Early last month, after returning home to her apartment in Manhattan’s Upper East Side from a day of classes, Lorraine Sullivan noticed something different about her answering machine messages. She played through several messages left by reporters from the New York Times, the New York Post, the New York Daily News and the Wall Street Journal.
“You see it in the movies all the time-reporters asking for your comment about a case-I thought it was a joke at first,” Sullivan said. She had just been sued by the music industry’s largest trade group, the Recording Industry Association of America; she was among the first targets of a massive crackdown on Internet file-sharing.
“It felt like I had a mountain of doom over my head,” recounts Sullivan, a senior at Hunter College in Manhattan. News reports of other lawsuits kept running through her head. Reporters quoting numbers as high as $150,000 in damages per song replayed over and over as she frantically tried to contact the RIAA.
When she first reached the RIAA switchboard, the operator thought she was a reporter. After finally convincing her that she had been named a party in a lawsuit, she was transferred to the lawyer handling the settlements. He was out for the day; Sullivan would not know what she had been accused of until the next morning.
“It was all very nerve-racking,” she said. “You see your future flash before you and it doesn’t look good.”
On Sept. 8, the RIAA filed 261 lawsuits against users of various file-sharing programs. Jonathan Lamy, spokesman for the RIAA, says that the objective of the lawsuits is to deter users from illegally downloading and to promote legal ways of obtaining music. “The ultimate objective is for legal services to flourish,” said Lamy.
Prior to issuing the lawsuits, the recording industry had run a large-scale advertising campaign to convince the public not to share files illegally. In July, the RIAA took out full-page advertisements in several major newspapers, including the New York Times and the Washington Post, announcing they would soon be gathering information for future lawsuits.
“The lawsuits only came after an extensive campaign to inform users,” Lamy said.
The RIAA’s lawsuits target users of various so-called “peer-to-peer” networks, which are accessed by software applications such as KazAA, Morpheus, Limewire, and others. Unlike the earlier Napster network, peer-to-peer networks do not rely on centralized servers. There is no proverbial “head” to cut off, so efforts to end sharing must target individual users.
The effect that such lawsuits have had on file sharing has arguably been negligible. Each day, millions of users continue to log on to these peer-to-peer networks. However, the lawsuits have pushed discussions of the legality of file-sharing to center stage.
“Undoubtedly,” remarked Lamy, ” awareness that this is illegal is skyrocketing-it’s becoming the discussion topic at kitchen tables across the country.”
In a survey of 40 Georgetown University undergraduates, 87 percent were familiar with the recent RIAA lawsuits. Of those familiar, 48 percent responded that they were downloading less because of the lawsuits. For the other 52 percent, the lawsuits had no effect on their downloading habits.
Despite the fact that almost half the people polled were downloading less, only 7 percent reported that they would purchase more music as a result of the lawsuits. The remaining 93 percent would either buy the same (66 percent) or less (27 percent). This indicates that the lawsuits have not had a large impact on record sales. The 27 percent of respondents who replied they would be buying less music may be representative of those who view the recording industry in a negative light because of the lawsuits.
However, the RIAA is not primarily concerned about its image. “The goal here,” Lamy said, “is not to win a public relations war, it’s to communicate deterrence.”
Recently, several dramatic examples of the RIAA targeting “vulnerable” people have been in the news. Such was the case for 12-year-old Briana Lahara from Manhattan’s Upper West Side. Many have cited these stories to show that the RIAA is being heartless in its efforts to quash file-sharing.
Lamy contends this is not the case. While certain examples may draw sympathy from the public, in general the group of people targeted by lawsuits knew what they were doing, and knew that it was wrong. Furthermore, Lamy said, “you need to be intentionally random in selection to achieve deterrence.” If people knew the trends that the RIAA was looking for, they could change their downloading habits to avoid getting caught. The RIAA knows very little about each person before a suit is filed. They do not run background checks before they file litigation. All they know is the user’s name and address.
Universities and their students are especially at risk for lawsuits, simply because of the large number of students with access to high-speed Internet connections. Over the summer, Boston College was issued three subpoenas by the RIAA, demanding they turn over the names of students it believed were file-sharing. Boston College decided to fight the lawsuit.
According to Joseph M. Herlihy, general counsel for Boston College, the legal challenge arose from a collision of the Family Education Rights and Privacy Act (FERPA) and the Digital Millennium Copyright Act (DMCA).
FERPA requires that a student’s educational records can only be released in response to a “lawfully issued” subpoena. Herlihy and Boston College objected to the RIAA’s subpoenas because they were issued by the United States District Court for the District of Columbia, which does not have jurisdiction in Boston.
“Because of FERPA,” said Herlihy, “I cannot waive that issue.”
Furthermore, FERPA stipulates that students must be given “advance notice” that their educational records have been subpoenaed. At Boston College, the policy is to give the student seven days notice before their records are turned over, so that they have time to challenge the subpoena on their own. Under the DMCA, service providers-or in this case, Boston College-must “expeditiously disclose” the information sought. Ignoring FERPA, the RIAA demanded a prompt response.
“To the RIAA, prompt means pretty damn quick,” Herlihy said.
The case went before the a federal court in Boston, which ruled in favor of Boston College. The original three subpoenas were thrown out.
To many outside observers, it appeared as though Boston College was taking an ideological stand against the RIAA. However, according to Herlihy, this was not the case. In a broadcast e-mail to the Boston College student body, he wrote “Boston College’s action has led many to believe that the University is “opposing” the recording industry in the efforts to curtail copyright infringement on the Internet. This is an unfortunate misconception.”
While Boston College did stand up to defend its students’ rights under FERPA, the University was not attempting to protect students who had illegally shared files.
Following the challenge, Herlihy and Boston College received mixed feedback from both sides of the file-sharing battle.
“The University did receive some unwanted praise and also undeserved criticism,” said Herlihy. “Someone accused me of moral failure on the same scale as the Archdiocese of Boston.”
Following Boston College’s victory in court, the RIAA did reissue the subpoenas in the proper court. Herlihy complied and released the information on two of the three students. The third student has independently challenged the subpoena.
While Boston College did turn over the names of the students who were allegedly sharing copyrighted materials, Herlihy was careful to say that the information was only the name and address associated with the computer that was identified by the RIAA. Such information does not provide evidence as to who exactly was using the computer at the time the RIAA discovered the copyrighted materials. This method allows students the easy out of claiming someone had borrowed their computer, or that they didn’t know someone had installed such software.
“There is still an issue of proof,” Herlihy said.
At Georgetown, there has not yet been a lawsuit issued against a student. However, University Information Services is still taking the issue seriously. According to Ardoth Hassler, associate vice president for University Information Services, the University has been contacted in the past by the RIAA regarding copyright violations on the Georgetown network, and warning letters have been issued to the students responsible. While UIS does not conduct its own internal investigations to identify students who may be sharing copyrighted files, they do comply with any complaints from copyright holders.
Hassler noted that recent developments in anti-piracy software have allowed copyright holders to search more efficiently and accurately track down people who share files. “The probability of the abuser being caught by a publisher is higher.”
With new technology to locate people offering files for download, many users simply disable sharing while continuing to download. One Georgetown student, a computer science major who declined to be identified, said he still downloads just as many files. “I just never shared my stuff,” he said. “I’ve never been very worried about getting caught.”
As far as Georgetown’s policy for complying with DMCA subpoenas, Julie Green Bataille, assistant vice president for communications, made it clear that the University will cooperate.
“The reality is that Georgetown, should the institution receive a subpoena, will comply with the law,” said Bataille. What is still unclear is whether the University would take steps to fight a DMCA subpoena through FERPA or other legal avenues. “Any such case,” said Bataille, “would be handled individually and, depending on the information available, we will respond as appropriate.” However, FERPA issues aside, once a subpoena is issued, it is up to the student to challenge the suit.
Sullivan didn’t fight her lawsuit; she couldn’t afford to. Because it was a civil and not a criminal case, the burden of proof on the RIAA was much less.
“The bottom line,” she said, “was that they could prove that I had downloaded songs, some of which were copyrighted, and I, at one point at least, whether meaning to or not, made these songs available to other users.”
“Plus, I don’t think I could deal with the disruption that months of litigation, not to mention money and stress, would cause.”
She settled the case, and agreed to pay the RIAA $2,500. As a part of her settlement, she admitted to having downloaded and shared copyrighted works, and promised to never infringe upon works copyrighted by the RIAA in the future. In addition, she cannot make public statements inconsistent with the terms of the lawsuit.
Though Sullivan settled with the RIAA, the fight did not end there. Instead, she took the battle back to the Internet, and created a website, suedbytheriaa.com.
Sullivan originally started the site as a way to both solicit donations to help pay the $2,500 settlement and to get information out to others targeted by the RIAA’s lawsuits. As of Wednesday night, Sullivan had raised $932.92 from the site.
Overall, Sullivan was pleased with the response to her site. She received many letters of support along with donations.
“It was just nice to know from those who showed support that I wasn’t alone,” she remarked, “it certainly took some of the worry off my shoulders.”
In addition, Sullivan also received e-mails telling her that she deserved the lawsuit. She also received e-mails just wanting to discuss the issue of file-sharing in general.
For many users, including Lorraine Sullivan, using peer-to-peer software was a way to enhance their music-listening experience.
“I actually remained an actual consumer of music even though I downloaded songs,” said Sullivan. She used the peer-to-peer networks to download individual tracks from albums before she would buy them in the store. She believed that this helped her find new music and was beneficial to both her and the artists she was discovering.
Sullivan won’t be buying any more albums until the RIAA’s lawsuit campaign is over. She believes the RIAA is trying to put the blame for dwindling record sales on someone else.
“They want to blame their sales slump entirely on downloading but they need to consider that we’ve been in a recession and maybe take a better look at the quality of their music,” said Sullivan, who still considers herself a music fan at heart.
“I would never want to hurt the artists I support, but the RIAA needs to go about all of this in a different way. I like what Chuck D [of Public Enemy] said-the RIAA needs to ‘adapt or die.’”
