Oct. 9, 2003 – Vol. 23 No. 2

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    Professor says music industry, courts are suing wrong party

    By Peter Schuler
    News Office

    Doug Lichtman, Professor in the Law School, doubts that suing individuals for copyright infringement will remedy the escalating problem of music piracy on the Internet.
    The Recording Industry Association of America recently took its piracy fight directly to its fans by suing individuals for copyright infringement for sharing song files over the Internet. But Doug Lichtman wonders if suing 261 college students will really remedy the escalating piracy of copyrighted songs.

    A Professor in the Law School, Lichtman also is an expert on the impact of new technologies on traditional patent, copyright and trademark laws.

    “Because the federal courts have been reluctant to hold liable Web sites like Grokster and KaZaA, the industry has gone after the end user,” Lichtman explained.

    He said the courts have been hesitant because it is the consumers, not the Web sites, who actually decide to use the technology to pirate copyrighted songs.

    Lichtman disagrees, however, with the courts’ analysis. “The 261 individuals who were recently sued were randomly chosen from millions who have unlawfully shared copyrighted files,” he said.

    “I believe it would be far better if there were instead meaningful legal engagement between the major parties involved—the music industry and the Web sites that facilitate file sharing. That litigation would provide an opportunity for the legal process to balance the complicated equities when copyright law is applied to the Internet.”

    With CD revenues in a steep decline, from $14.6 billion to $12.6 billion in 1999, the stakes are very high for the music industry, and file swapping has totally transformed the business of music.

    “We need all the issues fully examined and the public interest protected. That will not be the case when a billion-dollar industry sues individual defendants with modest resources, who will justifiably choose an out-of-court settlement over protracted litigation with the RIAA.”

    Lichtman instead believes individuals should be immunized from liability and points out that targeting only a tiny percentage of file-sharing end users is inherently unfair. He also notes that legal solutions to the problem have emerged, such as Apple’s iTunes, which offers consumers instantly downloadable music at a modest price, with appropriate royalties paid to copyright holders.

    “The RIAA should focus on the intermediaries,” Lichtman explained, “and courts should help them by applying traditional legal theories such as negligence to ask whether a large file-sharing Web site took reasonable precautions in the design of its technology to discourage illegal activity. The sites admittedly have both legal and illegal applications, but courts should be able to hold liable sites that could have, but did not, avoid the problem up-front.”

    Lichtman acknowledges that consumers have found other techniques such as point-to-point file sharing that avoids the commercial sites completely, “and thus, this genie will never return to her bottle,” he said.

    However, he strongly believes it may still be possible to address music piracy with strong legal responses, combined with legitimate alternatives like iTunes.

    “This approach offers much more hope than dragging 261 college students through the mud,” Lichtman concluded.