Door Closes . . .
Monday, a federal judge in Manhattan approved a class-action
settlement with Sony BMG over the recent rootkit fiasco. A
quick recap: Sony BMG, without telling anybody, sold 52 different
music CDs that contained an embedded software program (the
program is called “rootkit”). When you played one of these
CDs on your PC, the software installed itself on your computer.
Sony BMG’s purpose for doing this was to limit what you could
do with the music you just bought, but the software in fact
destabilized computers’ operating systems and made the infected
computers more vulnerable to viruses. The software also communicated
information about users’ computers back to Sony BMG. At least
4.7 million CDs like this were sold.
Caught with their hands in the cookie jar, Sony BMG agreed
to make nice, so if you bought, received or used one of the
infected CDs after August 1, 2003, you’re eligible for a new
CD, MP3s of the songs on the albums, and maybe even a little
A list of the CDs that contained the rootkit program can be
found here: cp.sony bmg.com/xcp/english/titles.html. More
info about claiming your settlement can be found here: www.eff.org/sony.
Meantime, last Friday, another federal judge in Manhattan
dropped the ball in what should have been a pivotal case in
the RIAA’s reign of terror against some 20,000 individuals
the RIAA is suing for using P2P file- sharing programs like
Limewire, BearShare, and eDonkey. One brave defendant made
a comprehensive challenge to the RIAA’s tactics and the fundamental
basis of these lawsuits. To me, the most interesting part
of this challenge was the argument that the RIAA had not alleged
any infringement. You see, the RIAA investigators can’t detect
actual downloading while it is taking place. What they see
is the “share file,” the part of the P2P program that makes
digital music files on a user’s hard-drive available to others
on the network to upload. The investigator then uploads a
couple of songs to verify that they are the copyrighted material
of an RIAA member, and takes a snapshot of the entire share
file. That’s the sum total of the RIAA’s evidence against
all these kids.
Now, the RIAA’s uploading of a couple songs from someone’s
share file isn’t infringement, for the simple reason that
one can’t infringe one’s own material. So the RIAA’s argument
is that simply making the digital music files available
to others for download is an act of infringement, even though
no transfer or other sort of overt act has taken place. The
Defendant in this case is arguing that without proof that
an actual digital file was transferred to someone else, there
is no infringement; that merely having digital files available
for others to take (or not), without more, cannot form the
basis of an infringement lawsuit.
It’s an interesting question, and one for which there is no
clear-cut issue. And thousands of lawsuits across the country
that the RIAA has brought against normal citizens—mostly kids—
hang in the balance. The “making available” issue was important
enough that the Electronic Frontier Foundation submitted an
amicus brief on the Defendant’s behalf, and the United States
Department of Justice filed a brief on behalf of the RIAA.
(Remember, the Bush administration considers kids downloading
the new Gnarls Barkley song for free to be a threat to our
So the matter was set for a hearing last Friday. According
to published reports, the judge started the hearing by saying
that it was his understanding that the RIAA was alleging that
the Defendant had illegally downloaded all of the songs in
the share file. The RIAA attorney, to his credit, told the
judge that, no, that wasn’t the case, that the only downloading
that had gone on was by the RIAA’s investigators. The Defendant’s
attorney pointed out that in fact all of the songs on the
Defendant’s share file might be legitimate copies, to which
the judge observed that the “might be” was the weakness in
Defendant’s case. Ultimately, the judge told both attorneys
that he was going to rule in the RIAA’s favor, and adjourned
the hearing. A written decision will follow.
What makes this so alarming is that it’s clear the judge had
not read the parties’ papers, nor had he been adequately briefed
by his clerks. This is astounding, particularly when the issue
attracted amicus briefs from the EFF and the DOJ. You’d think
the court would be at least paying attention. Then the judge
appeared to stand the burden of proof on its head—it’s not
the Defendant’s burden to show that the digital files were
legitimate, it’s the RIAA’s burden to prove infringement.
And then, through this haze of ignorance, the judge announced
how he was going to decide the matter.
One can only hope that he has a change of heart when he actually
reviews the record. Otherwise we’ve got a travesty of justice,
and the RIAA’s sad dance of abusive litigation continues.
C. Rapp is an intellectual-property lawyer with offices in
Albany and Housatonic, Mass. He teaches art-and-entertainment
law at Albany Law School, and regularly appears as part of
the Copyright Forum on WAMC-FM’s Vox Pop program. Contact
info can be found at www.paulrapp.com.