II. Background

The launch of Napster in 1999 touched off the RIAA’s recent blitz of lawsuits against a wide assortment of file-sharers and copyright infringers. Prior to Napster’s 1999 launch, only sophisticated computer users engaged in extensive file-sharing. The release of user-friendly Napster quickly popularized the concept of peer-to-peer file sharing.  [3]  Napster relied on a centralized server that indexed every file shared on the Napster network by various individuals.  [4]   Users seeking music files on the network relied on the central Napster server for addresses and file indexes. This “first generation” structure allowed Napster to exercise extensive control over its file sharing network. However, Napster’s centralized nature also made it an obvious and easy target for infringement litigation by the RIAA. Because Napster exercised such control over its centralized network, courts were able to reasonably order the removal or filtering of copyrighted materials.  [5]   But even while this drawn out legal haggling crippled Napster, “second generation” networks were quickly filling user demands for peer-to-peer file sharing.

 

Learning from the demise of Napster and its centralized server structure, peer-to-peer developers sought a decentralized structure that would both improve efficiency and evade countermeasures by the RIAA. The first of these second generation networks was Gnutella, which simply connected users directly to one another in a massive, decentralized network.  [6]  With no centralized server, there was no obvious user or entity against whom the RIAA could easily file suit. However, various inefficiencies hampered this setup, prompting the emergence of a third major peer-to-peer network: FastTrack.  [7] 

The FastTrack network’s clients included Morpheus, Grokster, the subject of significant litigation, and Kazaa, the subject of the current litigation.  [8]  FastTrack’s immense popularity and efficiency raised concerns for the RIAA. The RIAA could not simply target a central server or operator with litigation, as they did with Napster. Eventually a movie studio, MGM Studios, successfully brought suit against Grokster in a 2005 U.S. Supreme Court case.  [9]  The Court did not overturn the Sony Betamax rule, which provides a safe harbor for technologies such as VCRs that potentially infringe copyrights, so long as those technologies are capable of substantial non-infringing uses.  [10]

However, the Court still found Grokster liable for copyright infringement on the FastTrack network via a new theory: inducement. Where one distributes a device with the object of promoting its use to infringe copyright, the distributor can be held liable for resulting acts of infringement by third parties.  [11]  While this litigation slowed the developers of the Grokster client, open-source developers created a slew of alternative clients capable of accessing the FastTrack network.  [12]  The distributed nature of both the network and client development has blunted the RIAA’s ability to stop file sharing. Even the RIAA’s technology-based strategies, such as flooding networks with fake files, have quickly been overcome by new sharing technologies.  [13]  Unable to shut down the networks themselves, the RIAA began filing suits against individuals suspected of infringing.

 

 

 

III. Current Litigation

Since 2003, the RIAA has filed approximately 20,000 lawsuits against individuals suspected of file sharing.  [14]  Surprisingly, the case against Thomas was the first to reach a jury verdict. The RIAA dropped several other cases after embarrassingly suing a dead grandmother [15], a Mac user for using the Windows-only Kazaa program [16], and a user with mistaken identity.  [17]  However, the vast majority of suits typically settled for a few thousand dollars.  [18]  Thus, Thomas’ case is notable for the legal precedence set for future litigation.

 

Significantly, the RIAA never established the actual transfer of files from Thomas’ computer to another user. Instead, the RIAA only proved that a computer, which may or may not have been Thomas’s, “made available” files for potential sharing. First, the RIAA claimed that its investigators found over 1,700 songs being shared on the Kazaa network under a username and IP address linked to Thomas.  [19]  While the username was never proven to be hers, the RIAA believed it belonged to Thomas because she used it on several other online services. Second, although the IP address was also linked to Thomas, her defense claimed that another individual could have “spoofed” the address, sending out false data and pretending to be her. Third, the RIAA never proved the download of music files by anyone other than its own investigatory agents. Instead, they argued that liability attached simply by “making available” the files, significantly reducing their burden of proof.  [20]  Importantly, the RIAA never found evidence of the allegedly shared files on Thomas’ computer. She replaced her supposedly failed hard drive soon after being contacted by the RIAA, potentially destroying any such evidence.  [21]

IV. Measuring the Litigation’s Impact

Although the RIAA hoped this series of litigation would stem the tide of illegal file sharing, it is unclear how successful their strategy has been. A major difficulty in measuring the litigation’s impact is the inability to develop reliable data on file sharing, from the number of users to the number of files shared to the value of the files shared. The RIAA is unable to calculate the actual damages that they have suffered. Instead, they are forced to seek punitive damages as available under the Copyright Act.  [22]

Even though the “rate of growth in peer-to-peer users slowed in 2006,” the factors that caused that slowing remain unclear.  [23]  While the RIAA’s litigation blitz may have deterred some new peer-to-peer users, the slowed growth could also be attributed to a number of other potential factors, such as market saturation and improved monitoring and filtering on college campuses. This statistic also ignores the massive user base already utilizing peer-to-peer services.

Furthermore, “the number of files downloaded through P-to-P services increased 47 percent between 2005 and 2006, from 3.4 billion to 5 billion,” suggesting that file sharing by current users is becoming more intense.  [24]  This statistic also fails to capture the evolution of file sharing over the past half-decade; specifically, the emergence of BitTorrent, enabling users to efficiently share massive, previously unwieldy files. The study does not seem to differentiate between music files and other files, which could range from software and television shows to full-length movies. This method of tallying is problematic, since it does not recognize the varying values of different media files.

 

This method also fails to account for the increasingly popular tactic of bundling files together for easier transfers. Because protocols like BitTorrent are most efficient with large files, many file sharers simply package dozens of files, such as the tracks of an entire music album, into a single compressed file. Thus, most statistics on file sharing form an unreliable basis upon which to form broad conclusions on the growth and extent of file sharing.

 

V. Implications

Through its lawsuit against Jammie Thomas, the RIAA successfully established its “making available” theory. Barring a successful appeal, this holding will significantly ease the RIAA’s burden of proof in future litigation. Instead of the relatively difficult task of locating an actual transfer between two file sharers, the RIAA will only need evidence that the defendant made a copyrighted work available for download. Thus, evidence from its investigatory agents, such as SafeNet, will be sufficient.

 

This standard represents a potential danger for unsophisticated computer users who set their security too low.  [25]  Since low security settings may enable access by other users, these users may be “making available” any copyrighted works on their machines.

 

This ruling also endangered unsophisticated users when the jury ignored the defense’s IP spoofing theory.  [26]  While advanced users might defend themselves against such problems, most computer users are ignorant of the various issues surrounding online identification. Thus, this ruling opens most internet users to litigation for infringement committed by malicious users who “spoof” their IP and other online identification information.

 

As in most emerging legal frontiers, the RIAA sought to establish favorable legal precedents through dozens, if not hundreds, of minor cases against relatively unsophisticated defendants.  [27]  Most of their litigation targeted people unable to effectively defend themselves, who had never hired a lawyer and who had no legal experience. Barring a successful appeal by Thomas, the RIAA may succeed in establishing a legal bulwark against future challenges to its copyright theories.