The Day the Music Died…

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Last month’s arrests and shutdown of operations in England and the Netherlands of OiNK, the latest Napster-like attempt at peer-to-peer shared music downloads, was easily overshadowed in the news by the shutdown of the free press and public expression in Pakistan by General (and President for Life) Pervez Musharraf.

Nonetheless, the iron heel still sounds and feels the same when it stomps down. For some of us brought up in the Sixties, these rebel attempts to freely share information brings back memories of the “pirate” and “free” radio stations that sprang up back then, which had the audacity to broadcast songs and whole albums of all kinds of music, without commercials, DJ babble and hype or censorship. See, http://en.wikipedia.org/wiki/Pirate_radio.

Isn’t it about freedom and sharing? Look at the opponents of government control and censorship of free speech and computer information sharing, who are struggling every day in communist China to do what we take for granted in the United States. … Maybe everything doesn’t have to be for sale?

The Guardian newspaper reported on October 24, 2007, that:

"British police have closed down what they claim is one of the world's largest music piracy websites after a two-year pan-European operation. A series of raids in Middlesbrough and Amsterdam resulted in the arrest of a 24-year-old man and the closure of OiNK, a private website that allowed users to locate and download music and other files. * * * Police confirmed they had arrested the site's administrator on suspicion of conspiracy to defraud and infringement of copyright law. * * * File-sharing services which allow people to swap copyright-protected content have been the bete noire of the music industry ever since the rise of Napster in 2000. Although Napster was closed down, and subsequent court cases have shut or hampered the growth of services including Grokster and Kazaa, file-sharing remains popular among many music fans."

Wasn’t all this decided in the Napster case? Remember when Napster existed and how you could readily have a world of music brought into your home – you could download songs from Vivaldi, Johnny Cash, Crosby Stills, Nine Inch Nails and even the Bonzo Dog Band? How cool was that? In A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), the Ninth Circuit ruled that Napster could be held liable for contributory infringement of record company copyrights and shut the free file-sharing service down. The court rejected arguments that peer-to-peer file-sharing was a fair use or allowable personal archiving, or that First Amendment rights to free speech and association protections were implicated.

This was the first major case to address the application of newer copyright laws to peer-to-peer file-sharing. And big business got what it paid for when the copyright laws were redrafted in the 1980s, with the substantial help of the recording and cable television industries to provide Draconian civil and criminal sanctions for personal use and file-sharers. E.g., civil liability for copyright infringement in 17 U.S.C. sec. 504, discussed in Evans Newton, Inc. v. Chicago Systems Software, 793 F.2d 889, 893 (7th Cir. 1986); and criminal liability for copyright infringement in 17 U.S.C. § 506.

For attorneys like me, who have had clients come into the office desperate and worried, holding in their hand a letter from some East Coast attorney for a cable television network or some big recording conglomerate, which says “pay us so many thousands of dollars now or we will sue you for your (or your child’s) downloads and/or copying of songs or movies, get judgment for big money damages, plus costs, attorney’s fees and have you criminally prosecuted to boot”, the scene ain’t pretty and gets worse when you tell them the facts of life for persons who file-share information in 2007. And it’s even worse if the Federales come calling on your client – look at the U.S. Department of Justice Computer Crimes & Intellectual Property Section (CCIPS); and on copyright violations.

You might check out a few potential defenses, which could apply to your client, including the possession of downloaded or copied songs as being archive copies (see 17 U.S.C. sec. 117), or that such might possibly constitute a fair use (17 U.S.C. sec. 108). If there has been no search and discovery of evidence that your client (or his kid) actually downloaded or burned the music files, then you might be able to argue that the client has not personally violated the copyright laws, as mere possession alone should not be enough. A parent’s liability for the acts of a minor child is also limited to $5,000 per act under sec. 895.035, Stats. See, N.E.M. by Kryshak v. Strigel, 208 Wis.2d 1, 559 N.W.2d 256 (1997), for definition as to what constitutes a single act.

In Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984), the United States Supreme Court held that VCR taping of television shows for personal “time-shifting” purposes, i.e., to watch them later, was not violative of federal copyright laws. The issue of the legality of “librarying” or “archiving” such copies was left for another day. A & M Records v. Napster can be read to hold that file-sharing and downloading of music, even for personal use and archiving, and not for commercial advantage or private financial gain, is not a fair use and violates current copyright laws, which were rewritten after the Sony decision. That is how the corporate media giants and recording industry sees it. How do you see it?