Kaiser Wahab is a Media, Venture, and Tech Attorney at the NY firm of Wahab & Medenica, who loves to counsel a biz with something to say and thanks his intern, Lauren Mack, for her work on this piece. Read more on his blog or follow him on Twitter @BizMediaLaw.
There is no doubt that in 2011, copyright law isnâ€™t what it was in 1976. The web (and mobile) have all forced the aging statute to evolve in ways that were never anticipated in a world of digital everything.
Only late last year, the Obama administration began the potential reform process via an inquiry into the governmentâ€™s stance on copyright on the net, and an end result is still years to come.
While legislation stagnates, a new, aggressive approach to enforcing the 34-year-old law against online infringement by private and government interests is pushing the judicial envelope to fill the void. Hereâ€™s what it means, and some new tactics used to enforce copyright.
1. Factory Style Suits vs. Thousands of Jane & John Does
The real issue for copyright in file sharing suits is one of enforcement (i.e. content creators filing claims against individual defendants â€” each with their own filing fees, subpoenas, paperwork, and findings of fact â€” is a patently unsustainable method of fighting infringement). Recognizing the RIAAâ€™s fatal flaw in filing suit against individual music infringers, the film industry is trying a new tactic and the Hurt Locker lawsuits are prime examples.
Filed by the ominously named â€œU.S. Copyright Group Lawâ€ firm on behalf of the producers, these suits targeted thousands of bittorrent downloaders. The original suit laid out nearly 5,000 IPs, without one name-identified party. Even the RIAA hand picked candidates whose identity was tracked down prior to suit. Moreover, since the Hurt Locker suits are being filed against â€œanonâ€ users, the Copyright Group has subpoenaed ISPs in order to discover true identities.
These factory lawsuits have forced the courts to address several very problematic issues, such as:
- Whether courts should entertain suits against thousands of defendants that are vastly dispersed geographically.
- Whether courts have the tools/authority to force others (e.g. ISPs) to reveal the identities of thousands of defendants.
- Whether courts may join thousands of defendants in a single suit despite vastly different facts for each one.
- The size of monetary damage awards. For now, the courtsâ€™ disposition on these bread and butter procedural issues will really shape copyright to come.
A snapshot of early holdings on these issues:
Joinder. While some courts are still grappling with the issue, at least one has taken a stand against mass joinder. Judge Bailey of the Northern District of West Virginia severed 7,097 defendants in a prime mass porn infringer suit over â€œBatman XXX: A Porn Parody.â€
User Identities. Once a single defendant is named, the plaintiffâ€™s request for other user identities may be given greater weight than third-party user privacy. In Sonyâ€™s case against George Hotz, who showed users how to jailbreak their Playstation 3, the judge allowed Sony to subpoena Google and the web host for the usernames and IP addresses of all commenters on Hotzâ€™s YouTube video demonstration and all users who accessed Hotzâ€™s website since January 2009. Privacy advocates were shocked by the deference given Sony, who asserted the information was crucial to satisfying jurisdiction standards and proving actual distribution.
Damages. Since copyright holders are suing more individuals who do not profit from infringement, there is a movement to lower statutory damage awards. The Copyright Act allows for statutory damages of up to $150,000 per work for willful infringement, but in two music downloading cases that made it to trial (Tenenbaum and Thomas-Rasset), both judges reduced awards of $80,000 and $22,500 per work to $2,250 per work.
Although statutory damages may apply when actual damages are difficult to gauge, the judge in Thomas-Rassetâ€™s case wrote they must have â€œsome relation to actual damages.â€ He went on to state deterrence alone could not justify bloated awards when the infringement was simply about free music. Juries may not be getting the hint however, as the jury in Thomas-Rassetâ€™s third trial awarded plaintiffs $62,500 per song.
Let the Government Do It
Not to be seen as out of touch with content creators, the federal government has spurred its agencies into taking an unprecedented, active role in copyright enforcement. Hence, Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security began obtaining warrants to shut down domain names hosting/linking to infringing content and products last year. The campaign was dubbed â€” wait for it â€” â€œOperation in Our Sites.â€
The crackdown raised concerns, due to innocent sites being shut down and lacking due process (notice of seizure warrants are bypassed for expeditiousness). Despite these concerns, the government has taken the position that the violent pace at which the Internet can facilitate infringement demands swift and coordinated enforcement.
Moreover, the government is legislating enforcement solutions outside of copyright law, with the Combating Online Infringement and Counterfeits Act (COICA), which was introduced in the Senate last year. Under the billâ€™s current version, the Attorney General may bring an action against any domain name â€œdedicated to infringing activitiesâ€ for a shut down order. COICA critics harbor many of the same fears over ICEâ€™s operations, especially in determining what sites are â€œdedicated to infringing activities,â€ a standard which could potentially ensnare Google.
While copyright legislation moves at a glacial pace, copyright enforcement is the battle front du jour, and continues to evolve in bitter lawsuits. Recognizing copyright holdersâ€™ uphill battle, the government appears prepared to experiment with aggressive enforcement strategies, at the price of burdening free speech, due process, and fair play.
Until copyright law is legislatively balanced with language and mechanisms to address the Internetâ€™s fast-paced evolution, the rights holders and users will likely continue to joust through inefficient and controversial lawsuits and heavy handed governmental action.