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One Door Closes . . .


On 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 money.

A list of the CDs that contained the rootkit program can be found here: More info about claiming your settlement can be found here:

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 national security.)

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.

—Paul Rapp



Paul 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

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