April 22, 2004

Defining the Margins of the Debate

Jon Healey of the Los Angeles Times set the stage for this panel. In December 2003 the DC Circuit decided that copyright owners may not use the subpoena provision of the DMCA to get from ISPs the identities of P2P network users who are allegedly committing copyright infringement on the ISPs' networks. This decision, which reversed a lower court ruling to the contrary, relieved some privacy- and anonymous speech-based concerns that a mere allegation of copyright infringement could authorize a clerk of court to issue a disclosure order to an ISP. Other threads of debate that Healey introduced were the effects of this ruling on civil lawsuits against individual file traders, and the relative merits of civil versus criminal enforcement against P2P users. A final piece of context is the pair of lawsuits against companies that write and distribute P2P software (The 7th Circuit held Aimster liable for secondary infringement; a trial court in California held to the contrary for Grokster, but that case is currently on appeal.)

Disclosure of File Uploaders' Identities

The panelists appeared to share a core sense of agreement that file uploaders don't have an absolute rights against the disclosure of their identities under some circumstances; neither privacy interests northe right to anonymous speech should provide such protection. The panelists diverged, however, on what circumstances ought to be present to make this disclosure permissible.

Wendy Seltzer (EFF) argued that copyright holders are only entitled to the identities of alleged uploaders after they've filed a complaint alleging facts that make up a prima facie case of copyright infringement. Mark Lemley (Boalt Hall School of Law) argued that, overall, imposing this level of procedural burden raises the cost of bringing enforcement actions that are very likely to succeed (or at least provoke a settlement). Stacey Dogan (Northeastern University School of Law) generally agreed.

The panel linked the Grokster decision to the initiation of lawsuits against individuals, and the DC Circuit's decision to the intrduction of a bill in the California Senate that would criminalize making available on the Internet commercial recordings or audiovisual works works without attaching one's name and address to it. Mark Lemley later characterized this as "an end-run" around the DC Circuit's Verizon decision.

Trading Individuals for Technology

Again, there was general agreement on a couple of core goals. Artists should be compensated for their work, and it's desirable to let P2P and other technologies develop.

Lemley offered one view of how to help promote these goals. In a "provocative" comment (his characterization), bringing criminal charges against a few file traders could have a huge deterrent effect and thus provide a relatively efficient means of quelling some file trading. This, in turn, might reduce some of the heat being applied through legislation that is directed against P2P technology itself. Lemley described this kind of action as part of a continuum of regulation that also includes civil lawsuits and an administrative mechanism that would monitor usage, collect money, and distribute it to the parties entitled to receive it. Wendy Seltzer described some of EFF's ideas on compensation mechanisms, which center around voluntary collective licensing by record labels. Such plans, Lemley suggested, might get around the "sclerotic" structure of overlapping and jointly held copyrights, which can make it difficult or impossible for recording companies to obtain licenses for online distribution.

This last mechanism -- levies and the related idea of compulsory licenses -- exposed another aspect of privacy and liberty concerns. On the one hand, Lemley noted, levies require some monitoring of individuals' uses of works. Others pointed out, however, that levies might at least keep the collection and disclosure of this information under more control, and prevent it from providing the basis of repeated legal battles. A number of proposals are floating around, and are about to be discussed on the plenary panel "Facing the Music: Can Creators Get Paid for P2P File Sharing?"

Posted by aaronb at April 22, 2004 02:34 PM
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