Comcast Loves File Sharing, Honest!"; "Comcast to Spearhead Creation of P2P Bill of Rights"; "Comcast Wants to Be the Net's Judge, Jury, and Executioner"; and "Public Knowledge Calls Comcast-Pando Proposal 'Ludicrous'."
Of late, there has been increased attention by the courts about the legality of having digital music files in P2P software folders where other P2P users could retrieve them.
Noted copyright attorney William Patry has reviewed three cases (Atlantic v. Brennan, Elektra v. Barker, and London-Sire v. Doe) involving this issue in "The Recent Making Available Cases."
In a ruling in the Elektra v. Barker case, United States District Judge Kenneth M. Karas has ruled that having digital music files in a KaZaA shared folder is a violation of copyright holders' distribution rights. EFF attorney Fred von Lohmann said that the ruling was an important precedent.
Read more about it at "New Ruling May 'Grease the Wheels" of RIAA Litigation Machine."
EDUCAUSE has released "EDUCAUSE Live! Podcast: Update on Key U.S. Copyright Developments," in which James G. Neal, Vice President for Information Services and University Librarian at Columbia University, discusses recent copyright issues.
Here's a description of the podcast:
Copyright continues to be a core interest of the higher education and academic library communities. This briefing focuses on eight critical legislative and legal arenas where the United States will be working on copyright: orphan works, digital fair use, broadcast flag, Section 1201 anti-circumvention rulemaking, electronic reserves, peer-to-peer file sharing, open access to government-funded research, and the report of the Section 108 Study Group on exceptions and limitations for libraries and archives. The work of the study group is highlighted, including its primary findings and recommendations. In addition, two important recent studies are described and their importance for libraries are cited. The advocacy and educational roles and responsibilities of librarians on copyright also is outlined.
The American Council on Education has sent a letter to Senators Edward M. Kennedy and Michael B. Enzi regarding copyright infringement provisions in the College Opportunity and Affordability Act.
In it, the ACE states:
Recent investigations and reports to the Joint Committee of the Higher Education and Entertainment Communities concluded that legitimate online alternatives and technologies designed to deter illegal file sharing are largely ineffective. A widely distributed 2005 study commissioned by the Motion Picture Association of America (MPAA) indicated that 44 percent of its domestic losses due to illegal file sharing were attributable to college students. However, MPAA revealed in January that a re-examination of those data determined that the estimated loss due to college students was in fact 15 percent, not 44 percent. Moreover, since only 20 percent of college students nationwide reside on campus, only 3 percent of MPAA losses can be attributed to college students using campus networks.
The Motion Picture Association of America (MPAA) has responded with its own letter, refuting the ACE letter. It states:
One filtering product is now deployed at approximately 70 colleges and universities across the country, and it has demonstrated the ability to impede illegal P2P activity on a number of campus networks.
Further, the letter claims that one university has had significant cost savings as a result of filtering.
Meanwhile, an MPAA study revealed that the movie industry experienced record-breaking profits in 2007, casting some doubt on how significant the piracy threat really is.
Read more about it at "Entertainment Industry Urges Congress to Get Tough with Colleges on File-Sharing," "Hollywood's Record Year Shows MPAA's Piracy Folly," and "MPAA to Congress: Filtering Is in Colleges' Best Interests."