When the Recording Industry Association of America decided in December to stop filing bulk lawsuits against college students, several students in my “Culture, Law, and Politics of the Internet” course asked me to comment on the strategy. Here is what I said:
Over all, the [recording industry’s] approach was increasingly losing steam, both as a public-relations tactic and financially. More important, if the RIAA had any hope of creating tension between students and administrators, it ultimately backfired. Although when the first wave of letters went out there were upset students and parents who expressed themselves openly, the more that everyone involved came to understand the issues of who was threatening to sue whom, the more solidarity it created among those of us [at colleges]: students and their families, staff and faculty members. Legal costs and complications also boomeranged.
Be that as it may, the end of suing students does not signal the end of the RIAA’s efforts. The RIAA has shifted its immediate focus to Internet-service providers. As a rule, ISP’s enjoy “passive conduit status“—that is, immunity from legal action because the alleged infringement is neither uploaded nor downloaded by a server of the ISP. But under the same safe-harbor provision (512(a) of the DMCA), an ISP also has an obligation to “terminate” the accounts of “repeat offenders.”
Stay tuned. No definitions or case law exist to determine what those terms mean. So while it is smart on the part of a content user to probe this potential liability, doing so could also result in extensive litigation. That the RIAA is motivated to find a deep pocket is not a new observation; whether the organization—backed by the labels and their stake holders—has money enough to last through extended litigation is where the real question lies, especially since entrepreneurs are offering new business models every day.
Out of this creative class, I expect legal scholars and activists, entrepreneurs, keen social observers, and great technologists to emerge! For it is this generation that has the challenge of balancing intellectual-property laws with market models, appropriate social norms, and emerging technologies. In my rocking chair, if not before, I look forward to watching this new generation of talent remake the world! —Tracy Mitrano
Tracy Mitrano, our January guest blogger, is director of information-technology policy in Cornell University’s Office of Information Technologies, where she also directs the computer policy and law program.Return to Top