EVERYONE CLAIMS innocence when subpoenas appear, but in this case itís a fair bet that Judith Sabatino, a nurse at Winchester Hospital, had neither the time nor the inclination to download 1167 files of songs ranging from the Beastie Boys to the Notorious B.I.G. No: when she says, upon first hearing about the lawsuit, "Itís probably my kids," we can assume sheís telling the truth.
Likewise, the bulk of the songs on George Nadolnyís computer were probably downloaded by his daughters Lycia and Laikyn; John Jr., not Sr., probably did the file-sharing in the Delahanty household; and Peter Delgardoís kid had to show Dad what Kazaa is. Yevgeniya Shayden, an oral technician from Newton, sums it up perfectly in her heavy Russian accent: "My kids just listened to this stupid music, and I paid for the Internet."
All these people have been sued by record companies for copyright infringement. The companies, through their trade group Recording Industry Association of America (RIAA), want to convince these households to cease music-file-swapping. Or, not so much these households, but those other ones ó the ones tallied on the bottom of Sabatinoís Kazaa screen, just to the right of where it says that she has 1167 stored music files.
Where it says: "3,232,935 users online, sharing 712,339,363 files."
In a last stand to save their industry as they have known it, music companies are trying to scare those numbers down to zero. Theyíre doing it by making very public examples of 261 families, including 46 in Eastern Massachusetts, out of an estimated 60 million illegal file-sharers.
"Thatís my luck," says Nadolny, an insulation installer in East Bridgewater, of the 230,000-to-one odds. "I can play Megabucks forever, right? But I get this."
IN AN UNFORTUNATE sign for the recording industry, Nadolny has not grounded his daughters. "A real gang of criminals," he says of 13-year-old Lycia, president of her class, and 12-year-old Laikyn, a cheerleader and soccer player. He has tried to explain to them why copying song files is wrong (see "Talking to Your Kids About File-Sharing,"). "But I think what got to them was when I said, ĎItís probably going to cost your mom and dad $4000 ó I hope you enjoyed your Christmas.í" Nadolny expects to settle his case for $3000, and to pay another $1000 in lawyerís fees.
Boston-area parents facing suits by the recording industry donít seem to be reacting as they would if told that their kids were caught in other illegal activities. John Delahanty Sr. "is a little annoyed," says Nicole (who withheld her last name), his fiancée. If his son had been caught shoplifting, John Sr. would be much more than annoyed, she says. "He would tweak."
Most people generally understand that copyright infringement is wrong ó although they regard it in much the same way as they do the 65-miles-per-hour speed limit on the Massachusetts Turnpike, says Mark Fischer, an intellectual-property attorney with the Boston office of law firm Fish and Richardson. "If thereís no police on the Pike, theyíre going to drive 75."
That, Fischer speculates, is because copyright law has traditionally existed to provide a framework for business relationships: between publisher and author, publisher and publisher, artist and licensee, etc.
Consumers, on the other hand, have never really understood how they fit into this equation when they use their stereos, computers, and other audio devices. "We gave the public these great new toys, but no rulebook," Fischer says.
Indeed. As Nadolny points out, the MP3 player he bought so his daughters could listen to downloaded music is made by Sony, which is now suing him, essentially, for using it.
ITíS POSSIBLE that Sony, Arista, Maverick, Capitol, Elektra, UMG, BMG, Warner, and Virgin will succeed in stopping adolescents, teenagers, and young adults from downloading free music, unlike those who have failed to convince them to stop smoking, drinking, skipping class, missing curfew, having sex, masturbating, getting pierced, and ó ironically ó listening to that awful music. (The lawsuits, with their massive lists of song files, indicate that todayís youths download exactly what the record labels promote: 50 Cent, Dave Matthews Band, Missy Elliott, Eminem, Lifehouse, Godsmack, Sean Paul, John Mayer, etc.) But itís unlikely.
And thatís why these lawsuits arenít so much about stealing as they are about giving. The record industry knows that its fans will take free music when they can do so; it can only hope to make it more difficult. Thatís why the RIAA keeps saying it is targeting the worst file-sharers, those with hundreds of songs in their public directories. The industry hopes to stop people from sharing their song files with others, which would theoretically squeeze off the availability of free music and bring this whole swapping craze to a halt.
In fact, one reason people never learned to think of copying music as criminal is that the industry has always seen preventing it as a hopeless cause, and has focused instead on blocking availability. Since the beginning of digitized music, stereo-equipment makers (led by Sony) deliberately made all commercial CD players without the pesky "record" feature that they so hated in cassettes, even though the technology existed. But when computer manufacturers (who were free of this conflict of interest) switched from floppies to recordable CD-ROM storage devices, the cat was out of the bag; the commercial implications were obvious to everyone, and the MP3 players and file-sharing software needed to facilitate the flow and playback of digital music files soon followed.
The industry tried to stop all this by suing the companies behind the products and services. They succeeded in some cases, but ultimately it turns out that you canít blame a manufacturer if consumers do not use its product for the intended purpose. Cigarette-paper manufacturers, for example, canít be held responsible if most people who buy their products in the 7-Eleven at 2 a.m. are actually using them to roll something stronger than tobacco. Likewise, the makers of Kazaa, Gnutella, and other file-swapping software canít be held liable if their customers fail to demonstrate proper deference to copyright law. (Makers of early swapping programs stored the file lists centrally, and thus should have known, according to the courts, that they were making copyrighted songs available; current systems let everything happen on the usersí computers so the makers can claim to be ignorant of how they are used.)
The recording industry has tried to stop copying by building copy-prevention programs into its CDs. However, that hasnít been a real winner with the fans, since the technology often interferes with the CDís ability to play on certain equipment. When BMG copy-protected early UK issues of Natalie Imbrugliaís White Lilies Island CD in 2001, the discs were unreadable by Windows PCs and some other devices; this stopped uploading, but also normal playback on those machines. "Public reaction was fierce," Fischer says. The company had to refund thousands of purchases. Further attempts have had mixed results; UMG at one point announced it would henceforth copy-protect all releases, but later withdrew the plan. The industry has just announced yet another attempt that itís calling "smart" CD technology, which it claims will eliminate playback problems and allow certain types of limited copying.
The RIAA has also helped push through a stream of legislation: the National Information Infrastructure Copyright Protection Act of 1995, the No Electronic Theft (NET) Act of 1997, and the Digital Millennium Copyright Act of 1998. These laws specified that copyright applied to cyberspace, and filled in loopholes.
While these laws did criminalize much of the targeted behavior (for instance, distribution of copyrighted material for no financial gain was not a federal crime before 1997), the feds arenít wearing themselves out punishing music downloaders. Only 32 federal copyright-infringement cases were filed in 2000. So the record companies are doing it themselves through civil suits.
THE RIAA TRIES to blur copyright-infringement distinctions in the suitsí cookie-cutter complaints, charging that each defendant has used "an online media distribution system to download ... distribute ... and make the Copyrighted Recordings available for distribution." That covers a lot of different things; the differences wonít matter in these lawsuits, but they might matter a lot in the long run.
When you find a copyrighted song on someone elseís shared drive and copy it to your computer, youíve clearly infringed, and the people charged look pretty darn guilty of that. Peter Delgardo of Quincy ó and his son ó would be hard-pressed to demonstrate that the 1200 or so files in their Kazaa folder were obtained with the consent of the copyright owners. Defenses (if any suits go to trial) will likely center on identity issues, says Seth Yurdin, a partner at Bostonís Butters, Brazilian & Small, who is representing "a handful" of the defendants. The record companies may, in some cases, have a hard time proving who among many users of the computer ó family members, roommates, business associates, and so forth ó actually downloaded the files. In fact, the plaintiffs have already abandoned one lawsuit, against a sixtysomething woman in Newbury (who does not have any children), after conceding that she probably didnít download 2000 rap and hardcore songs.
However, the potential liability is so excessive (a minimum of $750 per song) and the settlement offer so low (figures so far have been in the $2000-to-$3000 range) that no sane person will likely take the risk of going to court, especially since all the individuals being sued by the RIAA allegedly have many hundreds of pirated song files on their computers. The RIAA lawyers knew that, because those individuals were broadcasting the fact to the world.
In the preset default mode, most file-swapping software programs store song files in a shared directory that is open to all other Internet users whenever the computer is online. This allows users to copy from each other and build the vast shared depository of song files that makes the file-swapping software so worthwhile.
Whatís open to file-swappers is also open to lawyers at RIAA, who sat at their computers, looked at usersí shared-file directories, and took down the usernames and Internet IP addresses of those with more than 600 song titles. They then subpoenaed the Internet service provider ó in the local cases, Verizon ó for the names and addresses of the people holding those accounts.
Users can avoid this detection quite easily, by changing the settings so that their song files are not open to the public. They could still make the illegal copies, with little fear of getting caught; to find them out, the record companies would have to get a judgeís okay either to monitor their Internet data traffic, or to snatch their computers. Neither is likely.
But thatís fine with the RIAA, because if the threat of a lawsuit cows everyone into closing shared directories ó becoming a nation of takers, not givers ó then the recording industry will ultimately prevail. With no shared directories, there will be no files to copy.
Indeed, if you listen to the RIAA, these lawsuits are about distributing and offering to distribute ó even though such charges would be much, much tougher for the companies to prove.
They wonít have to, however, because the charges of illegal copying should be strong enough to force defendants to settle. The publicity of the case is prompting parents across the country to pull the plug on their kidsí file-swapping. Nadolny says all the people he works with have had the "donít steal music" talk with their children since his lawsuit surfaced. But he also says the incident has turned his daughters into school celebrities. So once again, parents are telling their kids not to do what the cool kids are doing. Has this ever worked? The RIAA is hoping thereís a first time for everything.
David S. Bernstein can be reached at firstname.lastname@example.org
Issue Date: September 26 - October 2, 2003
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