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Here are the show notes for this week’s episode:

Shownotes for The Singularity Law Podcast: Episode 2 for October 5, 2008

Our Panel for Today:

MPAA v. RealNetworks

• WSJ: “Right to Copy DVDs to PCs at Center of Copyright Spat”
• Wired: “MPAA, RealNetworks Wage Court Battle Over DVD-Copying Software”
• LA Times: “MPAA vs. RealNetworks”

RIAA Lawsuits – Discussion of the EFF’s Report

• EFF Report: “RIAA v. The People: Five Years Later”
• EFF: “RIAA Lawsuit Campaign Losing Credibility“

Did Statutory Royalties Almost Spell the End of iTunes?

• Apple’s Submission to the Copyright Royalty Board
• IPKat: “Is this the end for iTunes?”
• Tech Law Prof Blog: “Apple Threatens to Take Its iBall and Go Home if Artist Royalties Rise”
• LATimes: “Digital music royalties for songwriters left unchanged”
• “Copyright Royalty Board Keeps Download Rates The Same; iTunes ‘Saved’”

Online Poker Cheating Scandal

• “‘Back Door’ Cheating Scandal Rocks Online Poker”
• MSNBC: “Poker site cheating plot a high-stakes whodunit”

Network Neutrality: A Few Observations

• Michael Scott Writes: “Network Neutrality: To Regulate or Not to Regulate”
• WGA: “Winning the Fight for Net Neutrality”

Talking Point of the Week: MI6 Photos and Data Accidentally Sold on eBay

• “MI6 Terror Photos, Data Accidentally Sold On Ebay”

This recording is an informational resource only. It is not designed to offer legal advice.

Click here to download this podcast.

Here are the show notes for this week’s episode:

Shownotes for Singularity Law Podcast Episode 1 (September 29, 2008)

Our Panel for Today:

Cloud Computing

• “Cloud computing” (Wikipedia)
• “Cloud computing may draw government action”
• “Clouded in uncertainty – the legal pitfalls of cloud computing”
• “Cloud computing is a trap, warns GNU founder Richard Stallman”

Walmart and DRM

• “Wal*Mart shutting down DRM server, nuking your music collection — only people who pay for music risk losing it to DRM shenanigans”
• EFF: “And Walmart Makes Three: Another Music Service Plans to Shut Down DRM Support”
• Josh Kagan Writes: “Ten Reasons Why DRM Schemes Are Bad For Society”

Capitol Records v. Thomas

• Text of Court’s Decision (Sept. 24, 2008)
• Josh Kagan Writes: “Capitol v. Thomas: For RIAA, Better Than “Making Available” May Be Difficult To Prove”
• Michael Scott Writes: “Prove Our Case? . . . We Don’t Need to Prove Our Stinkin’ Case!! Just Fork Over the Money”
• EFF: “Capitol v. Thomas: Judge Orders New Trial, Implores Congress to Lower Statutory Penalties for P2P”
• National Car Rental v. Computer Associates, 991 F.2d 426 (8th Cir. 1993)
• Perfect 10 v. Amazon.com (9th Cir. 2007)

New Copyright Legislation (PRO-IP Act)

• Text of PRO-IP Act as passed by the Senate
• “Congress Passes PRO-IP Act, but Bush May Veto”
• “Intellectual property bill passes in the House”
• “Senate unanimously passes RIAA-backed bill”
• “Bush administration opposes RIAA-based copyright bill”

Talking Point of the Week — Banned from the Internet for Life

• EU Makes it Official: “You Can’t Randomly Ban People From the Internet”
• EFF: “The Struggles of France’s Three Strikes Law”
• EU: “Net Access is a Human Right, We’re Not Going To Take That Away”

This recording is an informational resource only. It is not designed to offer legal advice.

If you haven’t been following this case, the solution might seem obvious. Why doesn’t the copyright owner simply present evidence that the defendant actually distributed some copies? But it’s not that simple, and I don’t think the RIAA can win this time. Here’s why.

Recording companies identify plaintiffs through a fairly crude process.² When an Internet user runs a file-sharing application that uses the peer-to-peer model, the file-sharing application typically searches the user’s computer for media files and indexes all that it finds. The index will normally contain a list of the audio files sorted by artist, album, genre, and some other criteria. It then uploads this index to another computer on the peer-to-peer network with a fast connection and large storage capacity. The computers that store indexes of other users’ files are commonly called “supernodes,” while other users are called simply “nodes.”

When one node on the network wants to find a particular recording, it submits a search query to a supernode. The supernode returns a response that indicates which computers on the file-sharing network have copies of the file along with the IP addresses of those computers. When a copyright owner (or one of its contractors such as MediaSentry, a company that provides online copyright enforcement services) wants to identify infringers, it connects to a file-sharing network as a node and searches for the name of a recording for which it owns the copyright. When the supernode returns a list of computers that are offering the file for download, the copyright owner sends another query to the supernode called “find more from this user” that returns a list of all of the files being offered from one of those computers. The copyright owner then brings suit against the Internet subscriber using that IP address for damages arising from infringement of the copyright owner’s exclusive distribution right under 17 USCS § 106(3).

Assuming that the indices generated by the defendants’ computers accurately convey the media files that are hosted by that node, the copyright owner now has an accurate list of files that the defendant is making available to the public–nothing less and nothing more. The node is offering these files for download and, if a third party wants to initiate a file transfer, such a transfer will likely occur. But neither the supernode nor the node contains any evidence that such a transfer actually took place. In other words, the copyright owner has plenty of evidence that the defendant made an offer to distribute infringing copies but no evidence that anyone actually took him up on that offer. Worse yet, given the number of nodes available on most file-sharing networks at any one time (typically millions or more), for popular sound recordings and movies, it is actually exceedingly unlikely that most nodes have ever consummated an outgoing transfer because there are so many other nodes with copies of the same content.

In a court filing, an RIAA attorney contended that ”requiring proof of actual transfers would cripple efforts to enforce copyright owners’ rights online – and would solely benefit those who seek to freeload off plaintiff’s investment.”³ If the plaintiffs continue to limit themselves to the methods I described above, I don’t doubt this.  But there’s no question in my mind that “making available” is not equivalent to any of the exclusive rights enumerated in the Copyright Act.⁴ To win with the evidence they have, the plaintiff would need to in effect fashion a new kind of claim for attempted copyright infringement. In the Ninth Circuit, judges have already resisted such attempts.  In Perfect 10 v. Amazon.com, the Court in dicta blocked what it called “the proposition that merely making images ‘available’ violates the copyright owner’s distribution right.”⁵ A separate line of cases has also evolved out of an Eighth Circuit case⁶ that has been applied to file-sharing actions. These Judges consistently find that “record companies must show that an unlawful copy was disseminated ‘to the public.’”

The problem here is that, because of the way the Internet works, we don’t really have those kinds of records in an easily accessible form anywhere. The RIAA seems to understand this.  It’s one thing to use the discovery process to find out what a particular computer has downloaded. That’s trivial. But finding out what other computers have downloaded from a defendant, while not impossible, could be extremely difficult.

For this reason, I don’t think Capitol and MediaSentry can win this one.

This weblog is an informational resource only. It is not designed to offer legal advice.

1. Full text at http://www.eff.org/files/filenode/capitol_v_thomas/10112270717.pdf.
2. Elektra Entm’t Group, Inc. v. Barker, 2008 U.S. Dist. LEXIS 25913, 14 (S.D.N.Y. Mar. 31, 2008).
3. See http://blog.wired.com/27bstroke6/files/riaathomasbrief.pdf for full text of the filing.
4. I’m standing on the shoulders of giants. See, e.g., 2-8 Nimmer on Copyright, § 8.11[A] (2008); 4 William F. Patry, Patry on Copyright, § 13.11.50 (2008).
5. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718-719 (9th Cir. Cal. 2007).
6. National Car Rental Sys., Inc. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 433 (8th Cir. Minn. 1993).