Legal Commentary

The RIAA is turning to states to help with piracy on college campuses. Tennessee has just passed a law, and Illinois is considering one, obliging public universities to implement and enforce measures that seek to prevent copyright infringement via university networks. My (admittedly limited) understanding of currently available means for curbing such activity is that they will necessarily also prevent legitimate uses of university network resources; findings by the Common Solutions Group support my hunch. Further, it seems a heavy burden indeed to place upon universities to monitor this sort of activity?particularly when that burden will fall to state-funded schools.

On a similar note, an article in today?s Chronicle of Higher Education discusses the RIAA?s pirate-catching tactics. What caught my eye was not the RIAA?s use of LimeWire (though I found that inexplicably amusing), but the paraphrased admission by a spokesperson that ?the RIAA can tell only when a song is being offered for users to illegally download; investigators have no way of knowing when someone else is actually downloading the song?. This admission goes to the heart of the RIAA?s litigation strategy against P2P users: that simply ?making available? a copyrighted work, without more, is sufficient for a finding of copyright infringement?that offering for distribution, in other words, is equivalent to distribution. A number of district courts have tackled this issue in recent months (catalogued and analyzed by William Patry and the EFF, among others), with varied results. I am pleased that the courts are willing to engage in thoughtful assessment of the RIAA?s claims, rather than simply rubber-stamping them (most recently in this decision denying summary judgment for the RIAA against pro-se defendants). I am also concerned, however, that those courts supporting the RIAA?s interpretation of the law are creating a standard that is much too broad, and that will have unintended consequences.