Intellectual Property Law

Colleges are turning into an IP battleground. Many of them now provide their students with computer terminals and network and Internet access. When the students then use them to share files with copyrighted songs or video games, the college authorities find themselves in the unlikely and uncomfortable position of enforcing the intellectual property rights of outside corporations against their own students.

This problem is a manifestation of the larger question of how to keep audio-visual copyrights profitable in an age of wide access to digital media. As Cardozo Law School Professor Justin Hughes points out, ?[c]opyright?s problem in the digital era is rooted in a simple fact: entertainment devices have become copying machines with easy distributive capacity." Justin Hughes, ?On the Logic of Suing One?s Customers and the Dilemma of Infringement-Based Business Models,? 22 Cardozo Arts and Entertainment Law Journal 725, 725 (2005). One response is to sabotage the medium by techniques such as spoofing (flooding it with files that look like songs but aren?t) and using digital rights management methods to prevent copying or downloading. Another is to try to channel consumers into lawful markets with new business models, based for example on subscriptions on the cable-TV pattern, or like Ruckus allowing free downloading accompanied by advertising.

Many other solutions have been suggested ? for ?eight modest proposals? see Peter K. Yu, ?P2P and the Future of Private Copying,? 76 University of Colorado Law Review 653, 698 (2005). But new market approaches face daunting difficulties in structuring royalty payments, and suffer from limited inventory ? only a few million songs are available legally out of hundreds of millions available illegally. The industry is struggling to find a new model that is acceptable to customers ? no model not broadly acceptable is likely to be profitable in the long run.

A currently popular method, based on the enforcement model of the old technology, is suing infringers. The Recording Industry Association of America (?RIAA?) has been working hard to suppress unauthorized peer-to-peer use of copyrighted material by college students. The Associated Press reported last month that RIAA has sent thousands of complaints to dozens of universities, aimed at almost 15,000 students at the 25 most heavily targeted universities. This is almost three times as many as RIAA targeted during the previous school year. See Ted Bridis, ?Music Industry Cracks Down on Colleges,? February 21, 2007. RIAA?s program is continuing ? on February 28, 2007 it announced 400 more ?pre-litigation settlement letters.? Colleges receiving complaints threaten to cut off Internet access to offenders, impose sanctions similar to those for academic cheating, or require students to bring their computers physically to a central site for purging of file-sharing programs.

It is not really known yet whether threatening college students, or suing them, reduces infringement significantly, or even whether ?sampling? music through file-sharing actually reduces legitimate sales. Professor Hughes reports that more than 1300 suits have been settled at an average amount of $3000 ? enough to be ?painful for the average person, but low enough to discourage Internet users from hiring defense lawyers.? Hughes, op. cit. at 749 (quotation apparatus omitted). In the meantime RIAA has co-opted colleges and universities into becoming their enforcement agents. Bridis quotes RIAA President Cary Sherman as saying ?We are taking advantage of [tracing] technology to make universities aware of the problem on their campuses. They need to be sending a message to their students about how to live a lawful life.?

Today's Blogger:  Nan Joesten